West Sacramento City Council
November 6, 2024

I. EXECUTIVE SUMMARY
The Project consists of an approximately 710-acre residential and mixed-use development within the Southport Framework Plan (“Southport Plan”) Area (“SF Plan Area”) in the City. The Project will provide 3,400 much needed homes, including 304 affordable homes, to meet the City’s Regional Housing Needs Allocation (“RHNA”). The Project also includes the creation of a “village core,” as envisioned by the Southport Plan, which will connect the residential neighborhoods to retail and commercial uses through a network of tree-lined streets.

The Project also includes a network of lakes and waterways, golf course, and open space areas.

Mr. Goddard lives near the intersection of Jefferson Boulevard and Burrows Avenue, which is an area outside of, but surrounded by, the Project site. Mr. Goddard repeatedly has expressed his opposition to the affordable housing provided by the Project.

As described in Section II, the City Council certified the Yarbrough EIR and approved an amendment to the West Sacramento General Plan (“General Plan”), an amendment to the Southport Plan, a rezoning, the Yarbrough Master Design Guidelines, and a Development Agreement (“Original DA”) for the Project in 2008. The Project is intended to be built out in four phases. In late 2021, ASB applied for the Phase I VTM, which implements the first phase of the Yarborough Master Plan, and the ARDA, which makes several adjustments to the Original DA. On August 15, 2024, after determining that the Phase I VTM and ARDA are consistent with the Yarbrough Master Plan and that the Yarbrough EIR adequately addresses the impacts of these approvals, the City Planning Commission approved the Phase I VTM and recommended the City Council approve the ARDA. Mr. Goddard appealed the Planning Commission decision on August 23, 2024.

CEQA Claims
Mischaracterizing the applicable legal standards under CEQA, the Goddard Appeal incorrectly claims that supplemental CEQA review of the Project is triggered because of the age of the Yarbrough EIR and that the City bears the burden of demonstrating that such review is not required. As detailed in Section III, once an EIR has been certified for a project, CEQA establishes a presumption against additional environmental review, without regard to the age of the EIR. To override this presumption, there must be substantial evidence of new or substantially more severe significant environmental impacts or new or substantially different, feasible mitigation measures or alternatives that would substantially reduce significant environmental impacts, as described in Section IV.A. As discussed in Section IV.A., the case law cited in the Goddard Appeal in support of the assertion that supplemental review of the Project is required is inapposite. None of the cited cases address the standard for requiring supplemental review after an EIR has been certified; instead, the cases address the proper CEQA baseline against which to compare impacts in a new EIR and the standard for recirculation of a not-yet certified EIR. Likewise, as explained in Section IV.B., contrary to the claims in the Goddard Appeal, changes in law or regulatory standards do not trigger supplemental environmental review under CEQA.
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The Goddard Appeal does not identify either new or substantially more severe impacts or new feasible means of reducing previously identified impacts with regard to any of the impact categories raised in the Goddard Appeal. (See Section III.C.) Instead, the Goddard Appeal makes generalized CEQA claims suggesting that, due to the passage of time and alleged changes in circumstances, the City should conduct additional CEQA analysis of the Project to demonstrate that there will not be new impacts. In his administrative appeal filed in August, Mr.

Goddard loosely referred to potential impacts associated with: (1) cumulative traffic conditions on Jefferson Boulevard, (2) emergency evacuation plans, (3) schools, (4) police, (5) water usage and quality, and (6) golf course feasibility. Mr. Goddard’s Appellant’s Brief filed last week adds new claims pertaining to four new categories of potential impacts related to: (7) flooding risks, (8) stormwater contamination and biological resources associated with retention of the Main Drain, (9) the Project’s energy demand and wastewater treatment, and (10) air quality and greenhouse gas emissions (“GHGs”). These claims are addressed in order in Sections IV.C.1 –

9. As discussed therein, the Goddard Appeal does not identify substantial evidence of new or more severe impacts or new feasible means of reducing previously identified impacts that would trigger supplemental environmental review of the Project under CEQA in any of these categories.

Subdivision Claims
With respect to Phase I VTM, as discussed in Section V.A., the Goddard Appeal does not identify any legal basis for disapproval of the Phase I VTM based on either the City’s subdivision standards (Chapter 16.20 of the City’s Municipal Code) or the Subdivision Map Act (Gov. Code § 66410 et seq.). The Subdivision Map Act provides for denial of a tentative map if a city makes one of the specified findings related to consistency of the map and design with the applicable general plan and specific plan, physical suitability of the site for the type and density of development, causing substantial environmental damage or serious public health problems, or unresolved conflict with public easements for access through or use of the subdivided property. (See Gov. Code § 66474.) The Goddard Appeal does not demonstrate substantial evidence of any of these findings.

Development Agreement Claims
As to the ARDA, the City Planning Commission’s recommendation that the City Council approve the ARDA is not an approval subject to administrative appeal. Nevertheless, the City has broad discretion regarding the terms of a development agreement, and the Goddard Appeal does not identify any legal basis for the City Council to disapprove the ARDA based on either the City’s Development Agreement standards (Chapter 17.43 of the City’s Municipal Code) or state law pertaining to development agreements (Gov. Code, § 65864 et seq.). 310
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Affordable Housing Claims
Mr. Goddard repeatedly criticizes the Project’s inclusion of affordable housing units. As explained in Section V.B., these criticisms do not identify any legal deficiency with respect to CEQA, nor any legal deficiency with respect to the City’s required findings on the Phase I VTM or the City’s approval of the ARDA. Consistent with the City’s Municipal Code, the Project must provide 10 percent of the units (304 units) as affordable units to low-income households, as required under the Original DA. In addition, ASB is required to construct an additional 84 affordable units in Phase I of the Project in compliance with its obligations for the Bridgeway Lakes II project. As compared to the Original DA, the ARDA does not change the number of units to be constructed; it only modifies the timing of their construction to increase the percentage of affordable units to be included Phase I, which will provide critical housing needed to meet the City’s RHNA obligation.

Process Claims
Finally, the Goddard Appeal demands that the City delay consideration of the Project and provide a “public workshop” regarding the Project, along with expanded noticing beyond what is legally required. As explained in Section V.C., the Goddard Appeal does not claim that any of the City’s notices or public process are legally deficient. In fact, the City has provided sufficient public noticing and public hearings regarding the Project, while also maintaining a webpage devoted to the Project with links to the prior CEQA review and prior Project approvals. In response to the Goddard Appeal, the City provided expanded noticing of the November 6, 2024, City Council hearing beyond what legally is required, there will be a public hearing on the Goddard Appeal, and the City Council’s consideration of the Project has been delayed by two months, during which time Mr. Goddard has conducted his own personal outreach to news outlets. As a result, there is no legal, nor any practical, benefit to holding a public workshop on the Project.

In summary, the Goddard Appeal does not meet the legal standards for reversing the Planning Commission’s approval of the Phase I VTM or recommended approval of the ARDA, whether pursuant to CEQA, subdivision law, development agreement law, or procedural law.

The Goddard Appeal does not identify substantial evidence that would trigger additional environmental review of the Project under CEQA or negate the Planning Commission’s findings regarding the Phase I VTM, nor does it identify any legal deficiency with the ARDA or any procedural error with respect to the City’s consideration of the Project. Mr. Goddard’s personal disklike of the Project does not provide a basis for its disapproval. For these reasons, ASB respectfully requests that the City Council deny the Goddard Appeal, affirm the Planning Commission’s approval of the Phase I VTM and CEQA determination, and approve the ARDA. 311
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II. THE YARBROUGH PROJECT, PRIOR CEQA REVIEW, AND REQUESTED

APPROVALS
The Project consists of an approximately 713-acre mixed use development located within the SF Plan Area in the City. In 2008, the City certified the Yarbrough EIR and adopted a General Plan amendment, an amendment to the Southport Plan, a rezoning, the Yarbrough Master Design Guidelines, and the Original DA for the Project (collectively, “Project Approvals”). The City Council approved an amendment to the Original DA on May 17, 2023, to extend the term an additional year, and to allow one additional one-year extension.

As described in the Yarbrough EIR, the Project consists of the “creation of a residential village with 3,004 residences of various types, a village core with commercial and mixed uses, an 18-hole golf course, extensive recreational facilities along a new chain of lakes, an elementary school (to be separately planned and built by the Washington Unified School District) on 710 acres in the Southport area’s Southwest Village” as well as “a system of landscaped pedestrian, bicycle, and equestrian trails.” (Yarbrough Draft EIR (“DEIR”), p. ES-2; see also Planning Commission Staff Report dated Aug. 1, 2024, p. 4.) The Project also includes the creation of a network of streets consistent with the General Plan Mobility Element, including the widening of Jefferson Boulevard.

The Project is intended to be built out in four phases. ASB currently is requesting the City’s approval of the Phase I VTM and the ARDA. The Phase I VTM covers 179 acres of the approximately 710-acre Project site. The existing zoning designations of parcels within the area covered by the Phase I VTM include Residential One Family (R-1B), Residential-Medium Density (R-2), Residential Multi-Family (R-3), Public/Quasi-Public (PQP), Recreation and Parks (RP), and Public Open Space (POS). The Phase I VTM proposes 548 “small lots” for detached single-family homes and 70.4 acres of “large lot” parcels that consist of a variety of use types, including but not limited to: a future relocated Fire Station #42, stormwater detention basins, landscaped parkways, small pocket parks, a five-acre neighborhood park, and two parcels (12.73 acres) for affordable housing units. The Phase I VTM’s proposed lot configurations and uses are consistent with the existing zoning designations and the Yarbrough EIR.

The proposed ARDA modifies the Original DA with changes that can be classified as falling within one of several categories, none of which result in any increase in environmental impacts: (1) revisions to reflect prior conditions already satisfied by the Project (e.g., approval of the Drainage Master Plan and Water Master Plan); (2) redistribution of existing Project funding obligations and revision of Project conditions to reflect infrastructure completed since Project approval; (3) removal of obligations to construct specified levee improvements that no longer are needed; (4) removal of references to a police annex because the Project instead will fund public safety services through a proposed community facilities district (“CFD”) or other funding mechanism; (5) increase in capital finance costs to reflect inflation; (6) clarification of timelines for existing Project obligations; (7) revisions to reflect that the Reclamation District 900 Main Drainage Canal (“Main Drain”) no longer will be removed; (8) revisions to reflect updates in the 312
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2035 General Plan adopted in 2016; and (9) grammatical revisions. As described in Section IV below, none of these modifications trigger supplemental review of the Project under CEQA.

III. LEGAL STANDARD FOR SUPPLEMENTAL REVIEW UNDER CEQA
For purposes of the City’s consideration of the proposed Phase I VTM and ARDA, the City must evaluate whether the environmental impacts associated with these approvals are consistent with the impacts previously disclosed and evaluated in the Yarbrough EIR. Once an EIR has been certified for a Project, “CEQA establishes a presumption against additional environmental review.” (San Diego Navy Broadway Complex Coalition v. City of San Diego (2010) 185 Cal.App.4th 924, 928 (“Navy Broadway”).) This presumption is codified in Public Resources Code, section 21166 (“Section 21166”) and CEQA Guidelines section 15162 (“Section 15162”). Contrary to the claims in the Goddard Appeal, CEQA does not automatically require supplemental review due to the passage of time, regardless of the age of the EIR.

Instead, Sections 21166 and 15162 provide that, when an EIR has been prepared for a project, no subsequent or supplemental EIR shall be prepared unless the local agency (here the City) determines one or more of the following events has occurred:
(1) Substantial changes are proposed in the project which will require major revisions of the previous EIR . . . due to the involvement of new significant environmental effects or a substantial increase in the severity of previously identified significant effects;
(2) Substantial changes occur with respect to the circumstances under which the project is undertaken which will require major revisions of the previous EIR . . . due to the involvement of new significant environmental effects or a substantial increase in the severity of previously identified significant effects; or
(3) New information of substantial importance, which was not known and could not have been known with the exercise of reasonable diligence at the time the previous EIR was certified as complete [], shows any of the following:
(A) The project will have one or more significant effects not discussed in the previous EIR or negative declaration;
(B) Significant effects previously examined will be substantially more severe than shown in the previous EIR;
(C) Mitigation measures or alternatives previously found not to be feasible would in fact be feasible, and would substantially reduce one or more significant effects of the project, but the project proponents decline to adopt the mitigation measure or alternative; or
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(D) Mitigation measures or alternatives which are considerably different from those analyzed in the previous EIR would substantially reduce one or more significant effects on the environment, but the project proponents decline to adopt the mitigation measure or alternative.
(CEQA Guidelines, § 15162; see also Pub. Res. Code (“PRC”), § 21166.) “[S]ection 21166 comes into play precisely because in-depth review has already occurred, the time for challenging the sufficiency of the original EIR has long since expired [], and the question is whether circumstances have changed enough to justify repeating a substantial portion of the process.” (Bowman v. City of Petaluma (1986) 185 Cal.App.3d 1065, 1073-74 (“Bowman”).) “The low threshold for requiring the preparation of an EIR in the first instance is no longer applicable; instead, agencies are prohibited from requiring further environmental review unless the stated conditions are met.” (Friends of Davis v. City of Davis (2000) 83 Cal.App.4th 1004, 1017–18 (“Friends of Davis”).)
“A party challenging an agency's decision under section 21166 has the burden to demonstrate that the agency's decision is not supported by substantial evidence and is therefore improper.” (Committee for Re-Evaluation of T-Line Loop v. San Francisco Municipal Transportation Agency (2016) 6 Cal.App.5th 1237, 1247.) For purposes of CEQA, “substantial evidence includes fact, a reasonable assumption predicated upon fact, or expert opinion supported by fact” and does not include “argument, speculation, unsubstantiated opinion or narrative, evidence that is clearly inaccurate or erroneous, or evidence of social or economic impacts that do not contribute to, or are not caused by, physical impacts on the environment.” (Pub. Res. Code, § 20180(e).)
In Appellant’s Brief, Mr. Goddard attempts to distinguish the decisions in Bowman, Friends of Davis, and Navy Broadway on their facts, while ignoring the cases’ discussions of the appropriate legal standard for supplemental CEQA review after preparation of a prior CEQA document, which Mr. Goddard conflates with the standard that applies when a lead agency is determining whether to prepare an EIR in the first instance. Moreover, Mr. Goddard’s summaries of the facts in these cases are either misleading or incorrect.

Bowman involved a challenge to the City of Petaluma’s approval of a tentative map and rezoning for a 307-unit subdivision project based on claims that the City failed to prepare a subsequent or supplemental EIR (not the original decision whether to prepare an EIR, as the Goddard Appeal claims). (Bowman, 185 Cal.App.3d at 1070, 1077.) The project at issue had been previously approved and evaluated in an EIR certified five years earlier. The trial court applied the wrong standard of review, and as a result the Court of Appeal provided a lengthy explanation that “the kind of showing which requires preparation of an original EIR” is not the same test that applies to “an agency’s decision after completion of an original EIR” under Public Resources Code section 21166. (Id. at 1071.) The Court evaluated whether modifications to the project’s vehicular access made after the original EIR was certified would, as petitioners argued, 314
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cause traffic and noise impacts necessitating supplemental environmental review. (Bowman, 185 Cal.App.3d at 1071.) The Court held that the traffic conclusions pertaining to the modified access “were substantially identical to those of the original EIR” and the Court stated it could “discern nothing in th[e] evidence, or anywhere else in the record, which compels the conclusion that the revisions were ‘substantial.’” (Id.) As to noise, the Court pointed out that the trial court’s analysis was flawed as it “made no attempt to distinguish between noise effects attributable to the project as a whole and those caused by project revisions,” and concluded that under the correct Section 21166 standard, nothing in the record suggested that the modifications to access were responsible for any “supposed noise problem.” (Id.) Friends of Davis involved proposed development on a parcel of property within an existing developed area called “Aggie Village” in the City of Davis. (Friends of Davis, 83 Cal.App.4th at 1007.) Contrary to Mr. Goddard’s claim, the approval at issue was not treated as ministerial, thus the Court undertook the full Section 21166 CEQA analysis. (Id. at 1018.) The proposed project, a retail development, was submitted to the city for design review. The University of Davis had evaluated commercial development on the parcel in its prior long-range development plan (“LRDP”) EIR, and the City of Davis relied upon that review in pre-zoning and annexing the property. The statute of limitations period to challenge the earlier LRDP EIR, pre-zoning, and annexation, had expired, meaning “compliance with CEQA [was] conclusively presumed unless circumstances requiring a subsequent or supplemental EIR are present.” (Id. at p. 1017.) Similar to Mr. Goddard’s claims, the claims by plaintiff in Friends of Davis were “based solely upon speculation and unsubstantiated opinion.” (Id. at 1020.) Ultimately, the Court of Appeal rejected plaintiff’s claims that identification of the tenant as a chain store required supplemental review.

Finally, Navy Broadway, involved a challenge to a waterfront development project in the City of San Diego. (Navy Broadway, 185 Cal.App.4th 924.) In 1992, in conjunction with the city’s approval of a development agreement for the project, the City certified an EIR evaluating the project’s impacts, and over a decade later in 2006 and 2007, the developer submitted its construction plans to the Centre City Development Corporation (“CCDC”), for the consistency review required by the development agreement. (Id. at 928.) In connection with its consistency review, the CCDC determined that no further environmental review was needed, and after an appeal by petitioners this determination was upheld by the city council. (Id.) Petitioners challenged this decision, arguing that a subsequent or supplemental EIR was required to evaluate impacts associated with GHGs and global climate change. (Id. at 937.) The Court undertook a detailed analysis of whether supplemental environmental was required under Section 21166, which is the basis for our citation to the case in this letter. (Id. at 932-41.) Mr. Goddard has not stated any legal basis for why the cited statements of law from Navy Broadway would not apply here.
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IV. RESPONSE TO GODDARD APPEAL CEQA CLAIMS
A. The Goddard Appeal Misapplies and Mischaracterizes CEQA Case Law.

The Goddard Appeal’s reliance on Neighbors for Smart Rail v. Exposition Metro Line Construction Authority (2013) 57 Cal.4th 439 (“Neighbors”) is misplaced. In Neighbors, the court held that the original EIR prepared for Phase 2 of the Los Angeles light rail line impermissibly used a “future baseline” against which to measure the environmental impacts of the project (although the court nonetheless upheld the EIR because decision-makers and the public were not deprived of substantial relevant information on those impacts). (Id. at 446.) In Neighbors, the EIR, preparation of which commenced in 2007, used only a 2030 baseline against which to analyze the impacts of the project. The court found that, while use of a baseline other than existing conditions sometimes is appropriate, the Expo Authority failed to demonstrate substantial evidence to support use of a 2030 baseline. (Id. at 462.) The Goddard Appeal inappropriately cites Neighbors for the proposition that a lead agency proposing to use a “projected or outdated baseline” must demonstrate substantial evidence that using a current baseline would be “impractical, unhelpful, or misleading.” Neighbors, however, applies to preparation of an EIR for a project in the first instance, not to preparation of subsequent or supplemental analysis after an EIR for the project already has been certified, as is the case with the Yarbrough EIR. As noted in Section III above, in the case of supplemental or subsequent review, CEQA is clear that the lead agency is required to compare the impacts of the project to those identified in the certified EIR, and that a lead agency shall not require a supplemental or subsequent EIR unless there is substantial evidence of new or substantially more severe impacts or new feasible means of reducing previously identified impacts. Contrary to the suggestion in the Goddard Appeal, nothing in Neighbors requires or even permits a lead agency conducting subsequent environmental review to require reanalysis, using a current baseline, of a project previously considered in a certified EIR.

The Goddard Appeal attempts to turn this standard on its head, suggesting that the City must “update the analysis or show why the environmental impacts expected when the EIR was written still hold today” (emphasis omitted) and that an existing baseline would be misleading or not useful. That would be precisely the opposite of CEQA’s mandate that the City not require subsequent or supplemental analysis in the context of the previously certified Yarbrough EIR unless there is substantial evidence that the Project will have new or substantially more severe impacts than identified in the Yarbrough EIR or that there are new feasible means of reducing previously identified impacts. As noted herein, the Goddard Appeal does not identify such evidence. Neighbors does not require the City to reanalyze the Project using a current baseline, as if the City had never certified the Yarbrough EIR.

The decisions in Laurel Heights Improvement Association v. Regents of the University of California (1993) 6 Cal.4th 1112 (“Laurel Heights”) and Madera Oversight Coalition, Inc. v.

County of Madera (2011) 199 Cal.App.4th 48 (“Madera”) cited in the Goddard Appeal likewise do not require a subsequent or supplemental EIR for the Project. Like Neighbors, Madera 316
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addressed the adequacy of the county’s original EIR for a mixed-use project. Citing a decision subsequently overruled by Neighbors (Sunnyvale West Neighborhood Assn. v. City of Sunnyvale City Council (2010) 190 Cal.App.4th 1351), the Court held that the county did not have discretion to use a future baseline to assess traffic impacts. The Goddard Appeal claims that Madera “rules that outdated assumptions become invalid when conditions change” (emphasis omitted). In addition to relying on since overruled authority, however, Madera, like Neighbors, applies to preparation of an EIR for a project in the first instance, not to preparation of subsequent or supplemental analysis, and is thus inapplicable for the same reasons described above.

Laurel Heights likewise is inapplicable, but for a different reason. Laurel Heights addresses the question of whether CEQA requires circulation of a not yet certified draft EIR when new information is added in the final EIR. The Court held that recirculation is required only where substantial evidence demonstrates that significant new information is added that discloses new or substantially more severe impacts or new feasible means of reducing previously identified impacts, or that the draft EIR was so fundamentally inadequate that public comment effectively was meaningless. (Laurel Heights, 6 Cal.4th at 1130, 1135.) The Court concluded that substantial evidence supported the Regents’ decision not to recirculate the EIR. The Goddard Appeal asserts that Laurel Heights “held that new environmental risks require supplemental CEQA review” (emphasis omitted), when in fact Laurel Heights addresses recirculation, not supplemental review. In contrast to the EIR in Laurel Heights, the Yarbrough EIR already has been certified as complying with CEQA. The question therefore is not whether the Yarbrough EIR should be recirculated, but whether a subsequent or supplemental EIR is required. As explained below, the Goddard Appeal does not identify substantial evidence that would trigger subsequent or supplemental review of the Project under CEQA.

B. Changes In Law Do Not Trigger Supplemental Environmental Review Under CEQA
The Goddard Appeal identifies changes in regulatory requirements as the basis for arguing supplemental environmental CEQA review of the Project is required, based on Federal Emergency Management Agency (“FEMA”) regulatory changes pertaining to flooding and changes in the CEQA Guidelines pertaining to air quality, GHGs, energy, and traffic. These arguments lack merit. Since certification of the Yarbrough EIR, there have been several changes in the CEQA statute and CEQA Guidelines, including for example the shift from evaluating transportation impacts in the context of level of service (“LOS”) to the new methodology which looks at vehicle miles traveled (“VMT”), required analysis of GHG, changes in the Appendix G thresholds, and new air district air quality standards, among others. These changes in law do not trigger the need for supplemental environmental review under CEQA.

CEQA Guideline amendments apply prospectively only, and an EIR that meets the content requirements in effect when the document is set out for public review need not be revised to conform to new content requirements in subsequent guidelines. (CEQA Guidelines, § 15007(b), (c).) Additionally, several California state court decisions have made clear that new 317
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impact thresholds or approaches to analyzing long-known environmental issues do not constitute changed circumstances or new information requiring a subsequent EIR. (Citizens for Responsible Equitable Environmental Development. v City of San Diego (2011) 196 Cal.App.4th 515, 531-32 (“CREED”) [supplemental EIR not required “absent new information, and… information on the effect of greenhouse gas emissions on climate was known long before the City approved the 1994 FEIR.”]; Concerned Dublin Citizens v City of Dublin (2013) 214 Cal.App.4th 1301, 1320 [new 2010 air district GHG guidelines and thresholds adopted after EIR were not significant new information requiring further CEQA review].) As discussed below, underpinning many of Mr. Goddard’s CEQA claims is the false assumption that a change in regulations triggers the need for a supplemental EIR.

C. The Goddard Appeal Fails to Identify Substantial Evidence Supporting a Need for Supplemental CEQA Review of the Project.

1. Claims Regarding Increased Cumulative Traffic Impacts The Goddard Appeal appears to claim that supplemental environmental review is needed to assess all the developments affecting the Jefferson corridor traffic since 2008. In his recent Appellant’s Brief, as well as emails to City staff subsequent to the filing of the Goddard Appeal, Mr. Goddard claims the City must undertake supplemental traffic studies to evaluate the cumulative effect of the Project in combination with three other specific projects on traffic on Jefferson Boulevard: (1) the Kinect at Southport/Jefferson Village Apartments Project; (2) the River Park Project, and (3) the Liberty Specific Plan Project. Mr. Goddard’s claims pertaining to traffic relate to congestion, which is measured by LOS.1 As described below, the Yarbrough EIR’s cumulative impacts analysis specifically evaluated the potential traffic volumes of these projects (as well as others) in combination with the Project.

In Appellant’s Brief, Mr. Goddard cites to CREED (which we cite above) to support his arguments that supplemental CEQA review is required due to “outdated traffic data” and cites to Clover Valley Foundation v. City of Rocklin (2011) 197 Cal.App.4th 200 (“Clover Valley”) to support his claim that supplemental CEQA review is needed to analyze “increased traffic from new developments.” CREED, does not support Mr. Goddard’s claim as there the Court of Appeal rejected the petitioners’ claims that a supplemental EIR was required, and upheld the city’s certification of an addendum to the prior EIR for a residential development. Clover Valley, on the other hand, involved review of an EIR for a subdivision project and the question of whether recirculation was required, which is inapplicable here. Moreover, the Court in Clover Valley, rejected petitioner’s claims and upheld the City’s EIR. a. Yarbrough Project Design and Transportation Improvements From the outset, both the Project’s design and the study of its environmental impacts included consideration of transportation and traffic impacts. Indeed, the compact, mixed-use 1 See Section IV.C.1.c infra.
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character of the Project’s village core “is intended to offer certain traffic-reduction benefits over conventional development patterns” by locating “high- and medium-density residential units close to retail” and linking them “to the surrounding neighborhoods by a network of pedestrian and bicycle routes” with a “concentration of residences within walking distance of the bus route along Jefferson Boulevard.” (DEIR, pp. 2-4—2-5.) As described in the DEIR, “[i]ncreased density correlates to more transit trips by residents and visitors and a reduction in automobile trips when compared with conventional low-density residential development.” (Ibid.) Moreover, the reduction in traffic associated with the Project’s density was “not fully reflected in trip generation estimates” in the DEIR, meaning the traffic analysis likely overestimated traffic impacts. (See DEIR, pp. 2-4—2-5.)
With respect to transportation improvements, as described in the Yarbrough DEIR, the Yarbrough Project includes a comprehensive system of arterial and collector streets, including the following improvements to Jefferson Boulevard (which runs directly through the Project site from the south-west to the north-east):

Jefferson Boulevard would be expanded to four lanes from the northern edge of the project site to the intersection with Southport Parkway in the village core; it would transition to two lanes south of that point. Jefferson Boulevard would cross the proposed lake on a new bridge south of the village core. Jefferson Boulevard would be built as a parkway, with a landscaped median and sides. Southport Parkway has been constructed to the intersection with Jefferson Boulevard. As originally envisioned under the Southport Framework Plan, Southport Parkway and the future extension of Village Parkway were to meet at Jefferson Boulevard along the Bevan Road alignment. The Plan has since been amended to allow the current built alignment of Southport Parkway, which intersects Jefferson Boulevard south of the Bevan Road intersection. This would result in an offset between the Southport and Village Parkway’s intersections with Jefferson Boulevard. Three alternative alignments have been considered for the eastern portion of Southport Parkway to correct this offset. The project proposes the alignment illustrated in Figure 2-8 to meet the future extension of Village Parkway. This would move the extension of Village Parkway south of Bevan Road, rather than along a portion of the Bevan Road alignment. A system of collector and local streets will also be constructed as part of the project. (DEIR, p. 2-6, Figure 2-7; see also Planning Commission Staff Report dated Aug. 1, 2024, p. 5.)
Transportation and traffic impacts were a key consideration for the Yarbrough Project from the outset, both in the design of the Project itself, as well as the evaluation of the Project’s potential environmental impacts. Further, the proposed ARDA would accelerate some of the required improvements by requiring ASB to provide cross-sections of the full street improvements in the first tentative map (see Phase I VTM, Sheet 11), and to start the Jefferson Boulevard improvements upon initial construction of subdivision improvements in the first small lot final map in Phase I, with completion occurring prior to the 400th final residential unit inspection. 319
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(See August 1, 2025, Planning Commission Staff Report, Exh. J: Traffic Improvements and Funding Commitment.)
b. Cumulative Projects Evaluated in Yarbrough EIR
The CEQA Guidelines provide two alternative methods of examining cumulative effects, the “list” method and the “plan or projections method.” (Guidelines, § 15130.) The “list method” involves preparing a list of “past, present, and future projects producing related or cumulative impacts, including, if necessary, those projects outside the control of the agency.” (Guidelines, § 15130(b)(1)(A).) The “plan or projections method” refers to a “summary of projections contained in an adopted local, regional or statewide plan, or related planning document, that describes or evaluates conditions contributing to the cumulative effect.” (Guidelines, § 15130(b)(1)(B).) The Yarbrough DEIR’s cumulative effects analysis was “based on a combination of the plan/projections and list approaches, using the projections of the Southport Framework Plan regarding future development within the City’s Southport planning area and a list of proposed projects in the Southport area that would include development intensities beyond what was planned in the Southport Framework Plan.” (Yarbrough DEIR, p. 5-5.) The Yarbrough DEIR acknowledged that there were “a large number of projects proposed in the Southport area that, if approved, would result in an increase in population and commercial uses,” and as a result the Yarbrough DEIR also utilized the list method for the assessment of specific categories of impacts, including specifically traffic. (Yarbrough DEIR, p. 5-5.) The Yarbrough DEIR evaluated cumulative impacts associated with “reasonably foreseeable, relevant projects” that, when combined with the Project, could contribute to cumulative effects. (DEIR, p. 5-6.) The traffic volumes of each of the three projects identified by Mr. Goddard previously was evaluated in the Yarbrough DEIR’s cumulative effects analysis, although one was identified by a different name at the time, and another was part of the Southport Framework Plan at the time. The Yarbrough DEIR specifically evaluated cumulative impacts based on both the development projections in the SF Plan Area as well as four pending projects at the time: the River Park Project, the Harbor Pointe Project (renamed Liberty Specific Plan), the Parks Project, and University Park Project. Yarbrough (DEIR, p. 5-6—5-8; see also p. 2-1 and Figure 2-2.)
 River Park Project – The River Park Project was specifically evaluated in Yarbrough EIR as one of the cumulative projects requiring analysis and mentioned throughout the Yarbrough DEIR. (See e.g., Yarbrough DEIR, pp. 2-15, 3.9-2, 5-6—5-7.) As described in the Yarbrough DEIR, the River Park Project proposed the development of approximately 494.4 acres with 2,788 residential units, parks, open space, a small commercial site, an elementary school site, commercial centers, regional park and community open space areas. (Yarbrough DEIR, p. 5-7.) The River Park Project was approved in June 2008 for up to 2,284 units (500 fewer units than what was evaluated in the Yarbrough DEIR). Due to the condemnation of a considerable portion (120.9 acres) of the approved River Park Project area by the West Sacramento Area Flood Control Agency, the current property owner is in the process of proposing 320
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modifications to the River Park Project to allow 2,312 units, which remains substantially less (476 fewer units) than what was evaluated in the Yarbrough EIR’s cumulative effects analysis. (See City Planning Commission Staff Report, dated May 2, 2024, Item 5.)
 Liberty Specific Plan Project - The current “Liberty Specific Plan” (as identified in the Goddard Appeal) involves the same property that previously was referred to as the “Harbor Pointe Project,” which was proposed by KB Homes but never approved.

Both projects relate to the same property owned by the Paik family, which is bounded on the east by the Sacramento River levee system, on the south by Davis Road, and on the north by Linden Road. The Harbor Pointe Project evaluated in the Yarbrough DEIR proposed 1,724 units, a 5-acre neighborhood commercial site, two school sites, and approximately 63 acres of parks, open space, and a detention basin, on 477.7 acres. (Yarbrough DEIR, pp. 5-7—5-8.) The application for the Harbor Pointe Project was suspended while the Yarbrough Project was pending. Nonetheless, the Yarbrough DEIR included the Harbor Pointe Project in the cumulative effects analysis because the City acknowledged that “development of the properties” that made up that site was “still considered to be reasonably foreseeable given its relative consistency with the Southport Framework Plan in terms of land use and density.” (Yarbrough DEIR, p. 5-8.) Contrast this with the currently proposed Liberty Specific Plan on the same site, which if approved, would develop approximately 340 acres into a new community in Southport with 1,503 residential units, 10,000 square feet of retail commercial, plus parks, greenbelts, and trails.2 Thus, the Yarbrough DEIR previously evaluated the cumulative effects of a more intense development on the same site as compared to what the Liberty Specific Plan proposes.  The Parks at Southport – The “Parks at Southport” project evaluated in the cumulative impacts discussion of the Yarbrough DEIR consisted of an application to amend the City’s General Plan and zoning designation for approximately 279 acres of land within the Southport Business Park. (See e.g., Yarbrough DEIR, pp. 2-15, 5-6, 5-8.) The application called for the rezoning of lands from heavy industrial, light industrial, and business park to low-density residential, medium-density residential, high-density residential, public/quasi-public, and recreation and parks. The Parks at Southport proposed in excess of 2,050 single-family and multi-family residential units. This project was ultimately abandoned and the property was instead built out as light industrial/warehouse/business park.
 University Park Project – The University Park Project was another project that was specifically evaluated in Yarbrough EIR as one of the cumulative projects requiring analysis and mentioned throughout the Yarbrough DEIR. (See e.g., Yarbrough DEIR, pp. 2-1, 3.9-2, 5-6, 5-8.) The University Park Project involved an application 2 https://www.cityofwestsacramento.org/government/departments/community-development/planningdivision/major-planning-projects/liberty-specific-plan 321
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to annex 587 acres to the City and to establish General Plan and pre-zoning designations for low-, medium-, and high-density residential and open space land uses. The project proposed approximately 2,500 active adult housing units as well as an educational park of 25 to 40 acres, which would include a demonstration school, educational center, and a residential complex for interns and students studying in the Sacramento area. The project site is south of the City limits, between the Deep Water Ship Channel on the west, the City’s southern incorporated limits, and the Sacramento River on the east. The University Park Project did not move forward.  Kinect at Southport/Jefferson Village Apartments Project – The Kinect project (also referred to as Jefferson Village Apartments) identified in the Goddard Appeal is a 322-multifamily residential project located at 2301-2425 Jefferson Blvd originally proposed by American Capital Group in December of 2018, and modified in 2020.3 The site is located along the east side of Jefferson Boulevard, south of Gateway Drive and north of Lake Washington Boulevard. The City reviewed the application for conformance with the zoning requirements in effect at that time, which permitted multifamily by right on this property. The City determined the Kinect project was consistent with the use classifications and development intensity assumed in the Southport Framework Plan.4 Based on information provided on the City’s website, this project is currently under construction. For decades the site of the Kinect project has been designated for mixed use (which includes denser residential development) in the Southport Plan, with an allowed residential density of up to 25 dwelling units per acre, and the Kinect project is consistent with the Southport Plan.5 The Yarbrough EIR’s assessment of cumulative-level impacts was based on buildout projections provided in the Southport Plan, as described repeatedly throughout the document. (See e.g., Yarbrough DEIR, pp. 5-1—5-9, 5-15—19, 5-33, 5-34, 5-38.) As such, the Yarbrough EIR included the land use type and intensity that is part of the current Kinect project. As a result, the approval of the Kinect project’s 322 units does not result in any new or substantially more severe significant environmental impacts than what was previously evaluated in the Yarbrough EIR, thus there is no trigger for supplemental environmental review of the Project under CEQA. c. Yarbrough EIR Cumulative Effects Analysis of Traffic Impacts As explained in Section IV.B. above, changes in law from LOS to VMT do not trigger the need for supplemental environmental review as an EIR that meets the content requirements in effect when the document is set out for public review need not be revised to conform to new content requirements in subsequent guidelines. (CEQA Guidelines, § 15007(b), (c); Concerned Dublin Citizens, 214 Cal.App.4th at 1320 [new 2010 air district GHG guidelines and thresholds adopted after EIR were not significant new information requiring further CEQA review].) Here, 3 https://www.cityofwestsacramento.org/government/departments/community-development/planningdivision/major-planning-projects 4 https://www.cityofwestsacramento.org/home/showpublisheddocument/6834/636541243675970000 5 See Southport Framework Plan, as amended through August 5, 1998, pp. 6, 35.) 322
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the Yarbrough DEIR evaluated whether the Project, either individually or cumulatively in combination with other projects, would result in an exceedance of an LOS standard established by the City and/or Caltrans for designated roads or highways. (Yarbrough DEIR, p. 3.13-24.) The City’s LOS standard at the time of the DEIR provided that the “City shall endeavor to maintain Level of Service “C” on all streets within the City, except at intersections and on roadway segments within one-quarter mile of a freeway interchange or bridge crossing of the Deep Water Ship Channel, barge canal, or Sacramento River, where a Level of Service “D” shall be deemed acceptable.” (Yarbrough DEIR, p. 3.13-24.) The Yarbrough DEIR utilized thresholds of significance based the City’s 2005 Traffic Impact Analysis Guidelines for City streets, and utilized thresholds for I-5 based on Caltrans’ goal standard of LOS E. (Yarbrough DEIR, p. 3.13-25.) A total of four study intersections along Jefferson Boulevard are within a quarter-mile of a freeway and therefore were subject to the LOS D standard. (Yarbrough DEIR, p. 3.13-24.)
The Yarbrough DEIR’s transportation impacts analysis identified Project-specific impacts to various intersections and segments of Jefferson Boulevard under Impacts TRF-5 through TRF-13. (DEIR, p. 3.13-28–33.) Of these, the Yarbrough DEIR disclosed that the impacts would be significant and unavoidable as to Impacts TRF-5 through TRF-7 and TRF-13 and less than significant with mitigation incorporated for Impacts TRF-8 through TRF-12. (Yarbrough DEIR, p. 3.13-28–33.) The Yarbrough DEIR also evaluated impacts on Jefferson Boulevard based on a scenario of “Existing Plus Approved Projects Plus Project Conditions” as discussed under Impacts TRF-16 through TRF-26. (Yarbrough DEIR, pp. 3.13-36 - 40.) Of these, the Yarbrough DEIR disclosed that impacts would be significant and unavoidable as to Impacts TRF-16, -17, -19, -21, and -26 and less than significant with mitigation incorporated as to Impacts TRF-18, -20, and -22 through -25. (Yarbrough DEIR, Table ES-1.) The Yarbrough DEIR also provided an extensive discussion of traffic and transportation impacts in the cumulative effects section and additionally included analysis of a “Super Cumulative Condition” scenario, which looked at the combined impacts of four other projects within the Southport Area in addition to the Yarbrough Project. (Yarbrough DEIR, pp. 5-33–5-

37.) The Yarbrough DEIR identified Impacts CE-13 through CE-26 as cumulative traffic impacts. (Yarbrough DEIR, pp. 5-25–5-33.) For Impacts CE-13 through CE-18, the Project’s impacts in combination with those of cumulative projects were determined to be less than cumulatively considerable with mitigation incorporated. For Impacts CE-19 through CE-26, the Project’s impacts in combination with those of cumulative projects were determined to be cumulatively considerable and unavoidable. (Yarbrough DEIR, pp. 5-25 – 5-33.) For purposes of the Super Cumulative Condition traffic analysis, the Combined Projects were defined in terms of changes from the City’s then current General Plan and, because all of the Combined Projects were in Southport, the then-current General Plan was the Southport Plan.

In total, the change in dwelling units represented by the Combined Projects was an increase of 8,997 and the change in employment was a decrease of 3,701. Within Southport, the Combined Projects would have resulted in 24,929 dwelling units (compared to 15,932 for the Southport Plan), and 12,075 jobs (compared to 15,776 for the Southport Plan). The Yarbrough DEIR’s 323
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analysis of the Super Cumulative Condition was supported by a 2006 Fehr & Peers Transportation Study. (DEIR, pp. 5-34—5-37.)
Contrary to the claims in the Goddard Appeal, the Yarbrough EIR fully evaluated the Project’s transportation and traffic impacts in combination with cumulative projects in the vicinity of the Project in a manner that conservatively over-estimated impacts given several of the cumulative projects studied were never constructed. The Goddard Appeal does not identify any new or substantially more severe significant environmental impacts associated with any cumulative projects approved since the certification of the Yarbrough EIR, nor any newly feasible mitigation measures or alternatives that would substantially reduce significant environmental effects of the Project.
d. Phase I VTM and ARDA Project Revisions
None of the modifications incorporated into the Phase I VTM and the ARDA would result in any increase in the number of Project-related trips that were evaluated in the 2008 Yarbrough EIR. The Yarbrough Project remains obligated to widen Jefferson Boulevard from Marshall Road to the Project site, and the proposed amendments included in the ARDA strengthen these obligations by providing more detail on the timing and funding obligation for the improvements, including expanding widening and improvements north to Linden Road. The Original DA required the improvements prior to the development of the 1,501st residential unit in the SF Plan Area beyond those identified as existing plus approved scenario. The proposed ARDA would accelerate these improvements by requiring ASB to provide cross-sections of the full street improvements in the current Phase I VTM6 and to start construction of the Jefferson Boulevard improvements upon initial construction of subdivision improvements in the first Small Lot Final Map in Phase I, with completion occurring prior to the 400th final residential unit inspection. (See August 1, 2025, Planning Commission Staff Report, Exh. J: Traffic Improvements and Funding Commitment.) These improvements include street widening, sidewalks, bike lanes, and landscaping. Other changes to the ARDA relate to fee credits and do not implicate CEQA impacts.

The Goddard Appeal does not identify any new or substantially more severe significant environmental impacts associated with the Phase I VTM and ARDA, nor does it identify any new or substantially different, feasible mitigation measures or alternatives that would substantially reduce significant environmental impacts as to any category of asserted claims. As a result, there is no trigger for supplemental environmental review of the Project under CEQA.

2. Claims Regarding Impacts Associated with the City’s Evacuation Plan The Goddard Appeal and subsequent correspondence from Mr. Goddard appear to claim that supplemental environmental review is needed to assess impacts to the City’s Evacuation and 6 These cross-sections are provided in the current Phase I VTM at Sheet 11, Circulation Map. Improvement plans for the full build-out of Jefferson Boulevard must be submitted and approved concurrently with approval of the first final map for Phase I.
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Emergency Management Plan. Mr. Goddard, however, has not identified any specific change in the Project, change in circumstances, or new information of substantial importance that he believes results in a new Project impact or a substantial increase in any previously identified significant impacts.

The Yarbrough EIR specifically evaluated whether the Project would impair implementation of or physically interfere with an adopted emergency response plan or emergency evacuation plan under Impact HAZ-8, and, as described in the prior section the Yarbrough EIR’s analysis of cumulative impacts, included an evaluation of several major projects that were pending at the time, several of which never moved forward. (Yarbrough DEIR, 3.7-16—3.7-17.) Impact HAZ-8 evaluates the extent to which emergency access to and in the vicinity of the Project site could potentially be affected by lane closures, detours, and construction-related traffic. (Yarbrough DEIR, p. 3.7-16.) The Yarbrough DEIR concluded that, with implementation of Mitigation Measure HAZ-8, impacts would be less than significant.

Mitigation Measure HAZ-8 requires ASB to develop and implement a Construction Traffic Control Plan during the final stage of Project design.

The Yarbrough EIR identify an update to the City’s evacuation plans as a necessary mitigation measure. Nonetheless, the ARDA requires the Project to fund its proportional share of an update to the City’s Evacuation and Emergency Management Plan when the City conducts its update. (ARDA, § 16.5.) The Project also is required to participate in the formation of a Citywide “Public Safety” CFD. (ARDA, pp. 27-28.) In his email correspondence following the filing of the Goddard Appeal, with reference to his allegations concerning evacuation plans, Mr. Goddard complains that there is “[n]o bridge to I-5” and that residents are “going to have to go way North across the someday Enterprise bridge but that won’t happen for 10 years and 300 million dollars.”7 ASB is aware of two separate bridges that have been discussed publicly. The first is a bridge from Southport, crossing the Sacramento River to the east, and connecting to an intersection that is within the City of Sacramento at the Sutterville exit off southbound I-5. ASB understands that bridge has been deemed infeasible for many years. Separately, ASB understands the City is currently initiating studies and designs for the proposed Enterprise Bridge, which if built would provide access from Southport, bridging the Deep Water Ship Channel, and connecting to US-50/I-80 to the north.

The Yarbrough EIR did not assume that either of these bridges would be constructed, nor otherwise condition the Project on the future construction of these bridges. Likewise, the City’s evacuation plans do not assume that these bridges will be built, since an evacuation plan must be based on then-existing infrastructure and roadways. As a result, these complaints do not trigger supplemental review under CEQA with respect to whether the Project would impair implementation of or physically interfere with an adopted emergency evacuation plan.

The Goddard Appeal does not identify any new or substantially more severe significant environmental impacts in the context of emergency evacuation plans that would be potentially 7 Email from K.Goddard to A.Laurel et al. dated Sep. 10, 2024, 3:34 p.m. 325
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associated with the City’s approval of the Phase I VTM and ARDA, nor does it identify any new or substantially different, feasible mitigation measures or alternatives that would substantially reduce significant environmental impacts with respect to adopted emergency evacuation plans.

As a result, there is no trigger for supplemental environmental review of the Project under CEQA.

3. School Impacts
The Goddard Appeal generally claims there will be new impacts on schools caused by the Yarbrough Project, without articulating what these impacts are attributable to. In Mr. Goddard’s subsequent email correspondence to the City, he alleges, without citation to any evidence, that the “high school is maxing out at 1000 plus students, the K-8s in Southport are maxing out.”8 As provided below, the Yarbrough EIR accounted for impacts to schools and identified mitigation for those impacts, and the Project provides additional benefits to the City above and beyond the legal requirement to provide support for local schools.

The Project is required to pay school impact fees to address the costs of new school facilities needed due to additional middle and high school students at local schools. The payment of these fees provides full mitigation of the Project’s impacts on school facilites. (See Gov. Code § 65996(b) [“The provisions of this chapter are hereby deemed to provide full and complete school facilities mitigation and, notwithstanding . . . [CEQA] or any other provision of state or local law, a state or local agency may not deny or refuse to approve a legislative or adjudicative act, or both, involving, but not limited to, the planning, use, or development of real property . . . on the basis that school facilities are inadequate.”].) “Because the methods set forth in Government Code section 65996, subdivision (a) are exclusive, that provision obviates the need for an EIR to contain a description and analysis of a development's impacts on school facilities.” (Chawanakee Unified Sch. Dist. v. County of Madera (2011) 196 Cal. App. 4th 1016, 1027 (“Chawanakee”).) In his Appellant’s Brief, Mr. Goddard ignores this portion of the decision, and instead argues that “Chawanakee holds that CEQA requires mitigation planning for population-driven increases in school capacity” and that the “2008 EIR document in Yarbrough fails to take into account any modern, relevant, current conditions and has no studies, reports, or data relative to the present circumstances of the Washing Unified School District.” However, those portions of the Chawanakee decision relate to challenges to the analysis in the project’s initial EIR and did not concern an analysis of whether supplemental environmental review was required. This distinction is key. Any claims by Mr. Goddard regarding the adequacy of the analysis of school related impacts in the original Yarbrough EIR are time-barred. The only relevant question now is whether any of the triggers for supplemental environmental review under Section 21166 are present.

In addition, above and beyond its statutory obligations, the Project includes the dedication of land for an elementary school site consistent with both the Southport Framework Plan and the Washington Unified School District (“WUSD”) master plan. (DEIR, p. 3.14-21.) 8 K.Goddard email to A.Laurel et al. dated Sep. 10, 2024, 3:34 p.m. 326
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The Project includes acreage for a future elementary school as part of the village core, north of Southport Parkway and west of Jefferson Boulevard. (DEIR, p. 2-5.) “This school is located on an approximately 10-acre site; 3.5 acres of the campus are located within the project boundary.

North of the project boundary and the campus, 1.5 acres are proposed for a joint park facility for school use.” (Yarbrough DEIR, p. 2-5.)
Section 16.2 (School Agreement) of the Original DA, which is unmodified in the ARDA, requires that, prior to the approval of the first small lot final map for the Project, ASB must provide the City with evidence of a fully executed agreement with the WUSD, to the satisfaction of the School District, for the phasing and development of school facilities to serve the Project.

The Yarbrough EIR evaluated impacts on schools based on the number of proposed dwelling units and WUSD student yield rates and concluded that the Project’s dedication of a school site in combination with the payment of school impact fees ensures that impacts to these public facilities are less than significant. (Yarbrough DEIR, p. 3.14-20.) Moreover, school districts in Yolo County (with the exception of Winters Unified) all have experienced declining enrollment since 2019.9 In addition, other projects in the area, specifically the River Park project and Liberty Specific Plan, include the required designation of school sites within their project sites, as described in Section C.1. above.

In Appellant’s Brief, Mr. Goddard appears to claim that neither ASB nor the City has consulted with WUSD about the Project. This claim is incorrect. ASB has met with representatives of WUSD several times since approval of the Yarbrough Project, including most recently on June 15, 2022, and February 29, 2024.

The Goddard Appeal does not identify any new or substantially more severe significant environmental impacts in the context of school facility impacts that would be potentially associated with the City’s approval of the Phase I VTM and ARDA, nor does it identify any new or substantially different, feasible mitigation measures or alternatives that would substantially reduce significant environmental impacts with respect to school facilities. As a result, there is no trigger for supplemental environmental review of the Project under CEQA.

4. Police Services
The Goddard Appeal generally claims there will be new impacts on police services caused by the Yarbrough Project, without articulating what these impacts are attributable to. In Mr. Goddard’s email correspondence, he claims that the ARDA “eliminate[s] police needs entirely in this agreement” and lets “the developer off the hook” with the City “receiv[ing] nothing in return.” Mr. Goddard also demands that the City “[p]ut the police station, equipment and whatever impact fee the developer needs to pay back into the development agreement.” As described below, because the Yarbrough EIR determined that there will not be any impacts to police protection services, the provisions of the Original DA and ARDA pertaining to the police 9 https://www.capradio.org/articles/2022/05/03/growing-suburban-sacramento-school-districts-spared-statesdeclining-enrollment/#:~:text=Placer%20County%20enrollment%20increased%2036.5,the%2020%- 20years%20before%20that.
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annex are not related to a CEQA impact, and these provisions were not required as a mitigation measure.

With respect to police services, the Yarbrough EIR determined that Project impacts to police protection services (which, in accordance with CEQA, are evaluated in terms of the need for new facilities, not service ratios) would be less than significant and no mitigation is required. (Yarbrough DEIR, pp. 3.14-19—20.) The Project was, and still is, required to pay development impact fees to the City to cover necessary public service facility improvements. The Original DA required the dedication of land within the Project site for a police annex, but this requirement was not a CEQA mitigation measure. The ARDA removes this requirement and instead requires ASB to participate in the formation of a city-wide “Public Safety” financing mechanism that will fund fire and police personnel, equipment, and maintenance costs. The City administration, the Police Department, and the Fire Department collectively proposed this change based on an assessment of current needs. ASB agreed in the ARDA to participate in the City-wide “Public Safety” financing mechanism prior to the approval of the first small lot final map for the Project.

The City Fire Fee typically is required to be paid as each new building permit is approved in a development; this revision in the ARDA provides the City with these fees sooner than otherwise required. The ARDA also provides that ASB may petition the City to initiate formation of a CFD for the purposes of financing these public safety costs. (ARDA, § 19.2(2).) Whether using a CFD or other financing mechanism, the ARDA requires the funding mechanism to be formed by the date of approval of the first small lot final map. (ARDA, § 19.2(3).) ASB still will dedicate land within the Yarbrough Project site for a new fire station, as required in the Original DA. The ARDA requires ASB to fund the design for the new fire station upon the approval of the first small lot final map in the Project. (ARDA, Exh. H.) The Goddard Appeal does not identify any new or substantially more severe significant environmental impacts in the context of impacts to police services that would be potentially associated with the City’s approval of the Phase I VTM and ARDA, nor does it identify any new or substantially different, feasible mitigation measures or alternatives that would substantially reduce significant environmental impacts with respect to police services. As a result, there is no trigger for supplemental environmental review of the Project under CEQA.

5. Claims Pertaining to Impacts to Water Supply and Quality The Goddard Appeal asks general questions regarding the Project’s water usage and water quality issues, such as where the water is coming from, appearing to claim the Project’s lakes, canal, and golf course will have impacts on water supply. The Goddard Appeal does not identify any Project change or change in circumstances that would cause the Yarbrough EIR’s assessment of impacts to either water quality or water supply to require supplemental review.

The golf course and canals have been a part of the Project and were evaluated in the Yarbrough EIR. The proposed Phase I VTM and ARDA do not increase the number of residential units or other uses beyond what was previously assumed in the Yarbrough EIR. The only water supply or water quality related revisions currently at issue are (1) revisions to the Phase I VTM to show 328
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retention10 of the Main Drain that currently flows through the Project site south and west and eventually terminates in the Deep Water Ship Channel (“DWSC”); (2) revisions to the ARDA to reflect that the Drainage Master Plan and Water Master Plan were approved; and (3) revisions to the ARDA to reflect that the Main Drain no longer will be removed. As described below, none of these modifications trigger supplemental review of the Project under CEQA. As described herein, none of these changes result in any new or more significant environmental impacts beyond those that were previously studied in the Yarbrough EIR.

Chapter 3.8, Hydrology and Water Quality, of the Yarbrough DEIR comprehensively addressed the Yarbrough Project’s impacts on water supply and water quality. A Water Supply Assessment was prepared for the Project and was included in Appendix B to the Yarbrough EIR. “The WSA assessed the adequacy of existing and planned future water supplies to the City of West Sacramento, and the City’s ability to meet the water supply demands of the proposed Yarbrough project. Information from the WSA was used to analyze the environmental impacts on water supply resulting from the proposed project. As stated in the Hydrology and Water Quality Chapter of the EIR, impacts to water supply would be less than significant.” (Yarbrough FEIR, 3-59.) As relevant to the Goddard Appeal, the EIR specifically evaluated whether the Project had the potential to violate any water quality standards or otherwise substantially degrade water quality, substantially deplete groundwater supplies or interfere substantially with groundwater recharge, result in insufficient water supplies, or substantially degrade the existing surface and groundwater quality due to erosion and siltation. (DEIR, p. 3.8-12.) Impacts were determined to be less than significant with mitigation incorporated with respect to Impact HYD-1 (impacts to surface water quality due to construction related earth disturbance), Impact HYD-3 (water quality impacts associated with operation of a golf course), Impact HYD-4 (increased amounts of surface runoff and associated impacts to drainage facilities); and Impact HYD-5 (water quality effects of urban runoff). The Yarbrough DEIR found that the Project’s impacts would be less than significant as to Impact HYD-2 (water quality impacts from construction below the water table); Impact HYD-6 (substantially deplete groundwater supplies or interfere with groundwater recharge); Impact HYD-7 (sufficiency of water supply); Impact HYD-8 (impacts to groundwater and surface water from infrastructure failure); Impact HYD-9 (water quality impacts from discharges to surface water where water bodies are 303(d) listed); Impact HYD-11 (flood hazards associated with dam failure), and Impact HYD-12 (impacts of climate change/global warming on flood protection). The only significant and unavoidable impact identified in the Yarbrough EIR was with respect to flooding and the levee system at the time, with the impacts associated to the need for funding for specified levee improvements. (Impact HYD-10).

The network of lakes that are part of the Project design are a feature that provide added flood control and stormwater drainage (reducing the need for expensive drainage infrastructure), in addition to providing recreational functions. (Yarbrough DEIR, pp. ES-3, 2-3, 2-6.) The lakes are designed to provide enough floodwater storage to replace the capacity currently provided by 10 Under the Project Approvals, this canal would have been eliminated. 329
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the agricultural land on the Project site and accommodate additional runoff produced not just by proposed development, but also from other future developing areas of Southport. (Yarbrough DEIR, p. 2-6.)
The approved Project included removal/filling of the existing Main Drain, which the Yarbrough EIR identified as a potential water of the United States. (EIR, pp. ES-8, 2-6, 3.4-18; FEIR, p 2-2.) As depicted in the Phase I VTM, the Main Drain now is proposed to remain and be connected to the Project’s proposed lake system. Minor reconfigurations of the lake system are incorporated into the Phase I VTM to accommodate retention of the Main Drain. As a result, previously identified impacts associated with removal of the Main Drain (e.g., loss of ruderal habitat, impacts to giant garter snake aquatic habitat (BIO-5), reduction in floodwater storage) no longer will occur, resulting in a reduction of significant impacts previously identified and mitigated in the Yarbrough EIR. (Yarbrough EIR, pp. 2-6, 3.4-36.) 11 The Project still is required to develop and maintain a Master Drainage Plan consistent with Mitigation Measure HYD-4, and as reflected in the ARDA, that plan has been prepared and approved.

Finally, the City’s recently approved Housing Element discussed water supplies with respect to future development in West Sacramento, explaining that the City’s drinking water is supplied by the Sacramento River, that the main treatment plant’s “capacity is sufficient to meet the demand for water in West Sacramento for the foreseeable future, including anticipated needs for future development of Southport and the specific plan areas discussed above. Most of the major subdivisions in Southport are served by the City water system.” (Housing Element, A.3-

17.)
The Goddard Appeal does not identify any new or substantially more severe significant environmental impacts in the context of either water supply or water quality that would be potentially associated with the City’s approval of the Phase I VTM and ARDA, nor does it identify any new or substantially different, feasible mitigation measures or alternatives that would substantially reduce significant environmental impacts with respect to water supply or water quality. As a result, Mr. Goddard’s generalized claims with respect to water supply and water quality impacts do not identify any trigger for supplemental environmental review of the Project under CEQA.

6. Golf Course Feasibility
The Goddard Appeal claims that “no 18 hole golf course will ever occur in West Sacramento,” complains that the “city has no contingency plan if a golf course does not arise and no feasibility study to even consider whether a golf course is a good idea,” and speculates that if a golf course is not provided, the City will be left “with unmitigated open space which usually turns to houses eventually.” These claims lack any factual basis and are wholly speculative. As provided in CEQA Guidelines section 15126.6, “[a]n EIR need not consider an alternative whose 11 ASB’s written response to comments in advance of the Planning Commission hearing also addresses the changes with respect to the Main Drain. (See Letter from Cox Castle to J.Mitchell dated July 29, 2024.) 330
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effect cannot be reasonably ascertained and whose implementation is remote and speculative.” (Residents Ad Hoc Stadium Committee v. Board of Trustees (1979) 89 Cal. App.3d 274).

Similarly, CEQA Guidelines section 15145 provides, “[i]f, after thorough investigation, a lead agency finds that a particular impact is too speculative for evaluation, the agency should note its conclusion and terminate discussion of the impact.” (County of Butte v. Dep't of Water Res. (2023) 90 Cal.App.5th 147, 161, review denied.) At the time of the certification of the Yarbrough EIR, and presently, there is no substantial evidence that indicates that the areas of the Yarbrough Project that are identified for use as a golf course will instead be converted into some other use, residential or otherwise. Moreover, the Goddard Appeal’s claims with respect to golf course feasibility are too speculative to warrant further evaluation. (Id. at p. 161-162, citing Marin Mun. Water Dist. v. KG Land California Corp. (1991) 235 Cal.App.3d 1652, 1662 [when the nature of future changes are “nonspecific and uncertain, an EIR need not engage in ‘sheer speculation’ as to future environmental consequences”].) As with other claims, the Goddard Appeal does not identify any new or substantially more severe significant environmental impacts related to the proposed golf course that are associated with the City’s approval of the Phase I VTM and ARDA, nor does it identify any new or substantially different, feasible mitigation measures or alternatives that would substantially reduce significant environmental impacts with respect to any of the Project significant impacts.

As a result, there is no trigger for supplemental environmental review of the Project under CEQA.

7. Claims Regarding Flooding Risk
For the first time in his Appellant’s Brief, Mr. Goddard claims that the “Yarbrough EIR did not anticipate significant regulatory legislative changes, including SB 5, SB 586, and FEMA’s 200-year flood rule, which now affect the project’s viability.” He claims that the “Yarbrough buildout is unlikely to be completed before 2045” and thus will not fit under the “adequate progress exception” under Senate Bill 586, which allows limited development until 2036. Mr. Goddard also claims that “retention of the Main Drain complicates flood management further, adding new risks not accounted for in the original EIR.” As explained below, these claims do not trigger a need for supplemental review under CEQA. a. Claims regarding changes in state and federal levee standards.

Mr. Goddard refers to the federal changes in engineering standards for levees that occurred in 2006 after Hurricane Katrina’s impacts to the levees and floodwalls in New Orleans.12 The State of California requires that urban levees have the capability to protect against at least a 200-year flood event. FEMA’s updates to the federal engineering standards for levees meant that jurisdictions like West Sacramento needed to undertake public improvements to restore their levee systems to the 200-year level of protection. Senate Bill 5 was enacted in 12 https://www.cityofwestsacramento.org/home/showpublisheddocument/11152/637272055319870000 331
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200613 over a year prior to the certification of the Yarbrough EIR. This change in law occurred prior to the Yarbrough EIR’s certification and therefore cannot be used as a basis for requiring supplemental review under CEQA, as described in Section III. Senate Bill 586, enacted earlier this year and effective immediately, extends the specified exception for the City to achieve the urban level of flood protection from 2030 to 2040 and requires additional reporting obligations regarding progress toward plans and actions taken to improve flood protection through January 1, 2039.14 This bill reflects a change in regulatory standards occurring after certification of the Yarbrough EIR, which does not trigger supplemental review under CEQA as described in Section IV.B. above.

The West Sacramento Area Flood Control Agency (“WSAFCA”), a joint powers authority consisting of the City, Reclamation District 537, and Reclamation District 900, has been working aggressively to address the challenges of the stricter flood control standards imposed in 2006, which must be met by 2030. WSAFCA has moved quickly to design and construct projects that meet the 200-year flood protection requirement. A list of the completed projects and current projects can be found on the City’s website.15 Moreover, the Yarbrough Draft EIR and Final EIR specifically discussed the flooding risks in the SF Plan Area. Section 3.8, Hydrology and Water Quality, of the Yarbrough Draft EIR specifically acknowledged that “[c]hanges in information on expected flood stages and new criteria for the design and construction of levees have led to a reevaluation of the protection level provided by the West Sacramento levee system in the near future.” (DEIR, p. 3.8-24.) The Yarbrough Draft EIR also explained that “failure of either” of the nearby levee systems in the Southport area “during major floods could cause catastrophic flooding of the project area” and that the “potential of failure of the Sacramento River levee is of most concern” as it “was built in the 1920s over pre-existing levees that were generally not engineered, the bank of the river is not completely armored against erosion, and annual floodflows result in high stage and velocity in the Sacramento River (relative to the Deep Water Ship Channel).” (DEIR, p. 3.6-2.) The Yarbrough Final EIR revised Section 3.8 and responded to several comments pertaining to flooding, as excerpted below.
 The Levee Evaluation Study prepared by the City identified weaknesses in the existing system of levees that protect the City from flooding. New analyses of the potential for underseepage revealed that the levees may not provide the level of flood protection that had been previously assumed. In order to address the need for improvements to the levees, [WSAFCA] has established a flood control assessment (ratified by voters in July 2007) that will raise approximately 42 million dollars. The City Council adopted a development impact fee ordinance (Ordinance 07-11) in May 2007 that is expected to draw an additional 42 million dollars in revenue for levee improvements. The proceeds of the assessment and impact fee will be used as the 13 http://www.leginfo.ca.gov/pub/07-08/bill/sen/sb_0001-0050/sb_5_bill_20071010_chaptered.html 14 https://leginfo.legislature.ca.gov/faces/billTextClient.xhtml?bill_id=202320240SB586 15 https://www.cityofwestsacramento.org/government/departments/city-manager-s-office/flood-protection/leveeprojects-overview 332
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local share of the estimated 400 million dollars needed for levee work. The remainder of the money will be provided by State and federal programs. (Yarbrough FEIR, p. 2-12.)
 The Yarbrough project is outside FEMA’s 100-year floodplain as shown on the current Flood Insurance Rate Map (dated January 19, 1995). This map is attached to response 1-1 above. The discussion of flooding in the Environmental Setting on page

3.8-4 of the Draft EIR has been revised in the Final EIR to clarify that more recent studies analyzing the potential for underseepage have indicated that the existing levees within the City may not provide the level of flood protection that was previously believed. In response to these findings, the City has completed a survey of the levees and enacted a flood control assessment. In addition, the City adopted Ordinance 07-11 in May 2007, which requires that new development projects provide adequate flood protection either through the construction of improvements or the payment of a flood control in-lieu fee. The City expects that flood control assessments and in-lieu fees will raise $84 million to help finance necessary levee improvements. The remainder of the estimated $400 million cost of bringing the levees to the level of 200-year flood protection would be borne by identified state and federal funding. The assessment was ratified by West Sacramento voters in July 2007. [¶] Mitigation Measures HYD-10a, HYD-10b, HYD-10c, and HYD-10d are linked to these financing plans to reduce flooding impacts. The Draft EIR identifies this impact as significant and unavoidable because at the time it was released for review, the results of the flood control assessment ratification election were not known. (Yarbrough FEIR, p. 3-8; see also Yarbrough FEIR, p 3-7.) The Yarbrough EIR identified several mitigation measures specific to flooding risks, including Mitigation Measures HYD-4 (requirement to develop and implement a Master Drainage Plan), HYD-10a (coordinate with WSAFCA and Reclamation District 900 regarding levee condition and maintenance needs), HYD-10b (participate in levee evaluation study including payment of in-lieu-flood-protection fee); HYD-10c (implement measures for flood protection), and HYD10d (implement measures for disclosure and insurance in all sales documents and provide 3 years of pre-paid flood insurance for buyers of developed land). (Yarbrough FEIR, Table ES-1, Table 5-1.) Even with these mitigation measures, the Yarbrough EIR concluded that impacts associated with the continued operation and maintenance of levees associated with development of the Project “will remain significant and unavoidable until the levee improvements, maintenance, and repair have been funded.” (Yarbrough DEIR, p. 3.8-24 (emphasis added); see also Yarbrough FEIR, Table ES-1, Table 5-1.)
Finally, Mr. Goddard cites to San Joaquin Raptor Rescue Center v. County of Merced (2007) 149 Cal.App.4th 645 for the principle that “emerging flood risks require supplemental CEQA review, even where an EIR has already been certified.” It is not clear why Mr. Goddard cites to this decision, as it does not address flooding risks and pertains to a challenge to certification of an EIR, not the standards for supplemental review. 333
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The Goddard Appeal does not identify any new or substantially more severe significant environmental impacts in the context of flooding risks that would be potentially associated with the City’s approval of the Phase I VTM and ARDA, nor does it identify any new or substantially different, feasible mitigation measures or alternatives that would substantially reduce significant environmental impacts with respect to flooding risks. As a result, there is no trigger for supplemental environmental review of the Project under CEQA. b. Claims Regarding Retention of Main Drain
Mr. Goddard makes a new, unsupported claim that “retention of the Main Drain complicates flood management further, adding new risks not accounted for in the EIR.” This allegation disregards information describing the function of the Main Drain as provided in the Yarbrough EIR (described below), which demonstrates that retention of the Main Drain will provide an increase in overall floodwater storage capacity, not a reduction.

The Main Drain is an existing condition. The Project originally proposed to remove the Main Drain, which currently serves as the primary irrigation/drainage conveyance facility. (Yarbrough DEIR, pp. 2-2, 3.2-2.) As depicted in the Phase I VTM, the Main Drain now is proposed to remain and be connected to the Project’s proposed lake system. Because removal of the Main Drain would result in a loss of drainage capacity, the Project included replacement of “its flood control and storm drainage functions with a string of lakes and waterways (the chain of lakes),” which would be “designed to provide enough floodwater storage to replace the capacity currently provided by the agricultural land on the project site and accommodate additional runoff produced by proposed development. Another function of the lake and waterway system will be to attenuate the increases in peak flow volumes resulting from the current system, which directs storm drainage to channels. Because the lake/waterway system would provide an additional increment of stormwater detention capacity beyond that needed to serve the project alone, it would allow a reduction in the capacity of the planned Main Drain Pump Station rehabilitation and pump upgrade.” (Yarbrough DEIR, pp. 3.14-28, see also 3.8-18.) As a result, retention of the Main Drain in combination with the chain of lakes means that the Project as a whole will have greater drainage capacity than previously studied.

In addition, as provided in Mitigation Measure HYD-4, the Project is required to develop and implement a Drainage Master Plan, which must include (among other things) design measures to ensure structures are not located within 100-year floodplain areas, and “ensure that 100-year flooding and its potential impacts are maintained at or below current levels and that people and structures are not exposed to additional flood risk.” (Yarbrough DEIR, p. 3.8-19.) As provided above, ASB already prepared the Drainage Master Plan, which the City approved.

The Goddard Appeal does not identify any new or substantially more severe significant environmental impacts in the context of flooding risks associated with retention of the Main Drain, nor does it identify any new or substantially different, feasible mitigation measures or alternatives that would substantially reduce significant environmental impacts with respect to 334
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flooding risks associated with retention of the Main Drain. As a result, there is no trigger for supplemental environmental review of the Project under CEQA.

8. New Claims Regarding Contamination and Biological Impacts Associated with Retention of the Main Drain
In his Appellant’s Brief, Mr. Goddard newly claims that the “retention of the Main Drain introduces new risks of stormwater contamination, which were not addressed in the EIR.” He also argues that “the project threatens the habitats of the giant garter snake and Swainson’s hawk, both of which are protected species” and alleges “[u]pdated mitigation plans are required” under the Yolo Habitat Conservation Plan/Natural Community Conservation Plan (“Yolo HCP/NCCP”). As noted above, the approved Project included removal/filling of the existing Main Drain, which the Yarbrough EIR identified as a potential water of the United States. (Yarbrough EIR, pp. 2-6, 3.4-18; FEIR, p 2-2.) As depicted in the Phase I VTM, the Main Drain now is proposed to remain and be connected to the Project’s proposed lake system. Very minor reconfigurations of the lake system are incorporated into the Phase I VTM to accommodate retention of the Main Drain.

With respect to the alleged “risks of stormwater contamination” associated with retention of the Main Drain, Mr. Goddard fails to identify how the retention of the Main Drain (an existing condition) will result in any new or increased stormwater contamination. He does not identify any alleged source of new or increased contamination from the Project. Instead, Mr. Goddard cites to the decision of Communities for a Better Environment v. City of Richmond (2010) 184 Cal.App.4th 70, arguing supplemental review is required “when new public health risks arose.” The Yarbrough EIR discussed water quality impacts and mitigation measures pertaining to discharges into jurisdictional waters in Chapter 3.8, Hydrology and Water Quality and Mitigation Measures HYD-1 through HYD-5 address any potential construction or operational related water quality impacts associated with the Project. Since certification of the Yarbrough EIR, the Central Valley Regional Water Quality Control Board issued an order certifying the U.S. Army Corps of Engineers’ (“Army Corps”) Individual Permit under Section 401 and approving Waste Discharge Requirements for the Project. Because Mr. Goddard has not identified any factual basis for an increased risk in stormwater contamination, there is no trigger for requiring supplemental review.

With respect to the giant garter snake, the Yarbrough EIR previously identified and evaluated impacts to giant garter snake aquatic habitat (Impact BIO-5), which impacts were associated with removal of the Main Drain. (EIR, pp. 2-6, 3.4-36.) The retention of the Main Drain will result in a reduction of impacts to biological resources that were previously identified and mitigated in the Yarbrough EIR. In February 2022, the City issued a letter finding that the Project is consistent with the Yolo HCP/NCCP and that the amount and type of take proposed with implementation of Phase 1A of the Project is authorized through the Yolo HCP/NCCP.

Since certification of the Yarbrough EIR, ASB already has made additional progress in obtaining resource agency approvals for the Project, as outlined below. 335
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 Madrone Ecological Consulting LLC (“Madrone”) prepared an updated Aquatic Resources Delineation Report in July 2020 and an update in September 2022.  In a letter dated June 26, 2023, the U.S. Fish & Wildlife Service (“Service”) confirmed that the Army Corps had satisfied its obligation to consult with the Service pursuant to Section 7 of the federal Endangered Species Act and through this consultation extended to the Army Corps incidental take exemptions for the two federally threatened species subject to Section 7 review for the Project (the giant garter snake and the valley elderberry longhorn beetle).  The Army Corps provided an approved jurisdictional determination for the Project site on April 19, 2024, concurring with Madrone’s Aquatic Resources Delineation Report.
 The California Department of Fish and Wildlife approved a Streambed Alteration Agreement for the Project.

Finally, while there may have been amendments to applicable Habitat Conservation Plans, Natural Community Conservation Plans, or other approved local, regional, or state habitat conservation plans, as well as the CEQA Guidelines, these changes in the law do not constitute significant new information triggering supplemental review under CEQA. (Fort Mojave Indian Tribe v. California Department of Health Services (1995) 38 Cal. App. 4th 1574, 1605-06.) The Goddard Appeal does not identify any new or substantially more severe significant environmental impacts in the context of either biological resources or water quality that would be potentially associated with retention of the Main Drain, nor does it identify any new or substantially different, feasible mitigation measures or alternatives that would substantially reduce significant environmental impacts with respect to these impact categories. As a result, there is no trigger for supplemental environmental review of the Project under CEQA.

9. New Claims Regarding Energy Demand, Infrastructure Capacity, and Public Utilities
In his Appellant’s Brief, Mr. Goddard claims for the first time that the Yarbrough Project, in combination with the Liberty and River [Park]16 projects “will strain public utilities and increase energy demand,” but fails to correlate these claims with any changes in the Project, changes in circumstances, or significant new information triggering supplemental review under CEQA.
a. Energy Impacts and CEQA Guidelines Section 15126.2(b) Mr. Goddard cites to CEQA Guidelines section 15126.2(b) and claims the Yarbrough EIR failed to evaluate whether the Project “causes wasteful energy consumption” or whether the 16 The correct project name is River Park, although Mr. Goddard refers to this as “River Point” in his Appellant’s Brief.
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“infrastructure can meet cumulative demand.” Guidelines section 15126.2(b) was added to the CEQA Guidelines in 2018, after the Yarbrough EIR was certified, and was intended “to capture the requirements in Appendix F” of the Guidelines pertaining to energy conservation. It provides that “[i]f analysis of the project’s energy use reveals that the project may result in significant environmental effects due to wasteful, inefficient, or unnecessary consumption use of energy, or wasteful use of energy resources, the EIR shall mitigate that energy use” and indicates that “Guidance on information that may be included in such an analysis is presented in Appendix F.” Appendix F, which was in effect at the time of the Yarbrough EIR, provides an outline of energy conservation impacts and measures that are intended to assist in the preparation of an EIR. As explained in Section IV.B. above, changes in the CEQA Guidelines do not trigger supplemental environmental review under CEQA, therefore the new standards in Section 15126.2(b) do not necessitate the preparation of a supplemental EIR.

The Yarbrough EIR did discuss the Project’s energy consumption and potential contribution to global warming impacts, including a discussion of Appendix F’s energy conservation impacts and measures. (Yarbrough DEIR, p. 3.3-15.) The Yarbrough EIR also referenced several Project features that would facilitate the reduction of energy consumption and discussed the Project’s energy related impacts. (See e.g., Yarbrough DEIR, p. 3.3-23 [use of LED modules to reduce energy consumption]; p. 3.3-40 [provisions of City Landscape Development Guidelines contain design guidelines to reduce energy consumption]; p. 3.14-9, -18 [Title 24 Energy Efficiency Standards]; pp. 3.14-22—23 [Project’s energy related impacts].) In addition, the Project is required to comply with current Title 24 Building Energy Efficiency Standards (which are updated every three years), which standards are much more stringent in reducing energy consumption than the Title 24 standards in effect in 2008, thereby further reducing the Project’s impacts below what was assumed in the Yarbrough EIR.

The Goddard Appeal does not identify any new or substantially more severe significant environmental impacts in the context of the Project’s energy consumption or impacts that would be potentially associated with the City’s approval of the Phase I VTM and ARDA, nor does it identify any new or substantially different, feasible mitigation measures or alternatives that would substantially reduce significant environmental impacts with respect to energy consumption or impacts. As a result, there is no trigger for supplemental environmental review of the Project under CEQA.
b. Wastewater Treatment Capacity
Mr. Goddard also claims that “the related hydrological disposition matter of wastewater treatment planning has not been studied in the EIR, relative to the new wastewater treatment plant” and alleges “it is unknown how close to full capacity West Sacramento’s wastewater treatment system has come or how much more it can handle” with respect to the cumulative condition of the Yarbrough Project in combination with the Liberty and River Park projects. 337
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As discussed in Section IV.C.1.b. above, the Yarbrough EIR specifically evaluated the Liberty Specific Plan (previously identified as “Harbor Pointe Project”), and the River Park project in the cumulative effects analysis. (See e.g., DEIR, pp. 2-15, 3.9-2, 5-6—5-8.) In addition, both the Liberty Specific Plan and the River Park project currently propose less intense development with fewer units than what was evaluated in the Yarbrough EIR’s cumulative effects analysis. As a result, cumulative impacts associated with the development of these projects, whether related to wastewater or other impacts, is not new information triggering supplemental review under CEQA.

In addition, Mr. Goddard is incorrect regarding the wastewater treatment plant (“WWTP”) that will be used by the Project. As described in the Final EIR, the City entered into an interagency agreement for wastewater services with the Sacramento Regional County Sanitation District (“SRCSD”). (Yarbrough FEIR, p. 2-24.) At the time the Yarbrough EIR was certified, construction of the Lower Northwest Interceptor (“LNWI”) was complete and the City was connected as of November 2007. The LNWI is a 19-mile sewer pipeline that brings wastewater from West Sacramento to the Sacramento Regional Wastewater Treatment Plant (“SRWTP”) in Elk Grove. (FEIR, p. 2-24.) Thus, the Project’s wastewater is treated by the SRWTP, not a City facility. Mr. Goddard has failed to identify any factual basis for requiring supplemental CEQA review pertaining to the Project’s wastewater.

The Goddard Appeal does not identify any new or substantially more severe significant environmental impacts in the context of the Project’s wastewater impacts or available wastewater capacity that would be potentially associated with the City’s approval of the Phase I VTM and ARDA, nor does it identify any new or substantially different, feasible mitigation measures or alternatives that would substantially reduce significant environmental impacts with respect to the Project’s wastewater. As a result, there is no trigger for supplemental environmental review of the Project under CEQA.

10. New Claims Regarding Air Quality and GHGs
In his Appellant’s Brief, Mr. Goddard claims that the “combined developments” will increase air pollution and GHG emissions and argues that CEQA Guidelines section 15064.3 “require[s] VMT-based assessments to calculate emissions, but the 2008 EIR relied on outdated LOS metrics.” He also claims that Senate Bill 32 (enacted in 2016) and Assembly Bill 32 (enacted in 2006), necessitate an updated analysis. As explained in Section IV.B. above, changes in the CEQA Guidelines and regulatory standards do not trigger supplemental environmental review under CEQA. Mr. Goddard has repeatedly ignored this legal principle.

Guidelines section 15064.3, which requires an EIR’s evaluation of transportation impacts to be based on vehicle miles traveled, was adopted after the Yarbrough EIR was certified. By its own terms, Section 15064.3 “appl[ies] prospectively as described in [Guidelines] section 15007” and a “[b]eginning on July 1, 2020, the provisions of this section shall apply statewide.” (Guidelines, § 15064.3(c).) Similarly, SB 32 was enacted after certification of the Yarbrough EIR.

Conversely, AB 32 was enacted in 2006 and was specifically discussed in the Yarbrough EIR. (Yarbrough DEIR, pp. 3.3-13—14, -40.)
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Moreover, the Yarbrough EIR evaluated impacts associated with Project with regard to GHG and climate change, including impacts associated with Project VMT. As explained in Chapter 3.3 of the Yarbrough DEIR, the Yarbrough Project “has several components that will promote the use of alternative modes of transportation that reduce [VMT], produce less GHG emissions than vehicular travel, or avoid such emissions,” including: (1) an overall design and land use plan that “encourages walking and biking and shortens auto trips for routine shopping,” (2) a “compact core that encourages public transit use by increasing the intensive of commercial and residential development in the core,” (3) an improvement in “the regional balance of housing and jobs” encouraging “fewer long-distance commutes, thus reducing VMT,” and (4) being “located in an area that has been designated in [the Sacramento Area Council of Governments’] preferred growth alternative” which was “specifically modeled to reduce the increase in VMTs.” (Yarbrough DEIR, pp. 3.3-39—40.)
The Goddard Appeal does not identify any new or substantially more severe significant environmental impacts in the context of air quality or GHGs that would be potentially associated with the City’s approval of the Phase I VTM and ARDA, nor does it identify any new or substantially different, feasible mitigation measures or alternatives that would substantially reduce significant environmental impacts with respect to the Project’s air quality or GHG impacts. As a result, there is no trigger for supplemental environmental review of the Project under CEQA.

V. RESPONSE TO GODDARD APPEAL NON-CEQA CLAIMS
The Goddard Appeal contains general criticisms of the City Planning Commission’s approval of the Phase I VTM and recommendation of approval of the ARDA that are unrelated to CEQA. For example, the Goddard Appeal criticizes the Project’s provision of affordable housing and demands the City hold a public workshop on the Yarbrough Project and provide additional expanded notice. Neither of these claims identify any legal inadequacies in either the Planning Commission’s decisions, nor in the proposed Phase I VTM and ARDA.

A. Required Findings for Phase I VTM and ARDA
The City’s review of the Phase I VTM must be based on the explicit requirements of the City’s Subdivision Ordinance and Subdivision Map Act (“SMA”). Under the City’s Subdivision Ordinance, in order to approve the Phase I VTM the City must make three findings: (1) the tentative map is consistent with the goals and policies of the general plan and any applicable specific plans; (2) the tentative map is in conformance with Title 16 of the City’s Municipal Code pertaining to subdivisions and the City’s zoning ordinance; and (3) the tentative map is in conformance with the SMA. (West Sac. Mun. Code, §§ 16.20.040; 16.24.050.) Under the SMA, the City must “consider the effect of ordinances and actions adopted pursuant to [the SMA] on the housing needs of the region in which the local jurisdiction is situated and balance these needs against the public service needs of its residents and available fiscal and environmental resources.” The SMA requires the City to disapprove the VTM if it makes one of the required 339
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findings under Government Code section 66474(a)-(g), including that the proposed map or the design or improvement of the subdivision is not consistent with applicable general and specific plans, that the site is not physically suitable for the type of development or for the proposed density of development, that the design of the subdivision or the proposed improvements are likely to cause substantial environmental damage or substantially and avoidably injure fish or wildlife or their habitat, or are likely to cause serious public health problems, or the design of the subdivision improvements or the type of improvements will conflict with public easements.

The standard of review for a challenge to the approval of a vesting tentative map is the abuse of discretion standard, which is established only where the local agency has not proceeded in the manner required by law, the order or decision is not supported by the findings, or the findings are not supported by the evidence. (See Youngblood v. Board of Supervisors (1978) 22 Cal.3d 644, 651, fn. 2; Code Civ. Proc. § 1094.5.)
Approval of a development agreement is a legislative act, and the City Council has the discretion to determine what legislation is necessary and appropriate. (Santa Margarita Area Residents Together v. San Luis Obispo Cnty. (2000) 84 Cal.App.4th 221, 227–28; Gov. Code, § 65867.5.) “A reviewing court will not set aside a legislative act unless it is arbitrary, capricious, or unlawful.” (Id.) Development agreements are subject to the requirements of Title 17.43 of the City’s Municipal Code, and the requirements of the Development Agreement statute, Government Code section 65864 et seq. The Planning Commission’s recommendation of approval of the ARDA to the City Council is a statutory-required step in the City’s consideration of the ARDA, but, as stated above, it is not an action that is subject to administrative appeal.

Nevertheless, the Goddard Appeal does not identify any legal deficiencies in the ARDA.

Notably, the scope of the City’s discretion in its consideration of the Project also is constrained by the Housing Accountability Act (“HAA”), which limits the City’s review of Phase I of the Project to compliance with “applicable, objective general plan, zoning, and subdivision standards and criteria” and restricts the City’s ability to “disapprove the project or to impose a condition that the project be developed at a lower density,” unless the City can make the requisite findings that Phase I of the Project would have a “specific, adverse impact upon the public health or safety” and there “is no feasible method to satisfactorily mitigate or avoid” such impact. (Gov. Code, § 65589.5(j)(1).) The Project is consistent with applicable, objective standards of the City General Plan, the Southport Plan, and the City zoning and subdivision ordinances. There is no evidence that the Project would have a specific, adverse impact on public health or safety that cannot be mitigated or avoided.

B. Affordable Housing
The Goddard Appeal objects to the Project’s inclusion of affordable housing units, stating Mr. Goddard’s desire for fewer (or no) affordable units. These objections do not identify any legal deficiency with respect to CEQA, the City’s required findings on the Phase I VTM, or the City’s approval of the ARDA. Instead, these objections represent Mr. Goddard’s personal opinions.
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The Project approvals require the Project to provide affordable housing in accordance with the City’s Municipal Code. Consistent with the requirements of Chapter 15.40 of the City’s Municipal Code, the Project must provide 10 percent of the units (304 units) as affordable units to low-income households, as required under the Original DA. (West Sac. Mun. Code, §

15.40.060(A)(2).) The only change in the ARDA with respect to the affordable units relates to timing of their construction by Project phase, but the total number of affordable units does not change. Under the ARDA, the Project would be required to include 120 affordable units in Phase I (double the Phase I obligation under the City’s ordinance). (ARDA, Exhibit F, Affordable Housing Agreement, § 2.) In addition, ASB is required to construct an additional 84 units in Phase I in compliance with its obligations for the Bridgeway Lakes II project, resulting in a total of 204 affordable rental units in Phase I. (Id. at § 3.) The Project will be allowed up to a total of 1200 single family market rate building permits before its second phase affordable housing obligation is triggered. (ARDA, Exhibit F, Affordable Housing Agreement, § 2(a).) Like many jurisdictions, the City has struggled to produce housing in sufficient numbers to meet its RHNA obligation, both in the current cycle and prior cycles. During the 5th RHNA Cycle, the City issued permits for less than half of its RHNA allocation (2,712 of 5,977 units). 17 The Yarbrough Project will provide critical housing needed to meet the City’s current 6th Cycle RHNA, which requires the City to show capacity for 9,471 units, including 39 percent (3,665 units) for lower-income households and 43 percent (4,084) for above moderate-income households. (City 2021-2029 Housing Element (“Housing Element”), p. A.2-1.) As reported in its most recent Annual Progress Report, the City is 37.5 percent through the time of the current housing element cycle, but the City has issued permits for only 38 low-income units (2.8%) of its low-income RHNA allocation, and 1,010 permits for above-moderate (24.7% of its abovemoderate RHNA allocation).18 The 304 low-income units required to be constructed as part of the Yarbrough Project would raise the City to 24.5 percent of its low-income RHNA, and the Project’s 2,703 market rate units would raise the City to 90 percent of its above-moderate RHNA.19
Due to the frequency of bad faith challenges to projects that include affordable housing (which challenges can cause delays and increased costs or worse, cause a project to lose timesensitive tax credits), the California Legislature has enacted new provisions allowing the defendant developer in any civil action (including CEQA actions) challenging a project that provides qualifying affordable housing20 to seek a court order requiring the plaintiff to post a 17 https://www.hcd.ca.gov/planning-and-community-development/housing-open-data-tools/housing-elementimplementation-and-apr-dashboard 18 See footnote 17.
19 https://www.hcd.ca.gov/planning-and-community-development/housing-open-data-tools/housing-elementimplementation-and-apr-dashboard 20 To qualify, the project must meet or exceed the requirements for low- or moderate-income housing as set forth in the State Density Bonus Law. (Code Civ. Proc. § 529.2 [amended by SB 393 (2024)]; see Gov. Code § 65915(b)(1)(A).) The Yarbrough Project is required to provide 10 percent of the total units as affordable to lowincome households, and these units must be constructed within the Project site and concurrently with the market rate units in each phase as described above. This obligation meets or exceeds the requirements of the State Density Bonus Law, which applies where 10 percent of total housing units are made available to low-income households. 341
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bond as security for costs and any damages incurred by the defendant/real party in interest as the result of a delay in carrying out the development project. This bond can be imposed where the defendant can demonstrate that: (1) the action was brought in bad faith, vexatiously, for the purpose of delay, or to thwart the low- or moderate-income nature of the housing development project, and (2) the plaintiff will not suffer undue economic hardship by filing the undertaking. (Save Livermore Downtown v. City of Livermore (2022) 87 Cal.App.5th 1116, 1135–36, review denied [Court of Appeal upheld award of bond to real party in interest affordable housing developer based on evidence showing petition was filed for purpose of delay].) As explained below, if Mr. Goddard were to pursue CEQA litigation against the City and ASB, ASB as the developer could request that the court require Mr. Goddard as the plaintiff to post such a bond.

The evidence of Mr. Goddard’s bad faith is shown in his recent emails in support of the Goddard Appeal, as well as his quotes to the newspaper. Mr. Goddard has urged the City to “stop with all the ‘affordable housing’ and the incompatibility of its placement” and questioned “[w]here are all the people coming from that will fill such housing? What MIGRATION MAGNET are you creating?”21 In his quotes to the Sacramento Business Journal, Mr. Goddard states “he’s particular[ly] concerned about plans to put more high-density affordable housing in earlier phases.” 22 He also opines that “West Sacramento, like most California cities, is under the gun from state housing regulators to approve more low-income housing,” and “Goddard argued that’s entirely because of an increase in state population from immigration, legal and illegal” and that the “low-income housing in Yarbrough would draw those populations to West Sacramento.”23
ASB respectfully requests that the City Council reject these baseless and offensive claims and uphold the Planning Commission’s approval of the Phase I VTM and approve the ARDA.

C. Demand for a Public Workshop and Supplemental Mailings The Goddard Appeal demands that the City hold a “public workshop” regarding the Project to give people (including any that moved to West Sacramento since approval of the Yarbrough Project) “a last chance to put in their two cents and if nothing else, to understand exactly what’s going to happen before they find out the hard way when a construction truck breaks their windshield with a rock.” Mr. Goddard has also requested additional direct mailings above and beyond the required legal notices, posting on Facebook, putting a notice in the newspaper, and posting the matter on the City’s website. The Goddard Appeal does not claim that any of the City’s notices or public processes with respect to the Project are legally deficient; instead, Mr. Goddard asks for additional meetings and notices above and beyond what legally is required.
21 Email from K. Goddard to A. Laurel et al., dated Sep. 10, 2024, 3:34 p.m. (emphasis in original). 22 Sacramento Business Journal, “Appeal filed against Yarbrough master plan in West Sacramento,” B. van der Meer, September 30, 2024.
23 See footnote 22.
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The City has maintained a webpage for the Project for quite some time, which includes links to copies of the Original DA, Yarbrough EIR, Yarbrough Master Design Guidelines, Phase I VTM, Draft Open Space Guidelines, Public Financing and Phasing Plan, as well as ASB’s letter to the Planning Commission dated July 29, 2024. The Planning Commission held a public hearing on the Project on August 15, 2024, which was continued from the prior August 1, 2024, meeting, to consider whether to approve the Phase I VTM and consider whether to recommend the ARDA. During that public hearing the public had an opportunity to comment on the Project, and the public also had the opportunity to submit written comments in advance of the public hearing. Because the ARDA must be approved by the City Council, even without the Goddard Appeal, the City Council is required to hold a public hearing on the approval of the ARDA.

Based on the filing of the Goddard Appeal, the City Council will now also hold a public hearing to consider whether to grant or deny the Goddard Appeal.

ASB also understands that the City has agreed to provide expanded noticing and other postings regarding the City Council’s consideration of the ARDA as well as its consideration of the Goddard Appeal, which will take place at noticed public hearings on November 6, 2024.

ASB understands that the City has agreed to the following: (1) mailed notice to property owners within 500 feet of the Yarbrough Project boundary with additional supplemental information on the Project as well as a web page address for the City's Yarbrough Project webpage; (2) two newspaper notice publications in the News Ledger, one on October 11, 2024, and a second on October 25, 2024, with a Project information and the web address for the City’s Yarbrough Project webpage; (3) notices posted on the City’s social media platforms with a hyperlink to the City's Yarbrough Project webpage; and (4) posting the Goddard Appeal to the City’s Yarbrough Project webpage. During this period of delay, Mr. Goddard has also taken the opportunity to conduct personal outreach to news outlets regarding the Yarbrough Project.

In sum, Mr. Goddard has gotten what he has asked for—delays to the Yarbrough Project approval, an additional public hearing, and expanded noticing beyond what is legally required.

VI. CONCLUSION
For the reasons described above, none of the triggers for supplemental environmental review under CEQA are present, and the Project remains consistent with the Project as evaluated in the Yarbrough EIR. The Goddard Appeal likewise does not identify any legal basis for disapproval of the Phase I VTM based on either the City’s subdivision standards or the Subdivision Map Act. While the City Planning Commission’s recommendation of approval of the ARDA is not subject to administrative appeal, the Goddard Appeal also does not identify any legal basis for the City Council to disapprove the ARDA based on either the City’s Development Agreement standards or state law pertaining to development agreements.

Moreover, the scope of the City’s discretion is constrained by the HAA, which limits the City’s review of the Phase I VTM to compliance with applicable objective standards and criteria and restricts the City’s ability to disapprove the Project unless the City can make the requisite public health and safety findings. There is no evidence to support these findings. 343
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For these reasons, ASB respectfully requests that the City Council deny the Goddard Appeal, affirm the Planning Commission’s approval of the Phase I VTM and CEQA determination, and approve the ARDA.

Please do not hesitate to contact us should you have any questions regarding this matter.

Sincerely,
Cox, Castle & Nicholson LLP
Margo N. Bradish Arielle O. Harris
cc: Aaron Laurel, City Manager
Jeffrey Mitchell, City Attorney
Andrea Ouse, Community Development Director
Daniel Berumen, Senior Planner
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1331 Garden Hwy, 2nd Floor | Sacramento, CA 95833 T. (916) 321-4500 | F. (916) 321-4555 www.kmtg.com

MEMORANDUM
TO: Mayor Guerrero & Members of the City Council
Aaron Laurel, City Manager
FROM: Jeffrey A. Mitchell, City Attorney
DATE: November 1, 2024
RE: Yarbrough Project – Goddard Appeal
This memo provides a response to the issues raised by the administrative appeal filed by Kimber Goddard ("Mr. Goddard") on August 23, 2024 (“Goddard Appeal”), challenging the City of West Sacramento (“City”) Planning Commission’s August 15, 2024, adoption of Resolution 24-2PC approving ASB’s application for a Phase I Vesting Tentative Map (“VTSM”) for the Yarbrough Master Plan Project (“Project”) and Resolution 24-3PC recommending the City Council adopt Ordinance 24-11 approving the Amended and Restated Development Agreement (“ARDA”) for the Project.1 The City Council originally
approved a Development Agreement for the Project in 2008, and the Phase I VTSM and ARDA implement the previously approved Project. As part of the original approval, the City prepared and the City Council certified the Yarbrough Master Plan Environmental Impact Report (“Yarbrough EIR”) pursuant to the California Environmental Quality Act (“CEQA”).

The Goddard Appeal, as well as subsequent email correspondence from Mr. Goddard and the “Appellant Brief” he provided on October 23, 2024 (which are collectively referred to here as the Goddard Appeal), contain general assertions pertaining to potential CEQA impacts of the Project, Mr. Goddard's criticism of the Project’s provision of affordable housing, his opinion that the Project’s proposed golf course is not feasible, his request for a public workshop and direct mailings to City residents beyond the required legal public notice, and other general criticisms of the City Planning Commission and City staff.

This memo primarily addresses those aspects of the Goddard Appeal that relate to CEQA compliance, including claims contained in subsequent email correspondence from Mr. Goddard to the extent those claims bear on the CEQA issues raised in the Goddard Appeal. 2 1 Under California law and the City’s Subdivision Ordinance (Title 16 of the West Sacramento Municipal Code), the Planning Commission is the approving authority for the VTSM. The City Council is the approving authority for the ARDA, which is on the Council’s November 6, 2024 agenda for first reading. The Planning Commission’s role in the Development Agreement process is limited to making a recommendation to the City Council. Technically, then, Resolution 24-3PC is not “appealable” as it only recommends approval. However Mr.

Goddard’s appeal generally raises issues related to CEQA compliance for the Yarbrough Project as a whole. For simplicity and completeness, this memo and the materials prepared by City staff address all of the issues raised in the Goddard Appeal.
2 In preparing this memo, we also reviewed the October 28, 2024, "Response to Administrative Appeal of Kimber Goddard" from the applicant's attorneys, Cox Castle & Nicholson (the "Applicant's Response"). 345
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The Goddard Appeal claims that the City should undertake supplemental environmental review concerning the following categories of environmental impacts: (1) cumulative impacts associated with traffic congestion on Jefferson Boulevard; (2) flood risk and the City’s evacuation planning; (3) water supply and water quality impacts; (4) biological resource impacts; (5) school impacts; (6) impacts to police services; and (7) impacts that might arise if the proposed golf course is infeasible and is developed with other uses. The Goddard Appeal also generally claims that, because the Yarbrough EIR is “old,” supplemental review is triggered.3
Finally, in Mr. Goddard’s “Appellant Brief”, he asserts for the first time that additional environmental review is required to address Vehicles Miles Traveled (VMT) and Greenhouse Gas Emissions.

In the opinion of the City Attorney, none of these claims have merit. As explained in this memo, once an environmental impact report (“EIR”) has been certified for a project, CEQA requires that a party asserting the need for additional environmental review must identify new or substantially more severe significant environmental impacts, or new or substantially different, feasible mitigation measures or alternatives that would substantially reduce significant environmental impacts. Because the Goddard Appeal fails to meet this standard, there is no basis to override the presumption that the previously certified Yarbrough EIR is sufficient and that supplemental environmental review of the Project under CEQA is not required.4
A. Legal Standard for Supplemental Review Under CEQA
For purposes of the City’s consideration of the proposed Phase I VTSM and ARDA, the City must evaluate whether the environmental impacts associated with these approvals are consistent with the impacts previously disclosed and evaluated in the Yarbrough EIR. Contrary to the claims in the Goddard Appeal, CEQA does not automatically require supplemental review due to the passage of time. Instead, Public Resources Code (“PRC”) section 21166 (“Section 21166”) and CEQA Guidelines section 15162 (“Section 15162”) provide that, when an EIR has been prepared for a project, no subsequent or supplemental EIR shall be prepared unless the City determines one or more of the following events has occurred:
(1) Substantial changes are proposed in the project which will require major revisions of the previous EIR . . . due to the involvement of new significant environmental effects or a substantial increase in the severity of previously identified significant effects;
3 It should be noted that Mr. Goddard raised the "cumulative impact" and water supply issues when the EIR for the Yarbrough Project was being considered in 2007. Those comments were addressed at that time and the EIR was certified by the City Council. At that time Mr. Goddard was primarily concerned with having the EIR cover a proposal by Mr. Goddard and his neighbors to subdivide their properties (see Alternative 5 to the DEIR.) 4 We have reviewed the papers submitted by both Mr. Goddard and the Applicant and the cases cited by each party. The cases cited by Mr. Goddard do not stand for the proposition they are cited for. They relate, instead, to the standards applicable to the preparation of a new Environmental Impact Report, not the standards for deciding whether an existing, certified EIR must be supplemented. The Applicant's discussion of the case law, by contrast, is generally an accurate reflection of the law. See, especially, the discussion of the cases cited by Mr. Goddard at pp. 9-11 of the Applicant's Response.
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(2) Substantial changes occur with respect to the circumstances under which the project is undertaken which will require major revisions of the previous EIR . . . due to the involvement of new significant environmental effects or a substantial increase in the severity of previously identified significant effects; or (3) New information of substantial importance, which was not known and could not have been known with the exercise of reasonable diligence at the time the previous EIR was certified as complete [], shows any of the following:
(A) The project will have one or more significant effects not discussed in the previous EIR or negative declaration;
(B) Significant effects previously examined will be substantially more severe than shown in the previous EIR;
(C) Mitigation measures or alternatives previously found not to be feasible would in fact be feasible, and would substantially reduce one or more significant effects of the project, but the project proponents decline to adopt the mitigation measure or alternative; or
(D) Mitigation measures or alternatives which are considerably different from those analyzed in the previous EIR would substantially reduce one or more significant effects on the environment, but the project proponents decline to adopt the mitigation measure or alternative. (CEQA Guidelines, § 15162; see also Pub. Res. Code (“PRC”), § 21166.) “[S]ection 21166 comes into play precisely because in-depth review has already occurred, the time for challenging the sufficiency of the original EIR has long since expired [], and the question is whether circumstances have changed enough to justify repeating a substantial portion of the process.” (Bowman v. City of Petaluma (1986) 185 Cal.App.3d 1065, 1073-74.) “The low threshold for requiring the preparation of an EIR in the first instance is no longer applicable; instead, agencies are prohibited from requiring further environmental review unless the stated conditions are met.” (Friends of Davis v.

City of Davis (2000) 83 Cal.App.4th 1004, 1017–18.) As correctly noted in the Applicant's Response, after an initial EIR is certified "CEQA establishes a presumption against additional environmental review." (San Diego Navy Broadway Complex Coalition v. City of San Diego (2010) 185 Cal.App.4th 924, 928.) Mr. Goddard's attempts to distinguish these cases are unpersuasive and confuse the standard for preparing an initial EIR with the standard that applies when a lead agency decides whether supplemental review is required. The Applicant's Response, at pp. 7-8, explains in detail why these cases do, in fact, support the position that no additional environmental review is required absent a showing that the threshold set out in Section 15162 has been met.
“A party challenging an agency's decision under section 21166 has the burden to demonstrate that the agency's decision is not supported by substantial evidence and is therefore improper.” (Committee for Re-Evaluation of T-Line Loop v. San Francisco Municipal Transportation Agency (2016) 6 Cal.App.5th 1237, 1247.) For purposes of CEQA, “substantial evidence includes fact, a reasonable assumption predicated upon fact, or expert opinion supported by fact” and does not include “argument, 347
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speculation, unsubstantiated opinion or narrative, evidence that is clearly inaccurate or erroneous, or evidence of social or economic impacts that do not contribute to, or are not caused by, physical impacts on the environment.” (Pub. Res. Code, § 20180(e).)
B. Analysis of Goddard Appeal CEQA Claims

1. Traffic Impacts
a. Cumulative Project Analysis in Yarbrough DA
The Goddard Appeal claims that supplemental environmental review is needed because of development affecting the Jefferson corridor traffic that has occurred since 2008, as well as proposed development projects. Specifically, Mr. Goddard claims that the City must undertake supplemental traffic studies to evaluate the cumulative traffic impacts of the Project in combination with three other projects:
(1) the Kinect at Southport/Jefferson Village Apartments Project; (2) the River Park Project, and (3) the Liberty Specific Plan Project. Mr. Goddard’s claims pertaining to traffic relate to congestion or to what is referred to as level of service (“LOS”). As described below, the Yarbrough EIR’s cumulative impacts analysis specifically evaluated the potential traffic volumes of these projects (as well as others) in combination with the Project.

The staff report provide background on the Yarbrough project and the traffic analysis conducted for the Yarbrough EIR, as well as a discussion of the traffic improvement enhancements contained in the ARDA.5
The portion of the Yarbrough EIR that is most relevant to Mr. Goddard’s claims is the “cumulative impact” analysis. To trigger a need for additional environmental review, the Goddard Appeal needs to provide substantial evidence that the EIR failed to account for the cumulative impact of development that has occurred and is reasonably expected to occur.

The Yarbrough DEIR’s cumulative effects analysis used both “the projections of the Southport Framework Plan regarding future development within the City’s Southport planning area” as well as “a list of proposed projects in the Southport area that would include development intensities beyond what was planned in the Southport Framework Plan.” (DEIR, p. 5-5.) The DEIR acknowledged that there were “a large number of projects proposed in the Southport area that, if approved, would result in an increase in population and commercial uses.” (DEIR, p. 5-5.) The DEIR evaluated cumulative impacts associated with “reasonably foreseeable, relevant projects” that, when combined with the Yarbrough Project, "could contribute to cumulative effects.” (DEIR, p. 5-6.) The traffic volumes of each of the projects identified by Mr. Goddard were evaluated in the 5 The Yarbrough Project design reduced traffic impacts, as noted in the Yarbrough Draft EIR (“DEIR”). As a result, the reduction in traffic associated with the Project’s density was “not fully reflected in trip generation estimates” in the DEIR, meaning the traffic analysis likely overestimated traffic impacts. (See DEIR, pp. 2-4—2-5.) The staff report also points out that changes in the traffic improvement sections of the ARDA actually accelerate and expand the Project’s traffic improvement obligations, specifically with respect to the widening of Jefferson Boulevard.
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Yarbrough DEIR’s cumulative effects analysis.6
In addition, the cumulative impact analysis looked at the potential traffic impacts from two additional projects that have subsequently been withdrawn. The DEIR specifically evaluated cumulative impacts based on both the development projections in the Southport Framework Plan as well as four projects that were pending at the time: the River Park Project, the Harbor Pointe Project (renamed as the Liberty Project), the Parks at Southport Project, and University Park Project. (DEIR, p. 5-6—5-8; see also p. 2- 1 and Figure 2-2.) The unit count of these four projects is summarized below.

Project Unit count
identified in EIR
Unit count
planned today
Comment
Liberty (formerly
“Harbour Pointe”)
1,724 1,503
River Park 2,788 2,284
Parks at Southport 2,050 0 Project withdrawn
University Park 2,500 0 Project withdrawn
Total 9,062 3,787
As clearly shown by the above table, the Yarbrough EIR considered as part of its cumulative impact analysis the traffic impacts associated with the development of 9,062 new residential units among these four projects. Based on what is known today, that overstates reasonably foreseeable residential development in Southport by more than 5,000 units.

The Kinect Project (also referred to as Jefferson Village Apartments) is also identified in the Goddard Appeal. This project is a 322 unit multifamily residential project located at 2301-2425 Jefferson Blvd. The City reviewed the application for conformance with the zoning requirements in effect at that time, which permitted multifamily by right on this property. The City determined the Kinect Project was consistent with the use classifications and development intensity assumed in the Southport Framework Plan.7 For decades the site of the Kinect Project has been designated for mixed use (which includes denser residential development) in the Southport Framework Plan, with an allowed residential density of up to 25 dwelling units per acre, and the Kinect Project is consistent with the Southport Framework plan.8 The Yarbrough EIR’s assessment of cumulative-level impacts was based on buildout projections provided in the Southport Framework Plan, as described repeatedly throughout the document. (See e.g., DEIR, pp. 5-1—5-9, 5-15—19, 5-33, 5-34, 5-38.) As such, the Yarbrough EIR traffic analysis took into consideration the traffic impacts of the current Kinect Project.

Mr. Goddard’s “Appellant Brief” only serves to validate this analysis. For example, Mr. Goddard 6 Note that one of those projects – the Liberty Project – was identified by a different name at the time (the “Harbour Pointe Project”. The “Kinect” project was not specifically identified in the Yarbrough EIR, but that project is consistent with the anticipated densities for the site and therefor was included in the densities anticipated by the Southport Framework Plan at that time.
7 https://www.cityofwestsacramento.org/home/showpublisheddocument/6834/636541243675970000 8 See Southport Framework Plan, as amended through August 5, 1998, pp. 6, 35. 349
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states that the City has the burden to “show why the environmental impacts expected when the EIR was written still hold today”. He then goes to state that the Yarbrough EIR “did not address” the Liberty, River Point, and Kinect Projects. As show above and in the staff report, this is simply incorrect. The Liberty and River Point projects were explicitly identified in the EIR (though the Liberty project had a different name at the time), and the Kinect Project is well within the envelop of anticipated development based on allowed uses at the time of the EIR. Mr. Goddard also fails to acknowledge that the cumulative impact analysis in the Yarbrough EIR considered the impact of two projects that have subsequently been withdrawn.

In summary, the Goddard Appeal does not identify any new or substantially more severe significant environmental impacts associated with any cumulative projects approved since the certification of the Yarbrough EIR, nor any newly feasible mitigation measures or alternatives that would substantially reduce significant environmental effects of the Project. There is, therefore, no trigger for supplemental environmental review of the Project under CEQA based on traffic. b. Phase I VTSM and ARDA Project Revisions
None of the modifications incorporated into the Phase I VTSM and the ARDA would result in any increase in the number of Project-related trips that were evaluated in the 2008 Yarbrough EIR. The Yarbrough Project remains obligated to widen Jefferson Boulevard, and the proposed amendments included in the ARDA expand these obligations to include widening and improvements north of the Project to Linden Road (originally, the Project was required only to widen Jefferson north to Marshall Road). In addition, the ARDA accelerates these improvements, requiring completion prior to the 400th final residential unit inspection. These improvements include street widening, sidewalks, bike lanes, and landscaping. Other changes to the ARDA relate to fee credits and do not implicate CEQA impacts.

The Goddard Appeal does not identify any new or substantially more severe significant environmental impacts associated with the Phase I VTSM and ARDA, nor does it identify any new or substantially different, feasible mitigation measures or alternatives that would substantially reduce significant environmental impacts as to any category of his asserted claims. As a result, there is no trigger for supplemental environmental review of the Project under CEQA.

2. Evacuation Planning and Flood Risk
The Goddard Appeal and subsequent correspondence from Mr. Goddard appear to claim that supplemental environmental review is needed to assess impacts to the City’s evacuation plan, specifically in the context of potential flood risk. Mr. Goddard, however, has not identified any specific change in the Project, change in circumstances, or new information of substantial importance that he believes results in a new Project impact or a substantial increase in any previously identified significant impacts.

The status of the levees protecting the City were understood and discussed in the Yarbrough EIR (see, e.g., the discussion at Impact HYD-10 in the EIR and associated mitigation measures). The EIR acknowledged that even with the proposed mitigation, potential impacts would remain significant and unavoidable. In correspondence Mr. Goddard claimed that construction of any part of the Yarbrough Project would violate SB 5. This is simply incorrect, since the date for achieving an “urban level of flood 350
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protection” originally established in SB 5 has subsequently been extended (by SB 586 (2024)), and now requires that West Sacramento achieve that level of flood protection by 2040. Attached to the staff report is a memo provided by Greg Fabun, the City’s Flood General Manager. As explained by Mr. Fabun, the West Sacramento Area Flood Control Agency (WSAFCA) has been prioritizing levee improvement projects to work first on those projects that provide the greatest risk reduction first, including projects that directly benefit residents of Southport, and is on track to complete levee improvement projects by 2037.

Mr. Fabun also notes that WSAFCA "has made adequate progress findings annually and anticipates continuing to be able to make adequate progress findings through completion" of all required improvements, prior to 2040.

The Yarbrough EIR also specifically evaluated whether the Project would impair implementation of or physically interfere with an adopted emergency response plan or emergency evacuation plan. As discussed in the prior section of this memo, the Yarbrough EIR’s cumulative impact analysis included an evaluation of Southport Framework Plan assumed development plus several major projects that were pending at the time, two of which never moved forward. The DEIR concluded that with implementation of Mitigation Measure HAZ-8, impacts would be less than significant. Mitigation Measure HAZ-8 requires the Project developer to develop and implement a Construction Traffic Control Plan during the final stage of project design. The EIR did not require an update to the City’s evacuation plans as a necessary mitigation measure. Nonetheless, the ARDA requires the Project to fund its proportional share of an update to the City’s Evacuation and Emergency Management Plan when the City conducts its update. (ARDA, § 16.5.)
In email received by the City subsequent to the filing of his appeal, Mr. Goddard complained about the lack of additional bridges “to I-5” and that the proposed Enterprise Bridge “won’t happen for 10 years and [cost] 30 million dollars.” The Yarbrough EIR, however, did not assume that new bridges out of Southport would be built before the Yarbrough Project developed and did not condition the Project on the future construction of the Enterprise Bridge.9
As described in the staff report and explained in the October 18 memo from Fire Chief Binns, the City has a current evacuation map based on existing infrastructure and roadways, and updates that map on a regular basis. Today's evacuation plans are not based on future bridge or road construction.

The Goddard Appeal does not identify any new or substantially more severe significant environmental impacts in the context of emergency evacuation plans nor does it identify any new or substantially different, feasible mitigation measures or alternatives that would substantially reduce significant environmental impacts. As a result, there is no trigger for supplemental environmental review of the Project under CEQA.

3. Impacts to Water Supply and Quality
The Goddard Appeal includes general questions regarding the Project’s water usage and water quality issues, such as where the water is coming from and appears to claim the Project’s lakes, canal, 9 The only future bridge discussed in the original Development Agreement was a planned future crossing of the deep water ship channel (the “South River Road Bridge”). That bridge, of course, has already been completed – the McGowan Bridge.
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and golf course will have impacts on water supply. The Goddard Appeal does not identify any Project change or change in circumstances that would cause the Yarbrough EIR’s assessment of impacts to either water quality or water supply to require additional supplemental review. The golf course and canals have been a part of the Project and were evaluated in the Yarbrough EIR. The proposed Phase I VTSM and ARDA do not increase the number of residential units or other uses beyond what was previously assumed in the Yarbrough EIR. The only water supply or water quality related revisions currently at issue are (1) revisions to the Phase I VTSM to show retention of the Reclamation District 900 Main Drainage Canal (“Main Drain”) that currently flows through the Project site;10 (2) revisions to the ARDA to reflect the fact that the Drainage Master Plan and Water Master Plan were approved; and (3) revisions to the ARDA to reflect that the Main Drain no longer will be removed. As discussed below, none of these modifications trigger supplemental review under CEQA.

DEIR Chapter 3.8, Hydrology and Water Quality, comprehensively addressed the Yarbrough Project’s impacts on water supply and water quality. A Water Supply Assessment (WSA) was prepared for the Project and “ . . . assessed the adequacy of existing and planned future water supplies to the City of West Sacramento, and the City’s ability to meet the water supply demands of the proposed Yarbrough project. Information from the WSA was used to analyze the environmental impacts on water supply resulting from the proposed project. As stated in the Hydrology and Water Quality Chapter of the EIR, impacts to water supply would be less than significant.” (FEIR, 3-59.) The EIR specifically evaluated whether the Project had the potential to violate any water quality standards or otherwise substantially degrade water quality, substantially deplete groundwater supplies or interfere substantially with groundwater recharge, result in insufficient water supplies, or substantially degrade the existing surface and groundwater quality due to erosion and siltation. (DEIR, p. 3.8-12.) The only significant and unavoidable impact identified in the Yarbrough EIR was with respect to flooding and the levee system at the time, with the impacts associated to the need for funding for specified levee improvements. (Impact HYD-10). The lakes that are part of the Project provide added flood control and stormwater drainage, in addition to providing recreational functions. (DEIR, pp. ES-3, 2-3, 2-6.) The lakes are designed to provide enough floodwater storage to replace the capacity currently provided by the agricultural land on the Project site and accommodate runoff from both the proposed development and other future developing areas of Southport. (DEIR, p. 2-6.) As shown in the Phase I VTSM, the Main Drain will remain and be connected to the Project’s proposed lake system. Minor reconfigurations of the lake system are incorporated into the Phase I VTSM to accommodate retention of the Main Drain. As a result, previously identified impacts associated with removal of the Main Drain (e.g., loss of ruderal habitat, impacts to giant garter snake aquatic habitat (BIO5), reduction in floodwater storage) will no longer occur, resulting in a reduction of significant impacts previously assumed and mitigated in the Yarbrough EIR. (EIR, pp. 2-6, 3.4-36.) The Project still is required to develop and maintain a Master Drainage Plan that has been prepared and approved. 10 Under the original Development Agreement, this canal would have been eliminated. Mr. Goddard’s "Appellant Brief" asserts, for the first time, that retaining the Main Drain “introduces new risks of stormwater contamination” but provides no explanation of what he means by that and provides no facts to support this assertion.

As noted elsewhere in this memo, speculation unsupported by facts is not substantial evidence. 352
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Finally, the City’s recently approved Housing Element discussed water supplies with respect to future development in West Sacramento. The Housing Element shows that the City’s water treatment plant’s “capacity is sufficient to meet the demand for water in West Sacramento for the foreseeable future, including anticipated needs for future development of Southport and the specific plan areas discussed above. Most of the major subdivisions in Southport are served by the City water system.” (Housing Element, A.3- 17.)
The Goddard Appeal does not identify any new or substantially more severe significant environmental impacts in the context of either water supply or water quality that would be potentially associated with the City’s approval of the Phase I VTSM and ARDA, nor does it identify any new or substantially different, feasible mitigation measures or alternatives that would substantially reduce significant environmental impacts with respect to water supply or water quality. As a result, the Goddard Appeal claims with respect to water supply and water quality impacts do not identify any trigger for supplemental environmental review of the Project under CEQA.

4. Impacts to Biological Resources
Mr. Goddard’s “Appellant Brief” asserts, for the first time, that “the project threatens the habitats of the giant garter snake and Swainson’s hawk, and claims that “updated mitigation plans are required under the Yolo HCP/NCCP.” These impacts were discussed at length in the Yarbrough EIR and mitigation provided. Mr. Goddard’s mention of the Yolo NCP/NCCP is presumably intended to convey the notion that since the Yolo HCP/NCCP was adopted after the Yarbrough EIR was completed, a new analysis is required. As discussed in Section 8 of this memo, the adoption of new administrative regulations does not constitute “significant new information” under CEQA.11 On a more practical level, by retaining the Main Drain, impacts previously identified in the Yarbrough EIR will no longer occur.

The Goddard Appeal does not identify any new or substantially more severe significant environmental impacts in the context of biological resources associated with the City’s approval of the Phase I VTSM and ARDA, nor does it identify any new or substantially different, feasible mitigation measures or alternatives that would substantially reduce significant environmental impacts with respect to water supply or water quality. As a result, the Goddard Appeal claims with respect to biological resources do not identify any trigger for supplemental environmental review of the Project under CEQA.

5. School Impacts
The Goddard Appeal generally claims there will be new impacts on schools caused by the Yarbrough Project. In Mr. Goddard’s subsequent email correspondence to the City he alleges, without citation to any support, that the “high school is maxing out at 1000 plus students, the K-8s in Southport are maxing out.”12 As provided below, the Yarbrough EIR accounted for and mitigated those impacts. 11 Specifically in connection with species protection, see Fort Mojave Indian Tribe v. Department of Health Services (1995) 38 Cal.App.4th 1574, 1605-1606.
12 K. Goddard email to A. Laurel et al. dated Sep. 10, 2024, 3:34 p.m. 353
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The Yarbrough EIR evaluated impacts on schools based on the number of proposed dwelling units and Washington Unified School District ("WUSD") student yield rates and concluded that the Project’s dedication of a school site in combination with the payment of school impact fees ensures that impacts to these public services are less than significant. (DEIR, p. 3.14-20.) State law requires that all development projects pay school impact fees to address the costs of new school facilities incurred due to additional at local schools, and it is important to note that the payment of these fees is deemed, by statute, to be full mitigation under CEQA (See Gov. Code § 65996(b) [“The provisions of this chapter are hereby deemed to provide full and complete school facilities mitigation and, notwithstanding . . . [CEQA] or any other provision of state or local law, a state or local agency may not deny or refuse to approve a legislative or adjudicative act, or both, involving, but not limited to, the planning, use, or development of real property . . . on the basis that school facilities are inadequate.”].) Although payment of school impact fees fully mitigates environmental impacts, the Project further includes the dedication of land for an elementary school site consistent with both the Southport Framework Plan and the WUSD master plan. (DEIR, p. 3.14-21.) Section 16.2 of the DA, unmodified in the ARDA, requires that the developer enter into an agreement with the WUSD, to the satisfaction of the School District, for the phasing and development of school facilities to serve the Project. This agreement must be in place prior to the approval of the first small lot final map for the Project. Finally, it is relevant that other projects in the area, specifically the River Park and Liberty Projects, also require the designation of school sites within their project sites.

The Goddard Appeal does not identify any new or substantially more severe significant environmental impacts in the context of school impacts that would be potentially associated with the City’s approval of the Phase I VTSM and ARDA, nor does it identify any new or substantially different feasible mitigation measures or alternatives that would substantially reduce significant environmental impacts with respect to schools. As a result, there is no trigger for supplemental environmental review of the Project under CEQA.

6. Police Services
The original Yarbrough DA required the dedication of land within the Project site for a police annex, but this was not a mitigation measure. The proposed ARDA removes this requirement and instead requires the Project to participate in the formation of a city-wide “Public Safety” financing mechanism, which will fund fire and police personnel, equipment, and maintenance costs. The Goddard Appeal and subsequent email from Mr. Goddard claims that these changes “eliminate[s] police needs entirely in this agreement”, lets “the developer off the hook”, and provides the City with “nothing in return.” As described below, because the Yarbrough EIR determined that there will not be any impacts to police protection services, the provisions of the original DA and ARDA pertaining to the police annex are not related to a CEQA impact, and these provisions were not required as a mitigation measure.

Furthermore, for the reasons set forth in the staff report and the October 16 memo from Police Chief Strange, the change to the ARDA (replacing a site for a police annex with participation in a financing mechanism that will provide a source of funding forth police and fire personnel and equipment) is the preferred approach of the City’s Police Department because it provides greater operational flexibility and an "ongoing stream of revenue that can be adapted to evolving needs in public safety without being tied 354
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to a specific facility."
With respect to police services, the Yarbrough EIR determined that Project impacts to police protection services (which are evaluated in terms of the need for new facilities, not service ratios) would be less than significant and no mitigation was required. (DEIR, pp. 3.14-19—20.) The Project was, and still is, required to pay development impact fees to the City to cover necessary public service facility improvements. The City administration, the Police Department, and the Fire Department collectively proposed the change based on an assessment of current needs. Under the ARDA, the Project is required to participate in the City-wide “Public Safety” financing mechanism prior to the approval of the first small lot final map for the project. The City Fire Fee typically is required to be paid as each new building permit is approved in a development; this revision in the ARDA provides the City with these fees sooner than otherwise required. The Project will still dedicate land within the Yarbrough Project site for a new fire station, as required in the original DA, and the ARDA requires that the Project fund the design for the new fire station upon the approval of the first small lot final map. (ARDA, Exh. H.) The Goddard Appeal does not identify any new or substantially more severe significant environmental impacts in the context of impacts to police services that would be potentially associated with the City’s approval of the Phase I VTSM and ARDA, nor does it identify any new or substantially different, feasible mitigation measures or alternatives that would substantially reduce significant environmental impacts with respect to police services. As a result, there is no trigger for supplemental environmental review of the Project under CEQA.

7. Golf Course Feasibility
The Goddard Appeal claims that “no 18 hole golf course will ever occur in West Sacramento,” complains that the “city has no contingency plan if a golf course does not arise and no feasibility study to even consider whether a golf course is a good idea,” and speculates that if a golf course is not provided, the City will be left “with unmitigated open space which usually turns to houses eventually.” These claims lack any factual basis and are wholly speculative. As provided in CEQA Guidelines section 15126.6, “[a]n EIR need not consider an alternative whose effect cannot be reasonably ascertained and whose implementation is remote and speculative.” (Residents Ad Hoc Stadium Committee v. Board of Trustees (1979) 89 Cal. App.3d 274). At the time of the certification of the Yarbrough EIR, and presently, there is no information available that indicates that the areas of the Yarbrough Project that are identified for use as a golf course will instead be converted into some other use, residential or otherwise. Moreover, the Goddard Appeal’s claims with respect to golf course feasibility are too speculative to warrant further evaluation. The General Plan and Zoning designations for the portions of the Project identified as a golf course will not allow construction of housing to occur, and any future use of the property other than as a golf course would require discretionary actions by the City (amendments to the General Plan and Zoning) as well as a full environmental review process under CEQA.

As with other claims, the Goddard Appeal does not identify any new or substantially more severe significant environmental impacts related to the proposed golf course that are associated with the City’s approval of the Phase I VTSM and ARDA, nor does it identify any new or substantially different, feasible mitigation measures or alternatives that would substantially reduce significant environmental impacts with respect to any of the Project significant impacts. As a result, there is no trigger for supplemental 355
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environmental review of the Project under CEQA.

8. Vehicle Miles Traveled (VMT) and Greenhouse Gas Emissions Mr. Goddard’s “Appellant Brief” asserts that the EIR is insufficient because it analyses traffic impacts based on Level of Service (LOS) rather than VMT, and because changes in CEQA enacted after the EIR was certified compel a more detailed analysis of project greenhouse gas emissions (GHG). As a threshold matter, changes in CEQA apply prospectively only13 and CEQA case law makes it clear that a change in law does not constitute the type of “new information” that could trigger the need for subsequent or supplemental environmental review.14 Specific to VMT and GHG, the Yarbrough EIR did consider VMT and GHG in its analysis (Chapter 3.3) of traffic impacts, and the Goddard Appeal asserts no facts indicating that the traffic analysis performed for the Yarbrough EIR was insufficient (as discussed above).

C. Discussion of Goddard Appeal non-CEQA Claims
The Goddard Appeal contains general criticisms of the City Planning Commission’s approval of the Phase I VTSM and recommendation of approval of the ARDA that are unrelated to CEQA. For example, the Goddard Appeal criticizes the Project’s provision of affordable housing and demands the City hold a public workshop on the Yarbrough Project and provide additional expanded notice. Neither of these claims identify any legal inadequacies in either the Planning Commission’s decisions, nor in the proposed Phase I VTSM and ARDA.

1. Affordable Housing
The Goddard Appeal criticizes the Project’s inclusion of affordable housing units, expressing a desire for fewer (or no) affordable units. These criticisms do not identify any legal deficiency with respect to CEQA, nor any legal deficiency with respect to the City’s required findings on the Phase I VTSM or the City’s approval of the ARDA. Instead, these criticisms represent Mr. Goddard’s personal opinions. The Project approvals require the Project to provide affordable housing in accordance with the City’s Municipal Code. Consistent with the requirements of Chapter 15.40 of the City’s Municipal Code, the Project must provide 10 percent of the units (304 units) as affordable units to low-income households, as required under the original DA. (West Sac. Mun. Code, § 15.40.060(A)(2).) Under the ARDA, the Project would be required to include 120 affordable units in Phase I and an additional 84 units in Phase I in compliance with obligations carried over, with Council consent, from the Bridgeway Lakes II project.

Attached to the staff report is an October 18 memo from Traci Michel, the City's Director of Economic Development and Housing, which provides additional background on the City’s affordable housing 13 CEQA Guidelines, 2 CCR 15007(b), (c).
14 Olen Properties Corp. v. City of Newport Beach (2023) 93 Cal.App.5th 270, 281; Concerned Dublin Citizens v. City of Dublin (2013) 214 Cal.App.4th 1301, 1320; Citizens for Responsible Equitable Environmental Development v. City of San Diego (2011) 196 Cal.App.4th 515, 532. 356
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programs. As described in that memo, the affordable housing obligations of the Project are consistent with commitments made by the City when it obtained certification for the City’s Housing Element in 2021.

2. Demand for a Public Workshop and Supplemental Mailings The Goddard Appeal demands that the City hold a “public workshop” regarding the Project to give residents (including any that moved to West Sacramento since approval of the Yarbrough Project) more opportunity to learn and engage on the Yarbrough Project. The Goddard Appeal does not, however, claim that any of the City’s notices or public process are legally deficient.

The City has maintained a webpage for the Project for quite some time, which includes links to copies of the original DA, Yarbrough EIR, Master Design guidelines, Phase I VTSM, Draft Open Space Guidelines, Public Financing and Phasing Plan. The Planning Commission held public hearings on the Project on August 1 and August 15, 2024, to consider whether to approve the Phase I VTSM and consider whether to recommend the ARDA. During that public hearing the public was provided an opportunity to comment on the Project, and the public also had the opportunity to submit written comments in advance of the public hearing. Because the ARDA must be approved by the City Council, even without the Goddard Appeal, the City Council is required to hold a public hearing on the approval of the ARDA.

Based on the filing of the Goddard Appeal, the City Council will now also hold a public hearing to consider whether to grant or deny the Goddard Appeal.

Ahead of the City Council’s November 6 hearings, the City has provided expanded noticing (both mailed and published), as well as social media postings regarding the City Council’s consideration of the appeal and the ARDA. This expanded notice is described in the staff report.

Conclusion
For the reasons described above, none of the triggers for supplemental environmental review under CEQA are present, and the Project remains consistent with the Project as evaluated in the Yarbrough EIR. The Goddard Appeal likewise does not identify any legal basis for disapproval of the Phase I VTSM based on either the City’s subdivision standards or the Subdivision Map Act. While the City Planning Commission’s recommendation of approval of the ARDA is not subject to administrative appeal, the Goddard Appeal also does not identify any legal basis for the City Council to disapprove the ARDA based on either the City’s Development Agreement standards or state law pertaining to development agreements.
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City of West Sacramento
Memorandum
TO: Honorable Mayor and Members of the City Council
FROM: Steve Binns, Fire Chief
DATE: October 18, 2024
SUBJECT: Evacuation Plan
Regarding the subject of evacuation in West Sacramento, first and foremost, the City is well prepared to initiate an evacuation or partial evacuation of our residents. The Police Department has the legal authority to initiate and manage an evacuation, small or large, and is trained to do so. In the event of a large-scale incident, the City’s Emergency Operation Center (EOC) will be activated, and the decision and organization of an evacuation will be decided and coordinated within the EOC, including input from City management and emergency services. As each emergency presents its own specific challenges, we cannot have a generic route plan; instead, we create the route plan to accommodate those challenges during the incident to best manage the flow of vehicles and people as deemed most appropriate.

From a pre-incident planning perspective, the City has always had an evacuation plan and updates the plan regularly. With that, we are currently working on an update to the plan that will include additional tools for the public and emergency responders, to assist in the event of an evacuation. As members of the Yolo County Joint Emergency Management System (JEMS), we are working collaboratively with multiple agencies and departments within Yolo County to provide a comprehensive and interoperable plan. Included with this update will be a county-wide outreach plan that will inform the public of the updated plan and how to access it. In the meantime, and before the updated plan and tools are made available, the City has an evacuation map that details all the main thoroughfares throughout the City, which can be accessed using the link below. It is important for the public to be aware of these routes as a specific evacuation route plan will include some, if not all, of the routes on the map.
https://www.cityofwestsacramento.org/home/showpublisheddocument/4272/636408241506400000 To address any new development in the City, as mentioned above, we will amend the plan and associated documents and maps as necessary. With specific regard to the Yarbrough developer agreement, it includes a line item and funding for the plan update inclusive of the project. 358
West Sacramento Police Department
550 Jefferson Blvd
West Sacramento, CA 95606
(916) 617-4900
www.cityofwestsacramento.org
550 Jefferson Boulevard
West Sacramento, CA 95605
[email protected]
October 16, 2024
To: Andrea Ouse, Director, West Sacramento Community Development Department From: Robert Strange, Chief, West Sacramento Police Department Re: Response to Modification Proposal of Yarbrough Development Agreement Please consider this memorandum a formal response and concurrence with the proposed Yarbrough Development Agreement (DA) modification, removing the inclusion of a police annex as part of the planned Fire Station #42. Agreement with the removal of the police annex is contingent on the formation of the Public Safety Community Facilities District, inclusive of the Yarbrough Development area, which will be the financing mechanism to cover public safety costs including fire and police personnel, equipment, and maintenance costs.

Background:

In the 2008 version of the Yarbrough Development Agreement (DA), a police annex was proposed under Section 16.1, which outlined plans for a combined fire and police facility to be situated as part of the planned Fire Station #42. The intention of this annex was to support the expansion of public safety services in the area, as the community develops and grows.

Upon further review and in consideration of current best practices, the WSPD has determined that the inclusion of a dedicated police annex at this location may no longer be the most effective or flexible means of addressing public safety needs. Instead, it has been proposed that the Yarbrough Development Agreement should include funding for police services and equipment through contributions to the Community Facilities District (CFD) and a Public Safety CFD.

Rationale:

Removing the proposed police annex from the previous DA will allow the West Sacramento Police Department greater operational flexibility. Funding through the CFD provides an ongoing stream of revenue that can be adapted to evolving needs in public safety without being tied to a specific facility. This approach aligns with current best practices in public safety funding; emphasizing adaptable, community-based service models over fixed-location facilities. It allows the Police Department to strategically allocate resources, personnel, and equipment where they are most needed as demands fluctuate.

Attachment 6
359
West Sacramento Police Department
550 Jefferson Blvd
West Sacramento, CA 95606
(916) 617-4900
www.cityofwestsacramento.org
Conclusion:

Based on these considerations, I recommend supporting the revisions in the DA as proposed by staff, including the establishment of appropriate CFDs and the removal of the police annex from the Yarbrough Development Agreement. The ongoing funding through the CFD offers a more adaptable and efficient solution for addressing the public safety needs of our growing community.
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MEMORANDUM
TO: Aaron Laurel, City Manager
FROM: Traci Michel, Economic Development and Housing Director Raul Huerta, Housing Manager
DATE: October 18, 2024
RE: Affordable Housing for Yarbrough Development
Shortages of affordable housing have been a long-standing challenge in California, as well as in the rest of the US. High interest rates and low housing inventory contribute to this issue, along with the growing number of people who are looking for homes to raise families. A report by the National Now Income Housing Coalition noted that the U.S. has a shortage of 7.3 million rental homes that are both affordable and available to renters with extremely low incomes.

Extremely low incomes are those incomes at, or below, either the federal poverty guideline or 30% of their area median income, whichever is greater. In California, only 24 affordable and available rental homes exist for every 100 extremely low-income renter households. Furthermore, a 2018 report from the State Department of Housing and Community Development (HCD) found that production of new homes averaged less than 80,000 annually over the last 10 years, and ongoing production at that time was expected to continue falling far below the projected need of 180,000 additional homes annually. These numbers were exacerbated by COVID-19 which further impacted affordable housing development. In West Sacramento, more than half of the population falls within the extremely low, very low-, or lowincome household range (see Housing Element Appendix A, Section 1.2.1). This results in more West Sacramento current residents qualifying for affordable housing than can be accommodated. Affordable housing is not an ”immigration magnet” as has been alleged but is needed to serve our current community members.

Since the 2003 Housing Element was adopted, the city voluntarily required affordable housing citywide.

Most, if not all, affordable housing projects in the city have wait lists. In recent years, the City has implemented various policies and programs to support the development of all types of housing, including affordable housing. These policies and programs can be found in the City’s Housing Element of the General Plan adopted by the City Council and certified by HCD in 2021. Several goals and policies in the Housing Element support citywide affordable housing objectives including:
• POLICY HE-P-1.1: The City will continue to promote the development of a broad mix of housing types by adopting affordable housing goals and providing incentives to achieve those goals citywide.
• POLICY HE-P-1.3: While promoting the provision of housing for all economic segments of the community, the City will seek to ensure high quality in all new residential development. • POLICY HE-P-6.1: Affirmatively further fair housing opportunities throughout the City for all persons by addressing significant disparities in housing needs and access to opportunity for all groups protected by state and federal law, especially population groups protected by the California Fair Employment and Housing Act (Part 2.8, commencing with Section 12900 of 361
Division 3 of Title 2), Section 65008, and any other state and federal fair housing and planning law.
• PROGRAM HE-PR-6.3: AFFIRMATIVELY FURTHERING FAIR HOUSING The City will continue to promote housing opportunities for all persons regardless of race, religion, sex, marital status, ancestry, national origin, color, disability, familial status, source of income, or sexual orientation by continuing to contract for fair housing services, currently provided by Project Sentinel. To support compliance with fair housing requirements, the city will:
− Replace segregated living patterns with integrated and balanced living patterns. − Take meaningful actions that will promote fair housing opportunities for low-and moderateincome tenants and tenants of affordable housing, including subsidized housing. − Continue to maintain compliance with civil rights and fair housing laws. − Continue to reduce racially and ethnically concentrated areas of poverty into areas of opportunity without displacement through its planning, zoning, and economic development efforts and partnerships with other public agencies and community-based nonprofit organizations.

In 2023, HCD designated West Sacramento as a Pro-Housing jurisdiction for implementing such policies and programs. The Pro-Housing designation allows the city to apply to the State’s Pro-Housing Incentive Program and also allows the city to score higher in other HCD competitive funding programs that support the development of affordable housing.

While the City has actively supported the development of affordable housing, there is currently a disparity in the distribution of these affordable units. Less than 10% of all affordable housing in the city is located in Southport, which is considered a high-resource area by HCD. This specific issue was highlighted by both HCD and Legal Services of Northern California during the development of the last Housing Element.

As a result, the City is required to promote housing opportunities equitably throughout the community and expand lower-income housing in high resource areas, such as Southport (Housing Element Program

1.9). Affordable housing proposed as part of the Yarbrough Development will not only provide much needed affordable housing but it will assist to alleviate the disproportion of affordable housing north of the canal and implement Housing Element Program 1.9.
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City of West Sacramento
Memorandum
TO: West Sacramento City Council
FROM: Greg Fabun, Flood General Manager
DATE: October 30, 2024
SUBJECT: West Sacramento Levee Improvement Program – Status Update Background
The levees protecting West Sacramento from the Sacramento River were constructed in the early 1900’s, with the Yolo Bypass levee modified with the completion of the deep-water ship channel in 1963. For generations, the levee system has performed well with no major levee failures.

Following the lessons learned from Hurricane Katrina (2005), the US Army Corps of Engineers (USACE/Corps) “re-wrote” the engineering standards for federal levees. Essentially overnight, the City of West Sacramento went from having approximately 400-yr level of flood protection to less than 100-yr level of protection. Accordingly, in 2006, the City commissioned an evaluation of its levee system, property owners passed a flood assessment to help raise the local share of costs to repair the levees and requested a formal re-evaluation of the levee system by the USACE. That effort, a General Reevaluation Report (GRR) was initiated in 2009 and completed in 2015. The resulting West Sacramento Project was authorized by Congress in the 2016 Water Infrastructure Improvements for the Nation Act. The Project will achieve at least 200-year level of flood protection for the City of West Sacramento.

Proposition 1E, the Disaster Preparedness and Flood Protection Bond Act, was passed by California voters in November 2006 and included funding for flood control structure repair.

Through the Early Implementation Program (EIP) and Urban Flood Risk Reduction (UFRR) program, California allocated $1.2 billion of Proposition 1E funds to provide “worst first” improvements to address urban flood risk improvements as identified in the Central Valley Flood Protection Plan.

The West Sacramento Area Flood Control Agency (WSAFCA), a Joint Powers Authority formed in 1994 between the City of West Sacramento and Reclamation Districts 537 and 900, has been advancing a comprehensive program of activities referred to as the West Sacramento Levee Improvement Program (WSLIP). The WSLIP includes: (1) partnering with the USACE and the Central Valley Flood Protection Board (State) to implement the West Sacramento Project (Project); (2) partnering with the State to construct improvements along several high risk reaches of levee protecting the City in advance of the Project; and (3) community outreach regarding the existing flood risk and improved emergency response planning. The primary goal of WSAFCA and the WSLIP is to achieve at least a 200-year level of flood protection for the City as quickly as possible.

Completed Projects
Using Prop 1E and local funds, WSAFCA partnered with the State to make improvements to the levees protecting the City while the GRR was in progress. Since 2006, WSAFCA, the State and the USACE have expended approximately $317.2 million toward the planning, design, land acquisition, and construction toward completion of the Project using a “worst first” criteria, that is prioritized projects to provide the greatest risk reduction first. Four EIP and/or UFRR projects 363
were completed including the I Street, CHP, Rivers and Southport. These projects were all led by WSAFCA and completed before the USACE received authorization in 2022 to construct the remainder of the Project. The USACE completed its first phase of the Project, the Yolo Bypass Levee – South in 2023.

Current/Future Effort
Construction of the Yolo Bypass Levee – North is underway and expected to be completed this calendar year. Several projects are currently in design by the Corps and include four contracts along the Sacramento River North Levee (contracts 1S, 2S, 3E and 4E), and the Stone Lock Closure.

Including the segments currently in design or construction, there are eleven levee segments that remain to complete the Project. The current schedule has all segments completed by 2037.

Urban Level of Flood Protection (ULOP)
Senate Bill 5 (2007) requires cities and counties within the Sacramento and San Joaquin Valleys to make findings related to an urban level of flood protection before approving certain land-use decisions. An “urban level of flood protection” is defined as 200-year level of flood protection, that is, the level of protection necessary to withstand flooding that has a 1-in-200 chance of occurring in any given year.

SB 5 requires cities and counties to achieve 200-year level of flood protection by 2025. It also requires the local flood management agency, WSAFCA, to make annual findings demonstrating adequate progress in achieving the 200-year level of protection. However, SB 586, passed in April 2024, extends the deadline for West Sacramento to 2040. WSAFCA has made adequate progress findings annually and anticipates continuing to be able to make adequate progress findings through completion of the Project on or before the deadline of 2040. 364
RESOLUTION 24-119

A RESOLUTION OF THE CITY COUNCIL

OF THE CITY OF WEST SACRAMENTO

RECOMMENDING DENIAL OF THE APPEAL FOR THE YARBROUGH PHASE I THE VESTING TENTATIVE SUBDIVISION MAP NO. 5224
WHEREAS, in connection with its consideration of a Development Agreement for the Yarbrough Project (DA) and other associated land use entitlements, on June 18, 2008, the City Council certified a Final Environmental Impact Report for the Yarbrough Project (EIR); and
WHEREAS, on June 18, 2008, the City Council approved the Yarbrough DA; and WHEREAS, on January 11, 2022, an application was submitted for the Phase I Vesting Tentative Subdivision Map (VTSM) for the Yarbrough Project; and WHEREAS, the Phase I VTSM includes approximately 153 acres of the larger 713 acres Yarbrough project area; and
WHEREAS, the initial development within the Phase I area will include the creation of 548 lots comprising residential neighborhoods, two lake features, and connections to adjacent arterial roadways among other improvements; and WHEREAS, the Planning Commission held a public hearing on the Phase I Vesting Tentative Subdivision Map (VTSM) and the Amended and Restated Development Agreement for the Yarbrough Project on August 1, 2024; and WHEREAS, the Planning Commission voted to continue the public hearing to the next regular meeting on August 15, 2024; and

WHEREAS, the Planning Commission found that the Vesting Tentative Subdivision Map No. 5224 consistent with the goals, policies, and implementation programs of the City of West Sacramento General Plan and Subdivision Map Act, and WHEREAS, on August 15, 2024, the Planning Commission approved the Vesting Tentative Subdivision Map No. 5224, substantially in the form as attached to the staff report, via Resolution 24-2PC as recommended by the Planning Commission; and WHEREAS, the City received an appeal of the Planning Commission’s approval of Subdivision Map No. 5224 on August 23, 2024; and
WHEREAS, the City Council held a public hearing on the appeal of the Phase I Vesting Tentative Subdivision Map (VTSM) for the Yarbrough Project on November 6, 2024; and
NOW, THEREFORE, BE IT RESOLVED that the City Council take the following actions:
1) Finding that, pursuant to Section 15162 of the CEQA Guidelines, no subsequent environmental review is required prior to approval of proposed Vesting Tentative Subdivision Map because the City as lead agency for the Project has determined there is no substantial evidence of a) new significant 365
environmental effects, b) substantial increases in the severity of previously identified environmental effects, or c) new information of substantial importance that would require major changes to the previously certified Yarbough Environmental Impact Report adopted by the City Council on June 18, 2008; and
2) Finding that Vesting Tentative Subdivision Map No. 5224 is consistent with the California Environmental Quality Act (CEQA) based on the Environmental Impact Report (EIR) adopted on June 18, 2008, prepared for the Project; and 3) Denying the appeal and confirm the Planning Commission’s approval of Vesting Tentative Subdivision Map No. 5224.

PASSED, APPROVED AND ADOPTED by the City Council of the City of West Sacramento on this 6th day of November 2024, by the following vote:

AYES:

NOES:

ABSENT:

Martha Guerrero, Mayor
ATTEST: Approved as to form:
_________________________ ___________________________ Jennifer Cusmir, City Clerk Jeffrey Mitchell, City Attorney CODIFY X__ UNCODIFY ____

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Public Comments
Public comment received via email for this item are available for review by clicking the link below.
(Available after 3:30 p.m. the day of the meeting.)
Public Comment | City of West Sacramento
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CITY COUNCIL AGENDA REPORT
MEETING DATE: November 6, 2024 ITEM # 17
SUBJECT:

PUBLIC HEARING AND CONSIDERATION OF FIRST READING OF ORDINANCE 24-11

PERTAINING TO AMENDMENTS TO THE YARBROUGH DEVELOPMENT AGREEMENT INITIATED OR REQUESTED BY: REPORT COORDINATED OR PREPARED BY:
[ ] Council [X] Staff
[ ] Other
Daniel Berumen, AICP, Senior Planner
Community Development Department
ATTACHMENT [X] Yes [ ] No [ ] Information [ ] Direction [X] Action

OBJECTIVE
The purpose of this item is to facilitate City Council’s consideration and approval of amendments to the Development Agreement (DA) relative to the Yarbrough Project.

RECOMMENDED ACTION
Staff respectfully recommends that the City Council:

1. Conduct the public hearing regarding the proposed amendments to Yarbrough Development Agreement (Amended and Restated Development Agreement);

2. Find that the amendments to the Development Agreement (DA) relative to the Yarbrough Master Plan are consistent with the California Environmental Quality Act (CEQA) based on the Environmental Impact Report (EIR) adopted on June 18, 2008, prepared for the Project and, pursuant to Public resources Code section 21166 and Section 15162 of the CEQA Guidelines, no subsequent environmental review is required prior to approval of proposed amendments to the Yarbrough Development Agreement because the City as lead agency for the Project has determined there is no substantial evidence of (a) new significant environmental effects, (b) substantial increases in the severity of previously identified environmental effects, or (c) new information of substantial importance that would require major changes to the previously certified Yarbough Environmental Impact Report adopted by the City Council on June 18, 2008; and

3. Conduct a first reading, by title and number only, of Ordinance 24-11 (Attachment 2) detailing the amendments to the DA subject to the conditions and findings as identified in the agenda report.

BACKGROUND
The Yarbrough project area is comprised of approximately 713 acres of undeveloped land in the southwestern part of Southport. In 2006, the Yarbrough landowner submitted development plans to convert the undeveloped parcels to a residential village which would include 3,004 residential units, a village core with commercial and mixed land uses, and extensive open space, including a 55.9-acre lake park and canal system. Implementation of the plan required amendments to the Southport Framework Plan Land Use Diagram, a consistency finding with Resolution 06-63, and a development agreement (DA) with a 15-year term (Attachment 3). The project was approved by the City Council in June 2008 and an Environmental Impact Report (EIR) was certified to satisfy requirements of the California Environmental Quality Act (CEQA).

The area is currently used for agricultural production (dry land farming). Existing structures include two residences and an abandoned residence (proposed for demolition as part of the project), and a sewer pump station (Largo Pump Station) adjacent to Southport Parkway. An 8-inch gas transmission line runs underground within the rightsof-way of Burrows Road and Jefferson Boulevard south of Burrows Road. The Reclamation District (RD) 900 Main Drainage Canal (Main Drain), which serves as the primary irrigation/ drainage conveyance facility, flows through the project site south and west and eventually into the Deep-Water Shipping Channel. Agricultural lands in the unincorporated area of Yolo County lie south of the city limits. Jefferson Boulevard traverses the site northeasterly/southwesterly. Yarbrough is in the southwest village of Southport and generally bound by the DeepWater Ship Channel (DWSC) to the west, the Bridgeway Lakes communities to the north, agricultural land immediately to the east, and the southeast village of Southport beyond the former Yolo Shortline Railroad corridor.

A narrow portion adjoins the southern city limits, which marks the proposed project’s southern boundary.

The project, which intended to be built out in a total of four phases, would establish a network of streets and trails providing both motorized and nonmotorized access. This includes a system of landscaped pedestrian, bicycle, and equestrian trails, including the lake promenade; a multi-use regional recreation trail along the levee system 368
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on the western and southern sides of the project site; Class 2 bike lanes along Jefferson Boulevard, Southport Parkway, and collector roads within the project site; and pedestrian connectors along selected local streets. The Project would also include a comprehensive system of arterial and collector streets, consistent with the City’s General Plan Mobility Element. Jefferson Boulevard would be expanded to four lanes from the northern edge of the project site to the intersection with Southport Parkway in the village core; it would transition to two lanes south of that point. Jefferson Boulevard would cross the proposed lake on a new bridge near the village core. Jefferson Boulevard would be built as a parkway, with a landscaped median, standard street lighting and curbs, gutters, sidewalks, landscaping and bike lanes on each side. This would recognize the existing location of Southport Parkway, located west of Jefferson Boulevard and provide a connection with Village Parkway, located east of Jefferson Boulevard. The project materials, including master design guidelines, can be found on the City’s website at Yarbrough Master Plan | City of West Sacramento
On August 15, 2024, the Planning Commission held a continued public hearing for the Phase I Vesting Tentative Subdivision Map (VTSM) and the Development Agreement amendments. Following a public hearing, the Planning Commission voted unanimously to adopt Resolution 24-3PC (See Attachment 1), recommending that the City Council approve Ordinance 24-11 approving the amendments to the DA subject to the conditions and findings.

ANALYSIS
In accordance with Section 17.43.060.D and Government Code Section 65867.5, approval of a Development Agreement shall be by ordinance, with the Planning Commission making an advisory recommendation to the City Council. The City Council, after a duly noticed public hearing, acts on the Development Agreement amendments via a first and second reading of the ordinance. Over the course of the previous several years, development of the project has been delayed for a variety of reasons, including disruptions to work schedules and supply chain interruptions caused by the COVID-19 pandemic along with City projects designed for flood mitigation. During this period, the developer has made efforts to advance the project where feasible. The developer's efforts have included working with City staff to complete Development Agreement’s provisions to adjust the project to the mutual benefit of all parties, payment of fees, etc. However, because of these delays, the Developer and the City wish to amend the Development Agreement (DA) to enable the parties to effectuate the project build out over time, update the DA to reflect current conditions in the City to best serve the respective needs of the parties, and add new sections and exhibits to ensure the project is providing necessary improvements proportionate with the proposed development. The amended and restated development agreement (redlined) can be found in Attachment 2.

DA Extension
The current DA expires on July 18, 2025. The proposed amended and restated DA (the “ARDA”) would extend the existing DA term for a twelve-year period, with an additional five-year extension based on development of at least 50% or 1,500 residential units in the project has occurred and all improvements and infrastructure associated with those units are constructed and accepted by the City. Since the project is intended to be completed in four phases, staff is projecting needing the ARDA to be in place for at least that period of time to see full build out.

Jefferson Boulevard Improvements
The Yarbrough Project is obligated to widen Jefferson Boulevard from Marshall Road to the project. The original obligation in the DA included improvements that the Landowner was obligated to complete prior to the development of the 1,501st residential unit in the Southport Area beyond those identified as existing plus approved. The ARDA provides more detail on the timing and funding obligation for the Jefferson Boulevard improvements including expanding widening and improvements north to Linden Road (as opposed to Marshall Road) and accelerating the completion of construction. The amendment is summarized below:
 Jefferson Blvd. cross sections to be depicted on the First Tentative Map in Phase I with City Engineer approval. The full street improvements on Jefferson Blvd. from Linden Road to the Project (Southport Parkway) to be built (street widening, sidewalks, bike lanes, and landscaping).  The Yarbrough project may utilize $10 million (+/-) in transportation fee credits from the first 548-unit Tentative Map towards improvement costs.
 A commitment $2.8 million in fee credits originally from the South River Road Bridge commitment per DA to be utilized for Jefferson Blvd. improvement costs.
 The initial contribution of $2.4 million (+/-) designated for the Enhanced Transit/Mobility System shall be credited to the improvements on Jefferson Boulevard in Phase I.  Jefferson Blvd. improvements to be started upon initial construction of subdivision improvements in first small lot final map in Phase I and completed at the 400th final home inspection in Phase I.  Jefferson Blvd. improvements from Southport Parkway to the southernmost project boundary will be accepted by the City Council at the time the project takes access to Jefferson Blvd. south of the 369
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Jefferson/Main Drain Canal crossing. (see Attachment 5 – Errata Memo) Fire Station #42 and Public Safety Financing
Yarbrough is obligated to advance finance design and construction of a new fire station within the project to replace the outdated Station 42 currently located at Davis and Gregory, in accordance with the “Comprehensive Financing Agreement” required to be completed prior to approval of the first small lot final map for the Project (See Sec.

14.2.1 of the proposed ARDA). As proposed in the Development Agreement Amendment, the applicant will fund the design for the new Fire Station #42 upon the approval of the first small lot final map in Phase I. The Landowner shall dedicate property to the City for the purpose of a planned fire station within the project, in accordance with the final Comprehensive Development Phasing Plan and Comprehensive Financing Agreement (the “PFFP”) and the Southport Fire Response Study. The new fire station is proposed to be constructed on Parcel 8 in the Phase I VTSM. The applicant is required to provide the new fire station site with sewer, water and other utilities as a condition of approval and a provision of the Development Agreement, prior to approval of the first final map.

The original Yarbrough Development Agreement included language that would have required relocated Fire Station #42 to include a room within the fire station that could be used by the police. The Yarbrough EIR did not require this as mitigation for any identified impact, having concluded that payment of the City’s Police Facilities Development Impact Fee mitigated potential impacts to less than significant (See DEIR, Impact US-2). The ARDA does modify the original DA by removing the requirement that the planned fire station also include space for this “police annex”. The Project is required to pay development impact fees to the City to cover necessary public service facility improvements. The ARDA also adds an additional requirement - the Landowner will now be required to participate in the formation of a public safety Community Financing District (CFD), which will fund fire and police personnel, equipment, and maintenance costs.

REQUIRED FINDINGS AND ANALYSIS:

In accordance with Section 17.43.070 of the Zoning Code, the City Council, and the Planning Commission as an advisory recommendation, must make the following finding:

1. That a proposed Development Agreement and its provisions are consistent with the General Plan and any applicable specific plan to approve a Development Agreement.

Analysis: The proposed amendments to the Development Agreement align with the policies of the General Plan, and provides for the timing, responsibility, and scope of both public and private improvements. In addition, the provision of additional housing units, including those as deed-restricted affordable units, is consistent with the goals and objectives of the Housing Element of the General Plan. Transportation improvements, including those associated with Southport/Village Parkway, Jefferson Boulevard, Bevan Road and Burrows Avenue, will improve connectivity and ensure safe mobility alternatives for those living in the Southport area. As conditioned, this finding can be made in the affirmative.

2. In addition, the proposed Development Agreement must be consistent with the provisions of Government Code Sections 65864 through 65869.5.

Analysis: A development agreement is a legally binding contract between a local government and a property owner or developer. It establishes the terms and conditions under which a development project will proceed.

In California, development agreements are governed by Government Code Sections 65864 through 65869.5.

The ARDA and the process by which it is being considered by the City and the applicant is consistent with the applicable State statutes. Finding 2 can be made in the affirmative.

General Plan Consistency
Development Agreement amendments are consistent with Land Use (LU) Goal LU-3.11 in the City of West Sacramento’s General Plan 2035, Southport Development, which is guided by the following principles:
 Concentrate community commercial, high-density residential and public facilities uses in nodes along major and minor arterials.
 The Yarbrough project strategically positions medium-density residential units along key transportation corridors, such as the provision of the affordable housing site along Jefferson Boulevard, just south of the relocated Fire Station #42. This enhances accessibility and supports the efficient use of infrastructure.

The project’s focus on a mix of uses ensures that public facilities are easily accessible to residents, promoting a vibrant and integrated community hub.
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 Emphasize a mixture of residential types and densities, while concentrating on homeownership as a general goal.
 The project includes a diverse range of residential options, from a range in densities of single-family homes to medium-density multi-family developments. This variety caters to different demographics, including families, young professionals, and seniors. However, most Yarbrough products are ownership singlefamily residential units. By promoting homeownership, the Yarbrough project aims to foster a sense of stability and investment in the community. The mixture of housing types also helps in creating an inclusive community that accommodates a wide range of income levels and lifestyles.  Ensure that ample buffers are established between incompatible land uses.  The project design includes thoughtful planning of buffer zones to mitigate potential conflicts between different land uses, such as the buffers planned along the Bevan Road frontage that would provide a greater distance between the medium-density Yarbrough area from the rural residential areas to the north of the project. In addition, residential neighborhoods enjoy green spaces and landscaped buffers, ensuring that the quality of life for residents is not compromised by noise or traffic from transportation corridors.

These buffers also contribute to the aesthetic appeal of the community and provide recreational opportunities for residents.

Environmental Considerations
The project was approved by the City Council in June 2008, which included certification of an Environmental Impact Report (EIR) to satisfy requirements of the California Environmental Quality Act (CEQA). An EIR was prepared by the City of West Sacramento, as lead agency, pursuant to CEQA (Public Resources Code 21000 et seq.); the State CEQA Guidelines (California Code of Regulations 15000 et seq.), as amended; and the City’s environmental thresholds of significance. CEQA requires that all state and local government agencies consider the environmental consequences of projects over which they have discretionary authority. Approval of the proposed project, general plan amendment, and rezoning constitutes a project under CEQA. The project includes the amendments to the Development Agreement.

The document is intended to be both a program and project EIR, pursuant to State CEQA Guidelines Sections 15161 and 15168. For the requested actions on the DA amendments, the Council will consider making findings pursuant to CEQA that the previously certified EIR remains adequate given that the project remains substantially unchanged from its original approval pursuant to Public Resources Code section 21166 and CEQA Guidelines Section 15162.

The potential environmental impacts that would result from implementation of the proposed project are summarized in the EIR. In many cases, impacts are less than significant. To the extent feasible, the City has incorporated mitigation measures into the proposed project to avoid or reduce impacts. Those impacts that cannot be mitigated to a less-than-significant level would remain significant and unavoidable. The mitigation measures can be found in the Summary of Impacts and Mitigation Measures, Yarbrough General Plan Amendment and Rezoning Project, Table ES-1.

For any new or additional environmental review to be necessary, the City must have substantial evidence of new or more severe environmental effects pursuant to CEQA Guidelines Section 15162. Given that the project has remained substantially the same to date, this finding cannot be made. In Attachment 7 (City Attorney CEQA Memo) of the staff report associated with the Goddard Appeal of the Planning Commission’s approval of the Yarbrough Phase I VTSM, the City Attorney provided a CEQA analysis that is also applicable to this proposed ARDA action. As explained in the memo, no additional environmental review is required.

It should be noted that the landowner has completed agricultural land mitigation through the Yolo Land Trust and biological mitigation through the Yolo Habitat Conservancy. All other applicable mitigation measures remain in place from the EIR.

Commission Recommendations
On August 15, 2024, the Planning Commission held a continued public hearing for the Phase I Vesting Tentative Subdivision Map (VTSM) and the Development Agreement amendments. Following a public hearing, the Planning Commission voted unanimously to adopt Resolution 24-3PC, thereby recommending the City Council approve Ordinance 24-11 approving the amendments to the DA subject to the conditions and findings. 371
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Strategic Plan Integration
The recommended item supports the Council’s 2022 Strategic Plan Policy Agenda Goal of the Southport Framework Plan Refinement as the Framework Plan was developed to provide “…an overall vision and guide for Southport as it develops.” This project would contribute to providing more housing variety, amenities to the area, and mixed-use opportunities as well as sustainable efforts associated with the master plan.

Alternatives
The City Council’s primary alternatives are summarized below.

1. Conduct the public hearing.

2. Find that the required findings for approval of the DA cannot be made for specific reasons articulated and deny the approval of the DA amendments.

3. Find that the CEQA analysis is not the appropriate level of environmental review and direct staff to perform additional environmental analysis (specify impacts to be addressed) prior to City Council’s consideration of the request.

4. Continue the item to a future date and request that additional information be provided at that time.

Alternative 1 is staff’s recommendation. While staff believes the analysis presented in this report is correct, staff is prepared to effectuate Alternatives 2 or 3 or any of the options presented by staff at the City Council’s direction.

Staff is prepared to implement Alternative 4 at the Council’s direction.

Coordination and Review
This report was written and reviewed in coordination with the Planning, Development Engineering and Transportation and Mobility Divisions of the Community Development Department, Finance Department, Fire Department, Parks and Recreation Department, and the City Attorney’s office.

Budget/Cost Impact
The applicant is paying for staff’s review of the project through a reimbursement agreement.

ATTACHMENTS
1) Resolution 24-3PC
2) Ordinance 24-11, Findings, and Amended and Restated Development Agreement (ARDA) 3) Yarbrough Development Agreement
4) Summary List of DA Amendments
5) Errata Memo- Amendments to Exhibit J
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RESOLUTION 24-3PC

A RESOLUTION OF THE PLANNING COMMISSION

OF THE CITY OF WEST SACRAMENTO

RECOMMENDING CITY COUNCIL APPROVAL OF THE YARBROUGH

DEVELOPMENT AGREEMENT AMENDMENTS
WHEREAS, on July 18, 2024, the West Sacramento Planning Commission opened a public hearing on the Vesting Tentative Subdivision Map and Development Agreement Amendments; and
WHEREAS, the Planning Commission voted to continue the public hearing to the next regular meeting on August 1, 2024; and
WHEREAS, the Planning Commission voted to open the public hearing and take public comments on the Vesting Tentative Subdivision Map and Development Agreement Amendments; and
WHEREAS, the Planning Commission voted to continue the public hearing to the next regular meeting on August 15, 2024; and
WHEREAS, the Development Agreement for the Yarbrough Project is being amended based on negotiations with ASB Southport II LLC. and the City of West Sacramento; and
WHEREAS, the Planning Commission has found that the Development Agreement Amendments are in accordance with the conditions and findings as identified in the agenda report and Ordinance 24-11, and
WHEREAS, the Planning Commission has duly considered all information before them; and
NOW, THEREFORE, BE IT RESOLVED by the Planning Commission recommends that the City Council take the following actions:

Approve the Development Agreement (DA) Amendments for the Yarbrough Project according to Ordinance 24-11, via Resolution 24-3PC as recommended by the Planning Commission.

PASSED AND ADOPTED by the Planning Commission of the City of West Sacramento this 15th of August 2024, by the following vote:

AYES: Squires, Sablan, Olivares, Delgado, Jackson, Linker, Wong NOES: None
ABSTAIN: None
ABSENT: None
Matthew Delgado, Planning Commission
Chairperson
Docusign Envelope ID: 33C59163-4823-4276-9222-BCDCAEADCF4B 373
ATTEST:

David W. Tilley, Secretary
Docusign Envelope ID: 33C59163-4823-4276-9222-BCDCAEADCF4B 374

FINDINGS
REQUIRED FINDINGS AND ANALYSIS:

In accordance with Section 17.43.070 of the Zoning Code, the City Council, and the Planning Commission as an advisory recommendation, must make the following finding:

1. That a proposed Development Agreement and its provisions are consistent with the General Plan and any applicable specific plan to approve a Development Agreement.

Analysis: The proposed amendments to the Development Agreement align with the policies of the General Plan, and provides for the timing, responsibility, and scope of both public and private improvements. In addition, the provision of additional housing units, including those as deed-restricted affordable units, is consistent with the goals and objectives of the Housing Element of the General Plan. Transportation improvements, including those associated with Southport/Village Parkway, Jefferson Boulevard, Bevan Road and Burrows Avenue, will improve connectivity and ensure safe mobility alternatives for those living in the Southport area.

As conditioned, this finding can be made in the affirmative.

2. In addition, the proposed Development Agreement must be consistent with the provisions of Government Code Sections 65864 through 65869.5.

Analysis: A development agreement is a legally binding contract between a local government and a property owner or developer. It establishes the terms and conditions under which a development project will proceed. In California, development agreements are governed by Government Code Sections 65864 through 65869.5. The proposed DA and the process by which it is being considered by the City and the applicant is consistent with the applicable State statutes.

Finding 2 can be made in the affirmative.

Docusign Envelope ID: 33C59163-4823-4276-9222-BCDCAEADCF4B 375
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ORDINANCE 24-11

AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF WEST SACRAMENTO

APPROVING AMENDMENTS TO

DEVELOPMENT AGREEMENT (AMENDED AND RESTATED DEVELOPMENT

AGREEMENT) BY AND BETWEEN THE CITY OF WEST SACRAMENTO AND ASB

SOUTHPORT II LLC, A CALIFORNIA LIMITED LIABILITY COMPANY, AS LANDOWNER

RELATIVE TO YARBROUGH
The City Council of the City of West Sacramento does ordain as follows:

Section 1. Purpose And Authority. The purpose of this Ordinance is to amend that certain Development Agreement by and Between the City of West Sacramento and ASB Southport II LLC, A California Limited Liability Company, as Landowner Relative to Yarbrough dated June 18, 2008 (“Development Agreement”).

Section 2. Amendments. The City and ASB Southport II LLC, successor to the developer parties to the Development Agreement, hereby amend the Development Agreement according to the terms and provisions of the Amendments, attached hereto as Exhibit 1.

Section 3. Severability. If any provision of this Ordinance, or the application of any such provision to any person or circumstance shall be held invalid, the remainder of this Ordinance, to the extent it can be given effect, or the application of those provisions to persons or circumstances other than those as to which it is held invalid, shall not be affected thereby, and to this end the provisions of this chapter are severable.

Section 4. Effective Date and Publication. This Ordinance shall take effect 30 days after its adoption, and pursuant to Resolution 99-46 was published in summary format prior to adoption, and a summary will be published within 15 days after adoption in a paper of general circulation published and circulated within the City of West Sacramento.

PASSED AND ADOPTED by the City Council of the City of West Sacramento this __ day of ___________ 2024, by the following votes:

AYES:

NOES:

ABSENT:

ABSTAIN:
__________________________________
Martha Guerrero, Mayor
ATTEST: APPROVED AS TO FORM:
__________________________________ __________________________________ Jennifer Cusmir, City Clerk Jeffrey Mitchell, City Attorney CODIFY ___ UNCODIFY _X_
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Attachment A

AMENDMENTS TO

DEVELOPMENT AGREEMENT (AMENDED AND RESTATED DEVELOPMENT

AGREEMENT) BY AND BETWEEN THE CITY OF WEST SACRAMENTO AND ASB

SOUTHPORT II LLC, A CALIFORNIA LIMITED LIABILITY COMPANY, AS LANDOWNER

RELATIVE TO YARBROUGH
AMENDMENTS to the DEVELOPMENT AGREEMENT BY AND BETWEEN THE CITY OF WEST

SACRAMENTO AND ASB SOUTHPORT II LLC, A CALIFORNIA LIMITED LIABILITY COMPANY, AS LANDOWNER RELATIVE TO YARBROUGH dated June 18, 2008, is entered into by and between ASB SOUTHPORT II LLC, A CALIFORNIA LIMITED LIABILITY COMPANY (“Developer”) and the City of West Sacramento, a municipal corporation (“City”) is entered pursuant to the authority of Government Code Sections 65864 through 65869.5 and shall be deemed to have an Effective Date of _________________, 2024.

RECITALS
These Amendments are predicated upon the following facts and findings:

A. The City and Developer entered into a Development Agreement on June 18, 2008 (“Development Agreement”) relative to the Yarbrough project (the “Project”) as approved on that date by City Ordinance 08-04, a memorandum of which was recorded by the Yolo County Recorder on July 26, 2008.

B. The Project encompasses approximately 713 acres and is located in the southwest village of Southport and generally bound by the Deep-Water Ship Channel (DWSC) to the west, the Bridgeway Lakes communities to the north, agricultural land immediately to the east, and the southeast village of Southport beyond the former Yolo Shortline Railroad corridor. The project will support a balanced mixed of land uses including approximately 3,004 dwelling units, 150,000 square feet of commercial space, an 18-hole public golf course and a 55.9-acre interconnected lake park and canal system.

C. The ownership is now solely comprising of one party, ASB Southport II LLC, A California Limited Liability Company.

D. Section 22.1 of the Development Agreement provides for amendments to such Agreement pursuant to state law and the West Sacramento Municipal Code.

E. Over the course of the last several years, the real estate market has suffered, and the Project has been delayed for a variety of reasons, including disruptions to work schedules and supply chain interruptions caused by the COVID-19 pandemic and projects to mitigate flooding in the City.

F. As a result of these delays, Developer and the City wish to amend the Development Agreement specifically targeting sections and exhibits that are outdated or no longer applicable to enable the Parties to evaluate the Project’s status, detail substantive changes to the Project necessary to best serve the respective needs of the Parties moving forward and establish a timeframe extension timeline for the Project to fully build out. 377
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G. To accommodate these evaluations, the Parties provided amendments to various sections of the Development Agreement, noted in redlines, to effectuate the measures described in Recital F.

H. On July 18, 2024, the Planning Commission conducted a public hearing to consider DA Amendments and recommended continuing the public hearing to a date certain.

I. On August 1, 2024, the Planning Commission conducted a public hearing on DA Amendments and recommended approval to the City Council.

J. On ________, 2024, the City Council conducted a public hearing on this Amendment and voted to approve the amendment by adoption of Ordinance 24-11.

K. The Developer and the City both desire to amend redline sections in the Amended and Restated Development Agreement (ARDA), based on the conditions contained in this Amendment.

NOW THEREFORE, the parties agree to amend the Development Agreement as follows:

1. Amendments to the following: Section 1.15 (General Plan); 1.20 (Landowner); Section 5.2 (Term); Section 5.2.2 (Extension); Section 1.31ii and iii (Project Approvals); Section 11 (Affordable Housing Agreement); Section 13.1 (Drainage Master Plan and Drainage Impact Fee Study); Section 13.2 (Water Master Plan); Section 13.3 (Sewer Master Plan); Section

13.4 (Traffic); Section 13.4.6 (South River Road Bridge); Section 14.2.2 (Advance Funding for Traffic Improvements); Section 15 (Levee Improvements), Section 16.1 (Fire and Police); Section 16.3 (Enhanced Transit System); Section 17 (Tower Court Fee Credits); Section 19.2 (Funding for Maintenance and Public Services); Section 26.21 (Time of the Essence); Exhibit E (Golf Course and Open Space Guidelines); Exhibit F (Master Affordable Housing Agreement Requirements); Exhibit H (South River Road Bridge); Exhibit I (Traffic Impact Fee Study Requirements); Exhibit J (Traffic Improvements and Funding Commitments); Exhibit M (Comprehensive Financing Agreement); and
“Following the expiration of the Term, this Agreement shall be deemed terminated and of no further force and effect, except as described in Section 26.1.”

2. Remainder of Provisions of Development Agreement. Except as expressly provided herein, nothing in this Amendment shall be deemed to waive or modify any of the other provisions of the Development Agreement.

3. Interpretation of Conflicts. In the event that any provisions of this Amendment conflict with the provisions of the Development Agreement, the terms of this Amendment shall prevail.

4. Memorandum of First Amendment. Contemporaneously herewith, the City and Developer shall execute a notarized Memorandum of Amendment in the form attached hereto as Exhibit A, which Memorandum shall be recorded with the Yolo County Recorder. 378
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IN WITNESS WHEREOF, this Amendment has been executed by the parties on the day and year first written above.

CITY OF WEST SACRAMENTO ASB SOUTHPORT II LLC
A municipal corporation A California Limited Liability Company By: ______________________ By: _________________________ Martha Guerrero, Mayor Debra Russo, Manager
By: _________________________
David Stroud, Manager

ATTEST:

By: ______________________
Jennifer Cusmir, City Clerk
APPROVED AS TO FORM:

KRONICK, MOSKOVITZ, TIEDMAN & GIRARD
A professional corporation
By: _______________________
Jeffrey Mitchell, City Attorney
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EXHIBIT A
Memorandum of Agreement
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RECORDING REQUESTED BY AND WHEN
RECORDED RETURN TO:

City of West Sacramento
1110 West Capitol Avenue
West Sacramento, CA 95691
NO RECORDING FEE REQUIRED PURSUANT TO GOVT CODE § 27383 SPACE ABOVE LINE FOR RECORDER’S USE ONLY

MEMORANDUM OF AMENDMENTS TO

DEVELOPMENT AGREEMENT (AMENDED AND RESTATED DEVELOPMENT

AGREEMENT) BY AND BETWEEN THE CITY OF WEST SACRAMENTO AND ASB

SOUTHPORT II LLC, A CALIFORNIA LIMITED LIABILITY COMPANY, AS LANDOWNER

RELATIVE TO YARBROUGH
THIS MEMORANDUM OF AMENDMENT TO DEVELOPMENT AGREEMENT is made this ___ day of ______, 2024, by and between the CITY OF WEST SACRAMENTO ("City") and ASB SOUTHPORT II LLC ("Developer").

City and Developer are parties to that certain "DEVELOPMENT AGREEMENT BY AND

BETWEEN THE CITY OF WEST SACRAMENTO AND ASB SOUTHPORT II LLC, A CALIFORNIA LIMITED LIABILITY COMPANY, dated June 18, 2008. The City and Developer are also parties to that certain “AMENDMENT TO DEVELOPMENT AGREEMENT BY AND

BETWEEN THE CITY OF WEST SACRAMENTO AND ASB SOUTHPORT II LLC, A

CALIFORNIA LIMITED LIABILITY COMPANY, AS LANDOWNER RELATIVE TO YARBROUGH,” (“Amendment”) dated ________, 2024. The terms and conditions of the Amendment are incorporated herein by this reference. The Development Agreement as amended by the Amendment controls the development of the certain real property, including improvements thereto, situated in the County of Yolo, State of California, and described as follows:

SEE EXHIBIT “1”
Dated: ________________________

THE CITY OF WEST SACRAMENTO
By: ___________________________
Martha Guerrero, Mayor
Attest: ________________________
Jennifer Cusmir, City Clerk
Dated: ____________________________

ASB SOUTHPORT II LLC
By: _______________________________
Debra Russo, Manager
By: _______________________________
David Stroud, Manager

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Findings
REQUIRED FINDINGS AND ANALYSIS:

In accordance with Section 17.43.070 of the Zoning Code, the City Council, and the Planning Commission as an advisory recommendation, must make the following finding:

1. That a proposed Development Agreement and its provisions are consistent with the General Plan and any applicable specific plan to approve a Development Agreement.

Analysis: The proposed amendments to the Development Agreement align with the policies of the General Plan, and provides for the timing, responsibility, and scope of both public and private improvements. In addition, the provision of additional housing units, including those as deed-restricted affordable units, is consistent with the goals and objectives of the Housing Element of the General Plan. Transportation improvements, including those associated with Southport/Village Parkway, Jefferson Boulevard, Bevan Road and Burrows Avenue, will improve connectivity and ensure safe mobility alternatives for those living in the Southport area.

As conditioned, this finding can be made in the affirmative.

2. In addition, the proposed Development Agreement must be consistent with the provisions of Government Code Sections 65864 through 65869.5.

Analysis: A development agreement is a legally binding contract between a local government and a property owner or developer. It establishes the terms and conditions under which a development project will proceed. In California, development agreements are governed by Government Code Sections 65864 through 65869.5. The proposed DA and the process by which it is being considered by the City and the applicant is consistent with the applicable State statutes.

Finding 2 can be made in the affirmative.
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Exhibit 1
Development Agreement Redlines
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OFFICIAL BUSINESS
Document entitled to free recording
Government Code Section 6103

RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO:

City of West Sacramento
1110 West Capitol Avenue
West Sacramento, CA 95691
Attn: City Clerk
(SPACE ABOVE THIS LINE RESERVED FOR
RECORDER’S USE)

CHANGES ARE NOTED IN REDLINES

AMENDED AND RESTATED

DEVELOPMENT AGREEMENT

BY AND BETWEEN

THE CITY OF WEST SACRAMENTO
AND

ASB SOUTHPORT II LLC, A CALIFORNIA LIMITED LIABILITY COMPANY, AND THE BILLY G. AND LOUISE YARBROUGH TRUST, A REVOCABLE FAMILY TRUST, AS LANDOWNERS

RELATIVE TO YARBROUGH
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TABLE OF CONTENTS
Page
RECITALS ................................................................................................................................. 1

1. AUTHORIZATION............................................................................................... 1

2. PUBLIC HEARING.............................................................................................. 1

3. ENVIRONMENTAL REVIEW............................................................................... 1

4. NEED FOR SERVICES AND FACILITIES........................................................... 1

5. CONTRIBUTION TO COSTS OF FACILITIES AND SERVICES ......................... 1

6. PUBLIC BENEFITS............................................................................................. 2

7. LANDOWNER ASSURANCES............................................................................ 2

8. CONSISTENCY WITH GENERAL PLAN AND SOUTHPORT
FRAMEWORK PLAN .......................................................................................... 2 DEFINITIONS ............................................................................................................................ 2

1. DEFINITIONS ..................................................................................................... 2

1.1. Adopting Ordinance ................................................................................. 2

1.2. Agreement............................................................................................... 3

1.3. CEQA...................................................................................................... 3

1.4. City .......................................................................................................... 3

1.5. City Manager ........................................................................................... 3

1.6. Clubhouse ............................................................................................... 3

1.7. Collective Standards................................................................................ 3

1.8. Designated Trail System.......................................................................... 3

1.9. Development Agreement Law.................................................................. 3

1.10. Effective Date .......................................................................................... 3

1.11. EIR .......................................................................................................... 4

1.12. Existing Land Use Regulations ................................................................ 4

1.13. Existing Plus Approved............................................................................ 4

1.14. Fee.......................................................................................................... 4

1.15. General Plan............................................................................................ 4

1.16. Grand Meadow........................................................................................ 4

1.17. Improvement........................................................................................... 4

1.18. Infrastructure............................................................................................ 4

1.19. Lake Park ................................................................................................ 4 385
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TABLE OF CONTENTS
(Continued)
Page

1.20. Landowner .............................................................................................. 5

1.21. Law ......................................................................................................... 5

1.22. Master Affordable Housing Agreement .................................................... 5

1.23. Mitigation Measures ................................................................................ 5

1.24. Mitigation Monitoring and Reporting Program .......................................... 5

1.25. Neighborhood Park.................................................................................. 5

1.26. Non-Project Specific ................................................................................ 5

1.27. Not a Part Lands ..................................................................................... 5

1.28. Planning Commission.............................................................................. 5

1.29. Pocket Park............................................................................................. 5

1.30. Project..................................................................................................... 5

1.31. Project Approvals .................................................................................... 6

1.32. Property .................................................................................................. 6

1.33. Pro Shop ................................................................................................. 6

1.34. Public Works and Community Development Director or Director.............. 6

1.35. Reserved Powers .................................................................................... 6

1.36. Southport Area ........................................................................................ 6

1.37. Southport Framework Plan ...................................................................... 6

1.38. Successor or Successor in Interest.......................................................... 7

1.39. Vested Right............................................................................................ 7

1.40. Yarbrough Design Guidelines .................................................................. 7

1.41. Yarbrough Inclusionary Units................................................................... 7 AGREEMENT ............................................................................................................................ 7

1. Incorporation of Recitals...................................................................................... 7

2. Description of Property........................................................................................ 7

3. Relationship of City and Landowner.................................................................... 7

4. Representations, Warranties and Acknowledgments........................................... 7

4.1 Title to Property....................................................................................... 8

4.2 Authority.................................................................................................. 8

4.3 Brokers.................................................................................................... 8

4.4 Procedures and Requirements ................................................................ 8 386
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TABLE OF CONTENTS
(Continued)
Page

5. Effective Date and Term...................................................................................... 8

5.1 Effective Date .......................................................................................... 8

5.2 Term........................................................................................................ 8

5.3 Automatic Termination Upon Completion and Sale of Individual Lots ......................................................................................................... 8

5.4 Termination by Mutual Consent ............................................................... 9

5.5 Effect of Termination................................................................................ 9

6. Project Approvals and Vested Rights................................................................... 9

6.1 Project Approvals..................................................................................... 9

6.2 Reserved Powers Relating to Project Entitlements and Approvals ........... 9

6.3 Meet and Confer....................................................................................11

6.4 Further Reviews ....................................................................................11

6.5 Referendum...........................................................................................11

7. Subdivision Maps ..............................................................................................11

7.1 Term of Tentative Subdivision Maps ......................................................11

7.2 Vesting Tentative Maps..........................................................................11

8. Applicable Rules, Regulations, Fees and Official Policies..................................12

8.1 Rules Regarding Design and Construction.............................................12

8.2 Uniform Codes Applicable......................................................................12

8.3 Fees, Dedications, Assessments and Taxes ..........................................12

9. Payment and Performance Bonds.....................................................................13

10. Use of Property ................................................................................................. 13

10.1 Right to Develop ....................................................................................13

10.2 Permitted Uses ......................................................................................14

10.3 Design Guidelines..................................................................................14

11. Master Affordable Housing Agreement..............................................................14

12. Recreational Uses.............................................................................................15

12.1 Golf Course ...........................................................................................15

12.2 Parks.....................................................................................................15

13. Public Improvements.........................................................................................18

13.1 Drainage Master Plan and Drainage Impact Fee Study..........................18

13.2 Water Master Plan.................................................................................19 387
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(Continued)
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13.3 Sewer Master Plan ................................................................................20

13.4 Traffic ....................................................................................................21

14. Phasing and Financing of Improvements and Infrastructure...............................23

14.1 Phasing ................................................................................................. 23

14.2 Financing...............................................................................................23

14.3 Reimbursement .....................................................................................24

15. Levee Improvements.........................................................................................24

16. Additional Obligations........................................................................................25

16.1 Fire and Police ......................................................................................25

16.2 School Agreement .................................................................................25

16.3 Enhanced Transit/Mobility System.........................................................26

16.4 Traffic Reduction Plan............................................................................26

16.5 Evacuation and Emergency Management Plan......................................26

17. Tower Court Fee Credits ...................................................................................27

18. Community Facilities District..............................................................................27

18.1 Financing...............................................................................................27

18.2 Costs.....................................................................................................28

19. Service District for Maintenance ........................................................................28

19.1 Formation ..............................................................................................28

19.2 Funding for Maintenance and Public Services…………………………… 28

20. Home Owners Association ................................................................................28

21. Not a Part Lands ...............................................................................................28

22. Amendment or Cancellation ..............................................................................29

22.1 Amendment by Mutual Consent.............................................................29

22.2 Insubstantial Amendments.....................................................................29

22.3 Amendment of Project Approvals...........................................................29

22.4 Limitation on Number of Units ................................................................29

23. Rights and Duties of Mortgage Lenders in Possession of Property....................29

24. Annual Review of Agreement ............................................................................30

24.1 Review Date ..........................................................................................30

24.2 Procedures ............................................................................................30 388
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24.3 Fee for Annual Review ..........................................................................30 389
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(Continued)
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25. Default ..............................................................................................................30

25.1 Default...................................................................................................30

25.2 Notice ....................................................................................................30

25.3 Cure ......................................................................................................30

25.4 Remedies ..............................................................................................30

25.5 Additional Procedures and Remedies ....................................................30

25.6 Building Permits.....................................................................................31

25.7 Waiver of Damages ...............................................................................31

25.8 Rescission .............................................................................................31

26. Insurance and Indemnity ...................................................................................31

26.1 Indemnification, Defense and Hold Harmless.........................................31

26.2 Insurance...............................................................................................32

27. Binding Effect on Successors ............................................................................32

27.1 Assignment............................................................................................32

27.2 Subsequent Assignments ......................................................................33

27.3 Runs with the Land................................................................................33

28. Miscellaneous ...................................................................................................33

28.1 Prevailing Wages...................................................................................33

28.2 Estoppel Certificate................................................................................33

28.3 Recordation ...........................................................................................33

28.4 Notices ..................................................................................................34

28.5 References to Municipal Code ...............................................................34

28.6 Third Party Beneficiaries ........................................................................34

28.7 Force Majeure .......................................................................................34

28.8 Bankruptcy.............................................................................................34

28.9 Attorneys’ Fees and Costs in Legal Actions By Parties to the Agreement.............................................................................................34

28.10 Attorneys’ Fees and Costs in Legal Actions By Third Parties to the Agreement.............................................................................................35

28.11 Liability of City Officials ..........................................................................35

28.12 Delegation .............................................................................................35

28.13 Severability ............................................................................................35 390
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(Continued)
Page

28.14 Integration..............................................................................................35

28.15 Counterparts..........................................................................................35

28.16 Interpretation..........................................................................................35

28.17 Inconsistency.........................................................................................35

28.18 Incorporation..........................................................................................35

28.19 Compliance with Laws ...........................................................................35

28.20 Applicable Law and Venue.....................................................................35

28.21 Time of the Essence ..............................................................................35 391
1 873763.17

AMENDED AND RESTATED

DEVELOPMENT AGREEMENT

RELATIVE TO YARBROUGH
This Yarbrough Development Agreement (“Agreement”) is made and entered into between the CITY OF WEST SACRAMENTO, a municipal corporation (“City”), and ASB Southport II LLC, a California limited liability company and the Billy G. and Louise Yarbrough Trust, a revocable family trust, (collectively, the “Landowner”). City and Landowner are hereinafter collectively referred to as the “Parties” and singularly as “Party”.

RECITALS

1. Authorization. To strengthen the public planning process, encourage private participation in comprehensive planning and reduce the economic risk of development, the Legislature of the State of California adopted Government Code section 65864 et seq. (the “Development Agreement Statute”), which authorizes the City and any person having a legal or equitable interest in the real property to enter into a development agreement, establishing certain development rights in the Property, which is the subject of the development project application.

2. Public Hearing. The Planning Commission of the City of West Sacramento, serving as the City’s planning agency for purposes of development agreement review pursuant to Government Code section 65867, considered this Agreement and recommended approval of this Agreement to the City Council.

3. Environmental Review. The City Council certified as adequate and complete, the Environmental Impact Report (“EIR”) for the Project in Resolution 08-40. Mitigation Measures were identified in the EIR. The City Council has adopted Mitigation Measures, as reflected in the CEQA findings of fact adopted by the Council, and in the City’s Mitigation Monitoring and Reporting Program in City Resolution 08-4. The Mitigation Measures adopted by the City are incorporated into the Project and, in part, into the terms and conditions of this Agreement, as reflected by the CEQA findings of fact adopted by the City Council concurrently with this Agreement.

4. Need for Services and Facilities. Development of the Property will result in a need for municipal services and facilities, some of which will be provided by the City to the Project, subject to the performance of Landowner’s obligations hereunder.

5. Contribution to Costs of Facilities and Services. Landowner agrees to contribute to the costs of public facilities and services as required herein to mitigate impacts on the community of the development of the Property, and City agrees to provide such public facilities and services as required herein to assure that Landowner may proceed with and complete development of the Property in accordance with the terms of this Agreement. City and Landowner recognize and agree that, but for Landowner’s contributions to mitigate the impacts arising as a result of development entitlements granted pursuant to this Agreement, City would not and could not approve the development of the Property as provided by this Agreement and that, but for City’s covenant to provide certain facilities and services for development of the Property, Landowner would not and could not commit to provide the mitigation as provided by this Agreement. City’s vesting of the right to develop the Property, as provided herein, is in reliance upon and in consideration of Landowner’s agreement to make contributions towards 392
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the cost of public improvements as herein provided to mitigate the impacts of development of the Property as development occurs and as consistent with this Agreement.

6. Public Benefits. Development of the Project will result in significant public benefits, as more fully described hereinafter, including, without limitation:

6.1. Implementation of the development goals set forth in the Southport Framework Plan;

6.2. The provision of additional recreational opportunities and the enhancement of the appearance of the Southport area;

6.3. The provision of services within walking distance to development, as well as opportunities for employment;

6.4. The provision of a mixed-use development that is a logical extension of adjacent uses;

6.5. The furtherance of the goals and objectives of the City’s affordable housing plan.

7. Landowner Assurances. In exchange for the benefits to the City in the preceding Recitals, together with the other public benefits that will result from the development of the Property, Landowner will receive by this Agreement assurance that it may proceed with the Project in accordance with the Project Approvals, and therefore, desires to enter into this Agreement.

8. Consistency with General Plan and Southport Framework Plan. Having duly examined and considered this Agreement and having held properly noticed public hearings hereon, in City Ordinance No. 08-4, the City found that this Agreement satisfies the Government Code section 65867.5 requirement of general plan consistency. The City has also found that this Agreement satisfies the project specific Southport Framework Plan, a planned development overlay, as more particularly described in City Ordinance No. 95-8.

NOW, THEREFORE, in consideration of the above Recitals and mutual promises, conditions and covenants of the Parties contained in this Agreement, and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Parties agree as follows:

DEFINITIONS

1. Definitions. In this Agreement, unless the context otherwise requires, terms have the following meaning. Capitalized terms within the Exhibits not defined below have the meaning set out in the Exhibits.

1.1. “Adopting Ordinance” means Ordinance Number 08-4, adopted by the City Council on June 18, 2008, which approves this Development Agreement as required by the Development Agreement Law.
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1.2. “Agreement” means this Development Agreement, inclusive of all exhibits attached hereto.

1.3. “CEQA” means the California Environmental Quality Act, as set forth at California Public Resources Code, Division 13, commencing at Section 21000 and the CEQA Guidelines as set forth in Title 14 of the California Code of Regulations commencing at Section 15000.

1.4. "City" means the City of West Sacramento, including its agents, officers, employees, representatives and elected and appointed officials.

1.5. "City Manager" means the City Manager of the City of West Sacramento, or his or her designee.

1.6. “Clubhouse” means the main building located at the village core. The Clubhouse is envisioned to be a two-story, approximately twenty-six thousand (26,000) square feet building containing a golf clubhouse with Pro Shop, administration offices, banquet facilities, restaurant, lounge area, and golf cart storage facility.

1.7. “Collective Standards” means: (i) the provisions of this Development Agreement; (ii) the Project Approvals; (iii) land use entitlement and approvals to the Project and the Property that may be granted following the Effective Date; and (iv) Existing Land Use Regulations, except to the extent that they are collectively or individually subject to Reserved Powers.

1.8. “Designated Trail System” means a recreational system that includes bicycle trails, pedestrian trails, equestrian trials, and an equestrian staging area.

1.9. “Development Agreement Law‖” means Government Code section 65864 et seq. and the procedures and requirements for the consideration of development agreements contained in City Resolution No. 88-111, as amended by City Council Resolution No. 96-62. In the event of a conflict, the requirements of Government Code section 65864 et seq. shall control.

1.10. “Effective Date” means that day on which the Adopting Ordinance shall be effective. The Adopting Ordinance shall be effective thirty (30) days after its adoption by the City Council, unless the Adopting Ordinance becomes subject to a qualified referendum, in which case, the Effective Date shall be the day after the referendum election, if the Adopting Ordinance is approved by a majority of the voters. Litigation filed to challenge the Adopting Ordinance or this Agreement shall not affect the Effective Date, absent a court order or judgment overturning or setting aside the Adopting Ordinance, or staying the Effective Date, or remanding the Adopting Ordinance to the City. Notwithstanding the foregoing, this Agreement shall not become effective until fully executed.

1.11. “EIR” means the Draft and Final Environmental Impact Report for the “Yarbrough General Plan Amendment and Rezoning Project,” including the Mitigation Measures and Mitigation Monitoring and Reporting Plan (State Clearinghouse No. 2005072101).

1.12. “Existing Land Use Regulations” means the ordinances, resolutions and regulations applicable to the Project, to the extent they govern the permitted uses of land, and the density and intensity of land use, as set forth in the following plans and ordinances as they exist on the Effective Date:
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(i) The West Sacramento General Plan;
(ii) The Southport Framework Plan; and
(iii) The West Sacramento Zoning Code.

1.13. “Existing Plus Approved” means residential development identified in the City’s traffic model base updated in January 2008 and includes existing residential units and residential tentative maps which were approved as of December 31, 2007. A copy of the updated traffic model base is on file with the City.

1.14. “Fee” means all charges, expenses, costs, monetary exactions and any other monetary obligations imposed on Landowner by the City, other than assessments or regular or special taxes, and shall not be limited to fees paid pursuant to this Agreement. (The term "fee" need not be capitalized in this Agreement.)

1.15. “General Plan” means the General Plan 2035 of the City including the text and maps, as approved by the City in 2004 2016, plus any other General Plan amendments approved by the City on or before the Effective Date.

1.16. “Grand Meadow” means a small meadow area, approximately two (2) to three (3) acres in area, that provides a place for concerts, festivals, and larger people-gathering events.

Typical elements include a lawn area, sitting areas, and plaza.

1.17. “Improvement” means any on-site or off-site conveyance, grant or dedication of property or property rights, non-monetary exaction, construction and/or installation of a work of public improvement, street, facility, utility, park facility or recreational amenity which is to be transferred to the City, or any other contribution of property (other than fees), imposed on Landowner by the City.

1.18. “Infrastructure” means the basic facilities, services, and installations needed for the functioning of the Improvements, the golf course and park facilities. (The term “infrastructure” need not be capitalized in this Agreement.)

1.19. “Lake Park” means a linear park that allows access to the lake water edge while connecting with a series of day use recreation nodes and landscape features with a Designated Trail System. Typical elements include par courses, small plazas with lake overlooks, informal tree groves, accent plantings, rock outcroppings, a village green, a boat ramp, and the Grand Meadow. A figure showing the general location of the Lake Park is attached hereto at Exhibit D and incorporated herein by reference.

1.20. “Landowner” means, collectively, ASB II LLC, a California limited liability company and the Billy G. and Louise Yarbrough Trust, a revocable family trust, together with any successors in interest approved by the City pursuant to this Agreement.

1.21. “Law” means the case law, ordinances, statutes, rules, regulations, or any order, decree or directive of any court or any local, regional, state or federal government agency, unless the context suggests a different meaning.
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1.22. “Master Affordable Housing Agreement” means the document between the City and Landowner that will govern the development, construction, sale and resale of the Yarbrough Inclusionary Units and will ensure compliance with the requirements of Chapter 15.40 of the City’s Municipal Code, to the extent that those requirements do not conflict with Exhibit F. The Master Affordable Housing Agreement is more particularly described in Section 11 and Exhibit F of this Agreement.

1.23. “Mitigation Measures” means the mitigation measures recommended in the EIR as modified or adopted by the City Council.

1.24. “Mitigation Monitoring and Reporting Program” means the plan for implementation of the Mitigation Measures, identified in the EIR, and adopted by the City Council.

1.25. “Neighborhood Park” means a five (5) acre park that serves the informal, daily recreation needs of nearby residents in a neighborhood. An example of an existing neighborhood park is Elkhorn Park, located in the City.

1.26. “Non-Project Specific” means rules, regulations, or laws adopted by the City that, while not applicable City-wide, apply uniformly to all properties that are similarly situated, whether by geographic location or other distinguishing circumstances.

1.27. “Not a Part Lands” means approximately 45.8 acres of land that is located in the south-central area of the Property, as shown on Figure 2-3 of the EIR and labeled “N.A.P.” The Not a Part Lands are generally surrounded by, but are not a part of, the Property.

1.28. “Planning Commission” means the City of West Sacramento Planning Commission.

1.29. “Pocket Park” means a small recreation area, tot lot or sitting area that serves the daily recreational needs of nearby residents and that is generally less than four (4) acres in area.

These areas typically include children’s play areas, sitting areas, and limited green space, but not formal play fields. An example of an existing Pocket Park is Redwood Park, located in the City.

1.30. "Project" means the physical development of the Property as described in the project description in the EIR, and as supplemented by the provisions of this Agreement, including Exhibit C. The Project consists of the development of a seven hundred and eleven (711) acre mixed use project containing three thousand and four (3,004) residential units, to be located on the Property.

1.31. “Project Approvals” means the entitlements that are the subject of this Agreement, consisting of the following land use approvals:
(i) The EIR.
(ii) The original Development Agreement (DA 07-01), as adopted on June 18, 2008 by City Ordinance No. 08-4 (the “Original Adopting Ordinance”). (iii) This Amended and Restated Development Agreement, as adopted on ____________by City Ordinance No. 24-11 (the “Amended and Restated Adopting Ordinance”) (iv) A General Plan Amendment (GPA 04-02), by City Resolution No. 08-3. 396
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(v) A Southport Framework Plan Amendment by City Ordinance No. 08-11. (vi) A Rezone, by City Ordinance No. 08-3.
(vii) The Yarbrough Design Guidelines, incorporated into the Southport Framework Plan Amendment, in Ordinance 08-11.
(viii) Additions to the Traffic Impact Fee Study, reflected in Exhibit I, and adopted by City Resolution 08-41.

1.32. “Property” means that certain real property consisting of approximately seven hundred and eleven (711) acres in the City of West Sacramento, County of Yolo, as more particularly described in Exhibit A and depicted in Exhibit B, attached hereto.

1.33. “Pro Shop” means a shop located at the golf course where green fees are paid, tee times are reserved, and golf merchandise is offered for sale or rent.

1.34. “Public Works and Community Development Director” or “Director” means the Public Works and Community Development Director of the City of West Sacramento, or his or her designee.

1.35. “Reserved Powers” means those powers explicitly reserved to the City by this Agreement pursuant to Section 6.2 of this Agreement.

1.36. “Southport Area” means that area of land located in the southern portion of the City and generally bound by the Deep Water Ship Channel on the north and west, the Sacramento River on the east and current City limits on the south.

1.37. “Southport Framework Plan” means that certain document adopted by the City in May 1995, together with any amendments as approved by the City on or before the Effective Date of this Agreement. The Southport Framework Plan is the development master plan for the Southport Area. The Southport Framework Plan is intended to be a refinement of the City’s General Plan and is intended to establish the foundation for a village-oriented, mixed use development. The Southport Framework Plan includes the Land Use Map, Design Guidelines, and Implementation Plan.

1.38. “Successor” or “Successor in Interest” means any subsequent owner that acquires all or any portion of the Property. This term shall not include private parties that acquire recorded residential lots that have been developed with residential dwellings within the Property. This term shall also mean any assignee under the form of assignment attached hereto as Exhibit N (i.e., any recognized successor in interest under this Agreement), and any subsequent assignee.

1.39. “Vested Right” means the right to proceed with the development of the Project in accordance with the terms of the Collective Standards, which Collective Standards may not be amended, modified or changed by the City except as provided by this Agreement. (The term "vested right" shall not be capitalized in this Agreement.)

1.40. “Yarbrough Design Guidelines” means the design guidelines for the Project, consisting of:
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(i) The Master Design Guidelines, as more specifically described in Section

10.3 of this Agreement; and
(ii) The additional design guideline elements listed in Exhibit E attached hereto, which shall become part of the Yarbrough Design Guidelines upon approval by the Planning Commission in accordance with Section 10.3; and (iii) Amendments to the Yarbrough Design Guidelines approved in accordance with Section 10.3.4.

1.41. “Yarbrough Inclusionary Units” means the affordable housing units required to be developed on the Property by Landowner, in accordance with this Agreement and as set forth in Exhibit F of this Agreement.

AGREEMENT

1. Incorporation of Recitals. The Preamble, the Recitals and all defined terms set forth in both are hereby incorporated into this Agreement as if set forth herein in full.

2. Description of Property. The Property, which is the subject of this Agreement, is described in Exhibit A and depicted in Exhibit B attached hereto (“Property”).

3. Relationship of City and Landowner. It is understood that this Agreement is a contract that has been negotiated and voluntarily entered into by City and Landowner and that Landowner is not an agent of City. The City and Landowner hereby renounce the existence of any form of joint venture or partnership between them, and agree that nothing contained herein or in any document executed in connection herewith shall be construed as making the City and Landowner joint venturers or partners.

4. Representations, Warranties and Acknowledgments.

4.1 Title to Property. Landowner represents and warrants that as of the Effective Date, Landowner holds legal and/or equitable interest in and to the Property and that all persons holding legal or equitable interest in the Property shall be bound by the Agreement.

4.2 Authority. The Parties represent and warrant that the persons signing this Agreement are duly authorized to enter into and execute this Agreement on behalf of their respective principals.

4.3 Brokers. The Parties represent and warrant that they have had no dealings with any real estate broker or agent in connection with the negotiation of this Agreement, and that they know of no other real estate broker or agent who is entitled to a commission in connection with this Agreement. In the event any real estate broker or agent shall come forward and claim the right to a commission or other form of compensation in connection with this Agreement, Landowner shall indemnify, defend and hold harmless the City in accordance with Section 26.1.

4.4 Procedures and Requirements. The Parties acknowledge that this Agreement is subject to the procedures for approval, amendment and administration set forth in the Development Agreement Law.
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5. Effective Date and Term.

5.1 Effective Date. The effective date of this Agreement means the date defined at Section 1.10 of this Agreement.

5.2 Term. The term of this Agreement shall commence on the Effective Date and extend for a period of twelve (12) years thereafter, unless said term is terminated, modified or extended by circumstances set forth in this Agreement.

5.2.1. Tolling. The term of this Agreement shall be tolled if and for as long as City determines development within the Southport area is infeasible due to State, Federal or local health and safety requirements; provided, however, that under this circumstance the term of this Agreement shall not be tolled for longer than five (5) years.

5.2.2. Extension. The term of this Agreement will be automatically extended for five (5) years if development of at least fifty percent (50%) or 1,500 residential units in the Project has occurred and all of the improvements and infrastructure associated with those units are constructed and accepted by the City at the conclusion of the initial term.

Following the expiration of the term, this Agreement shall be deemed terminated and of no further force and effect.

5.3 Automatic Termination Upon Completion and Sale of Individual Lots.

Except as provided herein, this Agreement shall automatically be terminated, without any further action by either party or need to execute or record any additional document, with respect to any improved commercial or residential lot within a parcel designated by the Project Approvals for such use, upon issuance by the City of a final certificate of occupancy or its equivalent for a commercial structure or dwelling unit upon such lot and conveyance of such lot by Landowner to a bona-fide, good-faith individual purchaser. In connection with its issuance of a final inspection for any residential lot, the City shall confirm that all Improvements which are required to serve the lot have been dedicated to and accepted by the City, and all applicable fees have been paid by Landowner. Termination of this Agreement as to any such commercial or residential lot shall not in any way be construed to terminate or modify any applicable assessment district, special tax lien, fee credit, or right of reimbursement with respect to such lot. Termination of this Agreement as to any such lot shall extend solely to that lot and shall not extend to other parcels or property encompassed by this Agreement.

5.4 Termination by Mutual Consent. This Agreement may be terminated in whole or in part by the mutual written consent of all the Parties. Any fees paid or Improvements dedicated to the City prior to the date of termination shall be retained by the City.

5.5 Effect of Termination. This Agreement was entered into by the Parties for the limited purpose of setting forth certain terms and conditions concerning the proposed development of Project in a manner that is consistent with the Collective Standards. Accordingly, nothing contained herein is intended or shall be construed to grant to Landowner any rights in connection with the future development of the Property, except for those rights set forth in the Collective Standards and in this Agreement.

The Parties recognize and agree that this Agreement imposes certain continuing obligations and responsibilities on the City and Landowner. Termination of this Agreement, 399
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whether by default as provided in Section 25 or by expiration of its own accord, shall not:
(1) affect any pre-existing liability under this Agreement owed by one Party to the other, which remains unsatisfied as of the date of termination; (2) affect those provisions of this Agreement which provide that they shall survive the termination of this Agreement, including, but not limited to the City’s Purchase Option Agreement set forth in Section 12.1.2, or Landowner’s obligations to comply with the Yarbrough Design Guidelines or Mitigation Measures; (3) be construed to terminate or modify an applicable covenant, condition, servitude or restriction that runs with the land and binds Successors; (4) affect the validity of any structure on the Property or Improvement which is completed as of the date of termination and is in compliance with all necessary permits; or (5) prevent Landowner from completing any structure on the Property or Improvement under construction at the time of termination, provided that any such structure or Improvement is completed in accordance with all necessary permits.

6. Project Approvals and Vested Rights.

6.1 Project Approvals. Upon the Effective Date, Landowner shall acquire a vested right to the Project Approvals as set forth in Section 10.1. Except as otherwise provided in Section 22.4, if Landowner applies to the City Council to amend the Project Approvals, and the City Council approves the requested amendments, then Landowner shall acquire a vested right to such amendments to the Project Approvals as of the date of approval of the amendments by the City Council; provided, however, that Landowner shall not, by virtue of this Agreement, acquire a vested right to any amended Project Approval approved after the expiration of the term of this Agreement.

6.2 Reserved Powers Relating to Project Entitlements and Approvals.

Notwithstanding any other provision of this Development Agreement to the contrary, the City retains the following reserved powers and retains the authority to take the following actions:

6.2.1. Grant or deny applications for land use entitlements and approvals for the Project and the Property, provided such action is consistent with the Collective Standards;

6.2.2. Approve, disapprove or revise subdivision maps, parcel maps or lot line adjustments for the Project and the Property, provided such action is consistent with the Collective Standards;

6.2.3. Apply, or adopt and apply, design and construction requirements for specific public improvements to serve the Project on the Property, except to the extent that such requirements are a part of the Collective Standards or expressly set forth in this Development Agreement;

6.2.4. Adopt and apply City-wide or Non-Project Specific property transfer and/or excise taxes; City-wide or Non-Project Specific utility charges;

6.2.5. Adopt and apply
processing fees;

6.2.6. 6.2.7. Adopt and apply City-wide or Non-Project Specific permit 400
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6.2.8. Adopt and apply regulations to protect the City and its citizens from immediate risks to health and safety. The Landowner hereby agrees that any regulation with respect to flood protection adopted in response to Federal or State guidelines, regulations, or directives shall be deemed necessary to protect the public health and safety;

6.2.9. Adopt or increase fees, charges, assessments or special taxes otherwise authorized by and in compliance with State law (e.g. Gov. Code sections 66000 et seq.), except to the extent prohibited by this Development Agreement;

6.2.10. Adopt and apply City-wide or Non-Project Specific regulations relating to the temporary use of land, the control of traffic, the regulation of sewers, water, and similar subjects, and the abatement of public nuisances;

6.2.11. Adopt and apply engineering design standards and construction specifications;

6.2.12. Adopt and apply City-wide or Non-Project Specific building and fire construction standards;

6.2.13. Adopt or undertake enforcement of land use regulation ordinances, policies, programs, or resolutions in order to comply with Federal or State laws, provided that in the event that such Federal or State laws, plans, programs or regulations prevent or preclude compliance with one (1) or more provisions of this Agreement, such provision or provisions shall be modified or suspended solely as may be necessary to comply with such Federal or State laws or regulations;

6.2.14. Adopt land use regulations, ordinances, policies, programs or resolutions that are not in conflict with, or that are less restrictive than, the terms and conditions for development of the Project on the Property established by this Development Agreement or otherwise applicable Collective Standards and which do not impose additional burdens on such development other than those that are merely procedural in nature;

6.2.15. Adopt land use regulations, ordinances, policies, programs, resolutions or fees that are in conflict with the Collective Standards, but which are either expressly made not applicable to the Property or are consented to in writing by the Landowner either through amendment of this Development Agreement or by separate document.

The foregoing Reserved Powers may be exercised by the City acting through its elected or appointed officials or its employees (subject to the appeal rights (if any) set forth in the Municipal Code), or directly by the electors through the initiative process.

6.3 Meet and Confer. If Landowner believes that the City is taking action to impair a vested right conferred by this Agreement, other than as allowed in this Agreement, Landowner shall provide to City written notice, describing the basis for Landowner’s position. The Parties shall meet and confer within thirty (30) days thereafter in an attempt to arrive at a mutually acceptable solution.

6.4 Further Reviews. Landowner acknowledges that the Collective Standards contemplate further reviews of elements of portions of the Project by the City. These reviews include, but are not limited to, monitoring and implementation of environmental 401
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mitigation measures. Nothing in this Agreement shall be deemed to limit or expand the legal authority of City with respect to such reviews, as provided for by, and which are otherwise consistent with, this Agreement.

6.5 Referendum. Landowner acknowledges that the Adopting Ordinance, the Southport Framework Plan Amendment, the General Plan Amendment, and the Rezone, as legislative land use approvals, are potentially subject to referendum. Notwithstanding anything in this Agreement to the contrary, Landowner shall not acquire a vested right to any legislative land use approval (or to any amendment thereto): (1) while such approval or amendment is still potentially subject to referendum or (2) in the event that such approval or amendment is reversed by referendum.

7. Subdivision Maps.

7.1 Term of Tentative Subdivision Maps. Notwithstanding Government Code section 66452.6(a), the term or “life” of any tentative map for the Project shall be determined by reference to the Subdivision Map Act other than Section 66452.6(a), and shall not be automatically extended for the term of this Agreement.

7.2 Vesting Tentative Maps. Landowner reserves the right to file a “vesting tentative map” as that term is defined in Government Code section 66498.1. Landowner agrees, however, that any such vesting tentative map filed in connection with the Project will not vest the Landowner in any rights with respect to any matter that is identified in the Comprehensive Financing Agreement, the Master Affordable Housing Agreement, the Comprehensive Recreational Phasing and Financing Plan, and this Agreement (including its Exhibits). Landowner further agrees that the Comprehensive Financing Agreement, the Comprehensive Development Phasing Plan, and the Comprehensive Recreational Phasing and Financing Plan shall govern the financing and construction of infrastructure for the Project.

8. Applicable Rules, Regulations, Fees and Official Policies.

8.1 Rules Regarding Design and Construction. Unless otherwise expressly provided in this Agreement, all other ordinances, resolutions, rules, regulations and official policies governing design, improvement and construction standards and specifications applicable to the Project and to public improvements to be constructed by the Landowner shall be those in force and effect at the time the applicable permit approval is granted.

8.2 Uniform Codes Applicable. Unless otherwise expressly provided in this Agreement, the Project shall be constructed in accordance with the California Building Standards Codes, Title 24 of the California Code of Regulations, as adopted and amended by the City, as the same shall be in effect as of the time of approval of the permit in question. The Project shall also be constructed in accordance with the provisions of the California Mechanical, Plumbing, Electrical and Fire Codes, City standard construction specifications, in effect at the time of approval of the appropriate building, grading, encroachment or other construction permits for the Project. If no permit is required for a given infrastructure improvement or other improvement, such improvement will be constructed in accordance with said Codes in effect in the City as of the commencement of construction of such improvement.
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8.3 Fees, Dedications, Assessments and Taxes.

8.3.1. Waiver of Fee Establishment Procedures. Notwithstanding anything in this Agreement to the contrary, Landowner hereby waives the procedures and requirements imposed on cities by the Mitigation Fee Act (Government Code sections 66000 et seq.) for establishing, expending, returning, and reporting on all "fees" as that term is defined in the Mitigation Fee Act, as to the fees established as of the Effective Date of this Agreement. This waiver shall not apply to any fees adopted after the Effective Date; thus, as to fees adopted or revised after the Effective Date, Landowner shall retain whatever rights it has under Federal and State law.

8.3.2. Processing Fees and Charges. Landowner shall pay those processing, inspection, and plan check fees and charges required by City under then current regulations for processing applications and requests for permits, approvals and other actions, and monitoring compliance with any permits issued or approvals granted or the performance of any conditions with respect thereto or any performance required of Landowner hereunder.

8.3.3. Development Impact Fees, Exactions and Dedications.

Landowner shall make all dedications of land and pay all development impact fees, connection or mitigation fees, and exactions required by the City to support in the construction of any public facilities and improvements or the provision of public services in relation to development of the Property (together “Exactions”) authorized by City after the Effective Date as long as said Exactions otherwise comply with applicable law, and are either (1) required on a City-wide basis, or (2) apply uniformly to all properties within the City that are zoned consistent with the Project Approvals, or (3) are Non-Project Specific. Except as otherwise provided in this Agreement, Exactions required by City to be paid by the Landowner that do not meet one of the preceding criteria, shall be the Exactions authorized as of the Effective Date. Wherever this Agreement obligates Landowner to design, construct or install any improvements, the cost thereof shall be provided by Landowner, or may be provided by a Community Facilities District (―CFD‖) or other such financing mechanism acceptable to the City, subject to and in accordance with the provisions thereof.

8.3.4. Exhibits Not Exclusive. Landowner acknowledges that the fees and Improvements set forth in the attached Exhibits are not exclusive but are merely set forth to clarify some of Landowner's obligations under this Agreement.

8.3.5. Mitigation of EIR Impacts. Landowner shall timely satisfy and comply with all Mitigation Measures in accordance with the schedule in the Mitigation Monitoring Plans. The Mitigation Measures are conditions of Project approval but are not the exclusive conditions of Project approval. A failure to timely satisfy any Mitigation Measure or other conditions of Project Approval without prior written City approval shall be a default of this Agreement, subject to the default and cure provisions set forth in Section 25 of this Agreement.

8.3.6. Other Public Agencies. Nothing in this Agreement is intended to govern the authority of other public agencies to impose fees.

8.3.7. Public Works and Community Development. All Improvements and work performed by Landowner in connection with the Project shall be to the satisfaction of the City Public Works Director and Community Development Director. 403
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8.3.8. Acquisition of Land for Improvements. Landowner
acknowledges that some of the public improvements required for the Project will be constructed on land that is not under the control of the Landowner or the City. Except to the extent required under this Agreement, the City is under no obligation to acquire land needed for the construction of such improvements, and the Parties agree that nothing in Government Code section 66452.5 or any other provision of State law will require the City to waive any conditions set forth in the Project approvals related to construction of the Project. Except to the extent required under this Agreement, if the City acquires such land, with the exception of any Right of Way acquisition required for Bevan Road and Burrows Avenue, Landowner shall be responsible for all of City's costs associated with such acquisition (including legal counsel and appraisal fees), subject to possible reimbursement as provided in Section 14.3.

9. Payment and Performance Bonds. Landowner has an affirmative obligation to secure its obligations to construct Project improvements, as required in this Agreement.

Landowner shall secure all infrastructure improvements by delivering payment and performance bonds to City, in a manner consistent with City ordinances and in accordance with this section.

Prior to the commencement of construction of any infrastructure improvement, Landowner or Landowner’s general contractor shall furnish City with payment and performance bonds (“Bonds”), issued by a corporate surety company that is an admitted insurer in the State of California and licensed to do business in California, in an amount approved by City, but not less than the full amount of the construction contract, and shall name City as obligee. The Bonds shall remain in effect until the later of (1) the date that the entire cost of developing the improvement shall have been paid in full, (2) the date that the improvement shall have been completed in accordance with this Agreement, and/or (3) the date on which the City accepted the improvement.

The Bonds shall be in the form prescribed by Government Code sections 66499.1 and 66499.2 for performance and payment bonds and be reasonably satisfactory to City.

10. Use of Property.

10.1 Right to Develop. Landowner shall have the vested right to proceed with development of the Project in accordance with the terms and conditions of this Agreement, the Collective Standards, and any amendments to the Project Approvals as shall, from time to time, be approved pursuant to this Agreement. Landowner’s development of the Property shall be subject to the terms set forth in any subsequent approvals needed for development; provided however, that any conditions, terms, restrictions and requirements contained in any subsequent approvals shall not be inconsistent with or otherwise prevent development of the Property for the uses, or reduce the density and intensity of development, or limit the rate or timing of development set forth in this Agreement, as long as Landowner is not in default under this Agreement.

10.2 Permitted Uses. The permitted uses of the Property, the density and intensity of use, the maximum height and size of proposed buildings, provisions for reservation or dedication of land for public purposes, location and maintenance of on-site and off-site improvements, location of public utilities and other terms and conditions of development applicable to the Property, shall be those set forth in this Agreement, the Collective Standards and any amendments to this Agreement or the Project Approvals. City acknowledges that the Project Approvals provide for the land uses and approximate acreages for the Property as set forth in Exhibit C and Exhibit D.
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10.3 Design Guidelines.

10.3.1. Accessible Design. Medium density designated residential units in the Project shall vary in product type and include accessible designs. For purposes of this section, accessible design may include, for example, single story units, units with living quarters and bedrooms located on the first floor, and/or units that incorporate architectural elements such as wide hallways that promote use of the unit by senior citizens or people with disabilities.

10.3.2. Master Design Guidelines for the Project. Master Design Guidelines for the Yarbrough Project were approved as part of the Southport Framework Plan Amendment and incorporated into the Southport Framework Plan Design Guidelines.

10.3.3. Additional Components. Landowner shall have additional design guidelines, identified in Exhibit E, reviewed and approved by the City’s Planning Commission, in the exercise of its discretion. The additional design guidelines shall be approved by the Planning Commission, based on the timing set forth in Exhibit E, before the corresponding map or permit is issued to Landowner. Upon approval, the additional design guidelines shall be deemed incorporated into the Southport Framework Plan Design Guidelines.

10.3.4. Amendments and Modifications. Amendments or modifications to the Yarbrough Design Guidelines shall be made in accordance with the Southport Framework Plan.

11. Master Affordable Housing Agreement.

11.1 Affordable Housing Term Sheet. Prior to or concurrent with the approval of the first tentative map for the Project, Landowner shall provide a term sheet identifying the substantive terms of the Master Affordable Housing Agreement, which substantive terms shall be to the satisfaction of City staff.

11.2 Affordable Housing Agreement. Prior to or concurrent with the approval of the first small lot final map for the Project, Landowner shall enter into the Master Affordable Housing Agreement with the City, to the satisfaction of the City. At a minimum, the Master Affordable Housing Agreement shall contain the requirements set forth in Exhibit F, attached hereto and incorporated herein by reference.

12. Recreational Uses.

12.1 Golf Course. The golf course located on the Property, and more particularly described in Exhibit G and depicted in Exhibit D, shall be an 18-hole public golf course, including a Pro Shop, and be available to City residents during normal business hours.

Construction of the golf course shall not be credited towards the Project’s Park Impact Fee obligations.

12.1.1. Timing of Construction. Construction of the golf course shall commence with the first phase of construction of the Project in accordance with the terms of the Comprehensive Development Phasing Plan. If the golf course is not completed prior to the issuance of the one thousand two hundredth (1,200th) residential building permit, then no further residential building permits shall be issued. For purposes of this section, the term “completed” shall mean that the golf course, including all infrastructure and improvements thereon, has been 405
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constructed and that the golf course is in the “grow in” or “course maturation” phase. The Pro Shop shall be constructed upon completion of the golf course such that it is open to the public for use and enjoyment at the same time that the golf course is open to the public for use and enjoyment.

12.1.2. Purchase Option. Prior to approval of the first tentative map for the Project, Landowner shall enter into a Purchase Option Agreement with the City (the “Option”). The Option shall allow the City to acquire the golf course and resume operation of the golf course in the event the Landowner (or its successor) decides to cease operating the golf course as a public golf course, consistent with the intent of the City Council expressed at its May 14, 2008 meeting.

12.1.2.1. Legal Description To Purchase Option. Concurrent with the approval of the first final map creating the parcel(s) containing the golf course, the Parties shall amend the Option by inserting a legal description for the golf course.

12.1.3. Indemnification. In the event the golf course closes or the City exercises its purchase option in accordance with Section 12.1.2 herein, all releases, indemnification, defenses, and protection running from individual homeowners and/or the homeowner’s association shall be transferred from the existing golf course operator to the City, its agents, designees, employees, and assigns. Landowner shall do all things necessary to cause this transfer to occur such that the City, as operator, possesses the same releases, indemnification, defenses, and protection as the existing golf course operator arising from activities related to the operation and maintenance of the golf course.

12.1.4. Operation and Maintenance. In the event that the City exercises its Option to purchase the golf course from the Landowner, Landowner shall transfer to the City any funds collected for the purpose of operating and maintaining the golf course. Landowner shall also transfer to the City control over any funding mechanism created for the operation and maintenance of the golf course.

12.2 Parks. The Project Approvals include a five (5) acre Neighborhood Park, the Lake Park (including the recreational and open space improvements included in the Lake Park), Pocket Parks, a village green, and a Designated Trail System, together with recreational and open-space improvements to these areas.

12.2.1. Funding of the Updated Parks Master Plan Park Impact Fee Study. Except as otherwise provided in Section 12.2.5, Landowner shall fund its proportionate share of an update to the Parks Master Plan and a Park Impact Fee Study. Proportionate share shall be determined based upon the projects participating in the update and is initially estimated to be twenty five percent (25%) of two hundred thousand dollars ($200,000). Landowner shall deposit funds with City within thirty-five (35) days of the Effective Date, or the date the City determines Landowner’s proportionate share, whichever occurs later.

12.2.2. Update to the Master Plan and Fee Study. Except as otherwise provided in Section 12.2.5, the City shall commence the update of the Parks Master Plan and Fee Study not more than thirty (30) days after receipt of funds from all participating projects. Once the update and fee study are commenced, the City shall move forward expeditiously with the development and approval of the update and fee study. Landowner expressly acknowledges and agrees that City shall not commence the update to the Master Plan and Fee Study until and unless it receives fees sufficient to cover the costs of the updates. 406
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12.2.3. Purpose of the Update to the Parks Master Plan and Park Impact Fee Study. The purpose of this update shall be to (1) reflect additional population projections in the Southport area (including the Project), (2) identify park facilities necessary to serve that population, (3) determine the costs associated with developing the identified park facilities, (4) to evaluate to what extent the park improvements included in the Project, including the Lake Park and those improvements programmed as part of the Lake Park, will be incorporated into the Parks Master Plan and eligible for park credits, and (5) include a Park Impact Fee Study for the purpose of updating the City’s park-related fees. Once the update is commenced, the City shall move forward expeditiously with the development and approval of the fee update. The Landowner shall be subject to the updated Park Impact Fee and shall pay that fee.

12.2.4. Building Permits. No building permits shall be issued for the Project until the update of the Parks Master Plan and Park Impact Fee Study is completed and the updated impact fee is approved. All required improvements identified in the updated Master Plan shall be financed and constructed in accordance with the Comprehensive Recreational Phasing and Financing Plan. Notwithstanding the foregoing, in the event that the update to the Parks Master Plan and Park Impact Fee Study has not been approved within eighteen (18) months of the City commencing the update, Landowner may be eligible to pull building permits if Landowner pays the then existing park impact fee and enters into an agreement with the City to pay the updated park impact fee when it is approved. Landowner expressly acknowledges and agrees, however, that no building permits will be issued until and unless City receives fees from Landowner and participating projects, sufficient to cover the cost to commence the update to the Master Plan and Fee Study.

12.2.5. Alternative Timing for Update to the Master Plan and Fee Study. If the City has not obtained all the funds necessary to update the Parks Master Plan and Park Impact Fee Study within ninety (90) days of the Effective Date, then Landowner may request that the City commence the updates to the Master Plan and Impact Fee Study specifically for the Project, subject to the written approval of the Director. Upon approval of the Director, Landowner shall deposit with the City one hundred percent (100%) of the cost of the updates; Landowner acknowledges that, notwithstanding Section 14.3, Landowner shall not be entitled to reimbursement for funding the updates under this section since the update would only include the Project. The City and Landowner acknowledge and agree that the intent of this section is to provide Landowner an opportunity to move forward with the Parks Master Plan and Park Impact Fee Study, in the event that the City is unable to obtain funding from all participating projects.

12.2.6. Ownership and Maintenance. The Neighborhood Park and Designated Trail System shall be publicly owned and maintained, and open to the public for use and enjoyment. Unless otherwise indicated in the Comprehensive Recreational Phasing and Financing Plan, all other park facilities developed as part of the Project shall be open to the public for use and enjoyment, but shall be privately owned and maintained.

12.2.7. Credits.

12.2.7.1. Upon completion of the construction of the park facilities identified in the Comprehensive Recreational Phasing and Financing Plan, and at such time as the improvements are “completed,” Landowner shall be eligible for park impact fee credits to the extent that the facilities are consistent with the City’s updated Parks Master Plan and identified in the Master Plan as being eligible for credit. For purposes of this section, park facilities are 407
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―completed‖ when the facility and corresponding improvements and infrastructure are constructed and available for public use and enjoyment.

12.2.7.2. The City shall have a controlling role in
programming, design, and construction of any park facilities eligible for credit; however, all costs associated with any park facility shall be borne by the Landowner. The term ―controlling role‖ shall be described in the Comprehensive Recreational Phasing and Financing Plan.

12.2.8. Timing of Improvements of Parks. The construction of park facilities shall be phased in accordance with Section 12.2.9, the Comprehensive Recreational Phasing and Financing Plan. Park facilities adjacent to a residential neighborhood shall be constructed and completed prior to completion of fifty percent (50%) of the residential dwelling units in the residential neighborhood. For purposes of this section 12.2.8, park facilities are “completed” when the park facility and corresponding improvements and infrastructure are constructed and available for public use and enjoyment. A residential dwelling unit is “completed” when the City has performed its final inspection of the unit and the unit is eligible for the issuance of a certificate of occupancy or its equivalent.

12.2.9. Comprehensive Recreational Phasing and Financing Plan.

Landowner agrees to prepare and implement a Comprehensive Recreational Phasing and Financing Plan that shall include, but not be limited to the following:

12.2.9.1. Designated Trail System,

12.2.9.2. The Lake Park,

12.2.9.3. The Neighborhood Park, and

12.2.9.4. Pocket Parks.

The Comprehensive Recreational Phasing and Financing Plan shall identify specific residential neighborhoods and the timing of construction of the corresponding park facilities adjacent to those neighborhoods to ensure compliance with the provisions set forth in this Agreement and the Parks Master Plan update. The Comprehensive Recreational Phasing and Financing Plan shall also define, with specificity, Landowner’s obligation to finance the park facilities. Prior to the issuance of the first small lot final map for the Project, Landowner shall identify the substantive terms of the Comprehensive Recreational Phasing, Financing, and Reimbursement Plan. The Comprehensive Recreational Phasing and Financing Plan shall be subject to the review and written approval of the City, prior to the approval of the first final map for the Project.

12.2.10. Designated Trail System. No later than the timing set forth in the Comprehensive Recreational Phasing and Financing Plan of the subdivision improvements, Landowner shall design, construct, and grant a Designated Trail System. Segments of the Designated Trail System shall be phased to provide connectivity to other transit corridors within the Property.

13. Public Improvements.

13.1 Drainage Master Plan and Drainage Impact Fee Study.

13.1.1. Funding of the Updated Master Plan and Fee Study. Except as 408
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otherwise provided in Section 13.1.6, Landowner shall fund its proportionate share of an update to the Drainage Master Plan and a Drainage Impact Fee Study. Proportionate share shall be determined based upon the projects participating in the update and their respective equivalent dwelling units. Landowner shall deposit funds with City within thirty-five (35) days of the Effective Date, or the date the City determines Landowner’s proportionate share, whichever occurs later.

13.1.2. Update of the Master Plan and Fee Study. Except as otherwise provided in Section13.1.6, the City shall commence the update of the Drainage Master Plan and Fee Study not more than thirty (30) days after receipt of funds from all participating projects. Once the update and fee study are commenced, the City shall move forward expeditiously with the development and approval of the update and fee study. Landowner expressly acknowledges and agrees that City shall not commence the update to the Master Plan and Fee Study until and unless it receives fees sufficient to cover the costs of the updates.

13.1.3. Eligibility for Reimbursement. Eligibility of Landowner for reimbursement, including reimbursement for the construction and improvement of the lakes and waterways as a retention basin for purposes of drainage, shall be in accordance with Section

14.3. Credits or reimbursements shall be limited to the amount of land necessary to provide drainage for the Project as reflected in the Hydrology study in the EIR.

13.1.4. Construction and Financing of Improvements. All improvements and infrastructure identified in the update to the Drainage Master Plan shall be incorporated into the Comprehensive Development Phasing Plan and Comprehensive Financing Agreement.

13.1.5. Building Permits. No building permits shall be issued for the Project until the update of the Drainage Master Plan and Drainage Impact Fee Study is completed and the updated impact fee is approved. All required improvements identified in the updated Master Plan shall be financed and constructed in accordance with the Comprehensive Financing Agreement and Comprehensive Development Phasing Plan. Notwithstanding the foregoing, in the event that the update to the Drainage Master Plan and Drainage Impact Fee Study has not been approved within eighteen (18) months of the City commencing the update, Landowner may be eligible to pull building permits if Landowner pays the then existing drainage impact fee and enters into an agreement with the City to pay the updated drainage impact fee when it is approved.

Landowner expressly acknowledges and agrees, however, that no building permits will be issued until and unless City receives fees from Landowner and participating projects, sufficient to cover the cost to commence the update to the Master Plan and Fee Study.

13.1.6. Alternative Timing for Update to the Master Plan and Fee Study. If the City has not obtained all the funds necessary to update the Drainage Master Plan and Drainage Impact Fee Study within ninety (90) days of the Effective Date, then Landowner may request that the City commence the updates to the Master Plan and Impact Fee Study specifically for the Project, subject to the written approval of the Director. Upon approval of the Director, Landowner shall deposit with the City one hundred percent (100%) of the cost of the updates; Landowner acknowledges that, notwithstanding Section 14.3, Landowner shall not be entitled to reimbursement for funding the updates under this section since the update would only include the Project. The City and Landowner acknowledge and agree that the intent of this section is to provide Landowner an opportunity to move forward with the Drainage Master Plan and Drainage Impact Fee Study, in the event that the City is unable to obtain funding from all participating projects.
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13.1 Lakes and Waterways. Lakes and waterways developed as part of the Project shall be privately owned by the Landowner. Landowner shall maintain and operate the lakes and waterways in accordance with Exhibit E and to the satisfaction of Reclamation District 900, its successors or assigns. Upon approval of the final map for the Project that identifies and creates the lakes and waterways as a separate parcel of land, Landowner shall grant the City an Irrevocable Offer of Dedication (the “IOD”) to the said parcel. The IOD shall be in a form prepared by the City and offer the City the right, but not the obligation, to accept the lakes and waterways. In the event that the City accepts the lakes and waterways from the Landowner, the Landowner shall transfer to the City any funds collected for the purpose of operating and maintaining the lakes and waterways. Landowner shall also transfer to the City control over any funding mechanism created for the operation and maintenance of the lakes and waterways. Upon transfer of the funds and funding mechanism from Landowner to the City, the City shall be responsible for the operation and maintenance of the lakes and waterways. Nothing in this section shall be construed to allow Landowner to receive compensation or to be eligible for reimbursements or credits toward development impact fees for the IOD.

13.2 Water Master Plan.

13.2.1. Funding of the Updated Master Plan and Fee Study. Except as otherwise provided in Section 13.2.6, Landowner shall fund its proportionate share of an update to the Water Master Plan and a Water Impact Fee Study. Proportionate share shall be determined based upon the projects participating in the update and their respective equivalent dwelling units.

Landowner shall deposit funds with the City within thirty-five (35) days of the Effective Date, or the date the City determines Landowner’s proportionate share, whichever occurs later.

13.2.2. Update of the Master Plan and Fee Study. Except as otherwise provided in Section 13.2.6, the City shall commence the update of the Water Master Plan and Fee Study not more than thirty (30) days after receipt of funds from all participating projects. Once the update and fee study are commenced, the City shall move forward expeditiously with the development and approval of the update and fee study. Landowner expressly acknowledges and agrees that City shall not commence the update to the Master Plan and Fee Study until and unless it receives fees sufficient to cover the costs of the updates.

13.2.3. Water Supply, Treatment Extensions and Storage. Landowner shall construct or advance funds for water supply, treatment extensions and/or storage expansion, or other infrastructure necessary to serve the Project, as identified in the updated Water Master Plan. The City shall have a controlling role in the program, design, and construction of such facilities.

13.2.4. Eligibility for Reimbursement. Eligibility of Landowner for reimbursement shall be in accordance with Section 14.3.

13.2.5. Building Permits. No building permits shall be issued for the Project until the update of the Water Master Plan is completed and the updated impact fee approved. All required improvements identified in the updated Water Master Plan shall be financed and constructed in accordance with the Comprehensive Financing Agreement and Comprehensive Development Phasing Plan. Notwithstanding the foregoing, in the event that the update to the Water Master Plan and Fee Study has not been approved within eighteen (18) 410
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months of the City commencing the update, Landowner may be eligible to pull building permits if Landowner pays the then existing water impact fee and enters into an agreement with the City to pay the updated water impact fee when it is approved. Landowner expressly acknowledges and agrees, however, that no building permits will be issued until and unless City receives fees from Landowner and participating projects, sufficient to cover the cost to commence the update to the Master Plan and Fee Study.

13.2.6. Alternative Timing for Update to the Master Plan and Fee Study. If the City has not obtained all the funds necessary to update the Water Master Plan and Water Impact Fee Study within ninety (90) days of the Effective Date, then Landowner may request that the City commence the updates to the Master Plan and Impact Fee Study specifically for the Project, subject to the written approval of the Director. Upon approval of the Director, Landowner shall deposit with the City one hundred percent (100%) of the cost of the updates; Landowner acknowledges that, notwithstanding Section 14.3, Landowner shall not be entitled to reimbursement for funding the updates under this section since the update would only include the Project. The City and Landowner acknowledge and agree that the intent of this section is to provide Landowner an opportunity to move forward with the Water Master Plan and Water Impact Fee Study, in the event that the City is unable to obtain funding from all participating projects.

13.3 Sewer Master Plan.

13.3.1. Funding of the Updated Master Plan and Fee Study. Except as otherwise provided in Section 13.3.6, Landowner shall fund an update to the Sewer Master Plan and a Sewer Impact Fee Study. Proportionate share shall be determined based upon the projects participating in the update and their respective equivalent dwelling units. Landowner shall deposit funds with City within thirty-five (35) days of the Effective Date, or the date the City determines Landowner’s proportionate share, whichever occurs later.

13.3.2. Update of the Master Plan and Fee Study. Except as otherwise provided in Section 13.3.6, the City shall commence the update of the Sewer Master Plan and Fee Study not more than thirty (30) days after receipt of funds from all participating projects. Once the update is commenced, the City shall move forward expeditiously with the development and approval of the update and fee study. Landowner expressly acknowledges and agrees that City shall not commence the update to the Master Plan and Fee Study until and unless it receives fees sufficient to cover the costs of the updates.

13.3.3. Wastewater Treatment. Landowner shall cooperate with Sacramento Regional County Sanitation District (―SRCSD‖) regarding the capacity of the wastewater treatment and lower northwest inceptor. Landowner shall also construct or advance funds for any required pump station improvements and/or wastewater infrastructure expansion.

The City and SRCSD shall have a controlling role in the program, design, and construction of such facilities.

13.3.4. Eligibility for Reimbursement. Eligibility of Landowner for reimbursement shall be in accordance with Section 14.3.

13.3.5. Building Permits. No building permits shall be issued for the Project until the update of the Sewer Master Plan is completed and the updated impact fee approved. All required improvements identified in the updated Sewer Master Plan shall be 411
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financed and constructed in accordance with the Comprehensive Financing Agreement and Comprehensive Development Phasing Plan. Notwithstanding the foregoing, in the event that the update to the Sewer Master Plan and Fee Study has not been approved within eighteen (18) months of the City commencing the update, Landowner may be eligible to pull building permits if Landowner pays the then existing sewer impact fee and enters into an agreement with the City to pay the updated sewer impact fee when it is approved. Landowner expressly acknowledges and agrees, however, that no building permits will be issued until and unless City receives fees from Landowner and participating projects, sufficient to cover the cost to commence the update to the Master Plan and Fee Study.

13.3.6. Alternative Timing for Update to the Master Plan and Fee Study. If the City has not obtained all the funds necessary to update the Sewer Master Plan and Sewer Impact Fee Study within ninety (90) days of the Effective Date, then Landowner may request that the City commence the updates to the Master Plan and Impact Fee Study specifically for the Project, subject to the written approval of the Director. Upon approval of the Director, Landowner shall deposit with the City one hundred percent (100%) of the costs of the updates; Landowner acknowledges that, notwithstanding Section 14.3, Landowner shall not be entitled to reimbursement for funding the updates under this section since the update would only include the Project. The City and Landowner acknowledge and agree that the intent of this section is to provide Landowner an opportunity to move forward with the Sewer Master Plan and Sewer Impact Fee Study, in the event that the City is unable to obtain funding from all participating projects.

13.4 Traffic.

13.4.1. Funding of the Updated Fee Study. Except as otherwise provided in Section 13.4.5, Landowner shall fund an update to the Traffic Impact Fee Study.

Proportionate share shall be determined based upon the projects participating in the update and their respective equivalent dwelling units. Landowner shall deposit funds with City within thirtyfive (35) days of the Effective Date, or the date the City determines Landowner’s proportionate share, whichever occurs later.

Update of the Fee Study. Except as otherwise provided in Section the City shall commence the update of the Traffic Impact Fee Study not more than thirty (30) days after receipt of funds from all participating projects. Once the update of the fee study has commenced, the City shall move forward expeditiously with the development and approval of the fee study. The updated Traffic Impact Fee study shall include the improvements set forth in Exhibit I of this Agreement.

Landowner also agrees to make the improvements and funding commitments more particularly described in Exhibit J of this Agreement which includes Jefferson Boulevard improvements obligation and timing. Landowner expressly acknowledges and agrees that City shall not commence the update to the Fee Study until and unless it receives fees sufficient to cover the costs of the updates. City acknowledges that the transportation/traffic improvements identified in this agreement as Fee Credit eligible are eligible for Fee Credit upon the approval of this Amended and Restated DA by the City Council.

13.4.2. Eligibility for Reimbursement. Eligibility of Landowner for reimbursement shall be in accordance with Section 14.3.

All required improvements shall be financed and constructed in accordance with the Comprehensive Financing Agreement and Comprehensive Development Phasing Plan.
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13.4.3. South River Road Bridge.

13.4.3.1. Construction of the South River Road Bridge.

The South River Road Bridge, as more particularly described in Exhibit H, shall be constructed and completed prior to the issuance of the combined total of two thousand (2,000) residential building permits within the Southport area beyond those identified as Existing plus Approved.

Once the two thousandth (2,000th) threshold is reached, no further building permits shall be issued for the Project until the South River Road Bridge is constructed and open to the public for use and enjoyment.

13.4.3.2. Funding of the South River Road Bridge.

Landowner shall pay or advance all fees and costs for the design, development and construction of the South River Road Bridge at least eighteen (18) months before the issuance of the two thousandth (2,000th) building permit in the Southport area, or as more particularly described in the Comprehensive Financing Agreement. The Comprehensive Financing Agreement shall identify with specificity the timing of Landowner’s obligations towards financing the South River Road Bridge and the Landowner’s proportionate share of costs.

13.4.3.3. Reimbursement. Landowner shall be eligible for reimbursement pursuant to Section 14.3. In the City’s sole discretion, Landowner may alternatively establish or join a financing mechanism to fund the design, development, and construction of the bridge.

14. Phasing and Financing of Improvements and Infrastructure.

14.1 Phasing.

14.1.1. Comprehensive Development Phasing Plan. Landowner shall identify and agrees to prepare and implement a comprehensive development phasing plan that 413
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shall include, but not be limited to the phasing of the following (collectively, the ―Comprehensive Development Phasing Plan):

14.1.1.1. Project construction activities, generally,

14.1.1.2. Infrastructure development, including any Improvements identified in the updated Water, Sewer, Drainage, and Traffic Impact Fee Study, but not including park facilities, which are separately addressed in the Comprehensive Recreational Phasing and Financing Plan,

14.1.1.3. Commercial site availability for development,

14.1.1.4. The golf course,

14.1.1.5. Affordable housing construction, and

14.1.1.6. Planning and implementation of interim and
alternative transit modes and routes, including a mechanism to permit substitution of transportation improvements and/or mitigation measures to achieve equivalent mitigation while protecting the interests of the affected neighborhood.

The substantive terms of the Comprehensive Development Phasing Plan shall be identified and generally accepted by City staff, prior to the approval of the first tentative map for the Project. The Comprehensive Development Phasing Plan shall be subject to the review and written approval of the City, and shall be approved prior to the issuance of the first final map for the Project. In reviewing and approving the Comprehensive Development Phasing Plan, City staff shall take into consideration the phasing of the Project in an effort to limit the potential temporal disturbance from construction activities on surrounding residential properties.

14.2 Financing.

14.2.1. Comprehensive Financing Agreement. The substantive terms of the Comprehensive Financing Agreement shall be identified and generally accepted by City staff, prior to the approval of the first small lot final map for the Project. Prior to approval of the first small lot final map for the Project, Landowner and City shall enter into an agreement defining with specificity Landowner’s obligations in connection with the financing and construction of certain infrastructure improvements in the City (the “Comprehensive Financing Agreement”). The Comprehensive Financing Agreement shall include the financing of improvements identified in Exhibit M, attached hereto and incorporated herein by reference.

14.2.2. Advance Funding for Traffic Improvements. The City will use its reasonable efforts to require any new development in the Southport area that is greater than fifty (50) residential units to participate in the advance funding of the South River Road Bridge and other Southport area traffic improvements identified in the Updated Traffic Impact Fee Study.

14.3 Reimbursement. Whenever the size of any improvements set forth in this Agreement are partly attributable to other development projects, or Landowner advances funds in excess of its proportionate share for the update of any master plan or fee study in accordance with this Agreement, Landowner and the City will enter into a reimbursement 414
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agreement pursuant to the City’s Municipal Code Chapter 16.48. The City acknowledges that the intent of a reimbursement agreement is to provide a mechanism by which Landowner may be eligible to receive reimbursement when the reasonable cost incurred by developer in constructing public improvements exceeds the developer’s “fair share” of the cost of the improvements. Under such circumstances, Landowner may be eligible to receive reimbursement from applicable impact fees paid by the Landowner or other developers. Landowner acknowledges that except under the terms of this Agreement that a reimbursement agreement does not guarantee reimbursement. The City finances the development of other public improvements in a similar manner, and as a result, some or all of the fees that the City will collect or be entitled to collect from other development may be used to reimburse other developers for eligible public improvements constructed by them. In addition, the City may contract directly for the construction of public improvements using available or anticipated impact fees. Consequently, the City makes no representation or warranty concerning the availability or sufficiency of future fees to provide full reimbursement to Landowner. Furthermore, in some cases Landowner may be required by the terms of this Agreement or the Comprehensive Financing Agreement to pay more than its “fair share” of the cost of certain public improvements. In such cases, Landowner may not be eligible for reimbursement or may be eligible for reimbursement, but in an amount less than what Landowner might otherwise be eligible to receive but for this Agreement. Nevertheless, the City and Landowner understand and agree that, within the constraints identified above, the intent of this Agreement is to attempt to provide a mechanism for reimbursing Landowner to the extent that reasonable costs exceed Landowner’s “fair share,” and although the City cannot guarantee a particular outcome, the City shall use its best efforts to exercise its discretion in a manner consistent with this intent.

15. Levee Improvements.

15.1 Prior to the approval of the first final map for the Project, Landowner shall comply with and implement any levee improvements determined by the City to be necessary for development of the Project. The parties anticipate that the improvements may include the following:

15.1.1. Conversion of Project’s in-lieu fees with a mutually acceptable funding mechanism to City and Landowner, and/or,

15.1.2. Dedication of any land, permanent easement or right-of-way required for construction or maintenance of any feasible levee improvement which shall qualify for reimbursements or credits against the Project’s in-lieu fees, in accordance with Section 14.3.

15.1.3. Compliance with any flood construction standards that may be eventually mandated by the City or state, and/or additional financial advancements.

The value of any dedicated land, easements, or rights-of-way, shall be determined by the City at the time of the first tentative map approval.

In addition to any of the above improvements, Landowner shall make a financial advancement beyond the payment of in-lieu fees, to achieve a Federal Emergency Management Agency (FEMA) designation to allow the development of the Project; provided, however, that Landowner’s requirement to make additional financial contributions is Non-Project Specific and the financial advancement is proportionate to the Project. The City and Landowner understand and acknowledge that such financial advancement, if required, may affect the 415
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phasing of the golf course. The Comprehensive Financing Agreement shall address the timing and phasing of such improvements and financial contributions.

15.2 Construction Easements. Prior to the approval of the first final map for the Project, Landowner shall grant to the City, without compensation or credits, temporary construction easements along the deep water ship channel, as required by the Army Corps of Engineers, Reclamation District 900, and/or the West Sacramento Flood Control Agency, for levee improvements within the Property. Landowner agrees that areas designated by those agencies shall be no build areas until such time that the levee improvements are constructed and completed.

16. Additional Obligations.

16.1 Fire and Police. Landowner shall dedicate property to the City for the purpose of a planned fire station (relocated Station # 42) and police within the Project, in accordance with the Comprehensive Development Phasing Plan and Comprehensive Financing Agreement and the Southport Fire Response Study. The timing of construction shall be identified in the Comprehensive Phasing Agreement. The dedication of property and any advance funding for the design and construction of the planned fire will be eligible for impact fee credits and reimbursements in accordance with Exhibit H. in accordance with the requirements. The requirements are set forth in Exhibit H, attached hereto and incorporated herein by reference.

16.2 School Agreement. Landowner shall enter into an agreement with the Washington Unified School District, to the satisfaction of the School District, for the phasing and development of school facilities to serve the Project. Prior to the approval of the first final map for the Project, Landowner shall provide the City with evidence of the fully executed agreement.

16.3 Enhanced Transit/ Mobility System. The Comprehensive Development Phasing Plan and Comprehensive Financing Plan shall require Landowner to participate in a mechanism to finance capital costs for an enhanced transit system and to participate in a financing mechanism for annual operating costs. Landowner’s contribution to capital costs is initially estimated at Two Million Four Hundred and Thirteen Thousand dollars ($2,413,000) which shall be dedicated to the construction off Jefferson Boulevard improvements in Phase I.

Landowner’s contribution to operating costs is initially estimated at Eight Hundred and Fifty-One Thousand dollars ($851,000) per year which shall commence with the formation of the Project’s Community Facilities District. These financing mechanisms shall include the Project and any other projects as bound between Jefferson Boulevard, the Sacramento River, and the barge canal, for an enhanced Southport-wide transit/ mobility system upon City adoption.

16.4 Traffic Reduction Plan. Landowner shall devise a traffic reduction plan for the Project, which shall be completed prior to the satisfaction of City staff at the approval of the first small lot final map for the Project. The Plan shall project provide measures to reduce traffic, such as:

16.4.1. Parking facilities: preferential parking for carpools and vanpools, perimeter or park-and-ride lots with shuttle service, restricted parking for single-occupancy vehicles;

16.4.2. Bicycle facilities: secured bicycle parking facilities, bicycle lockers, bicycle racks, showers and lockers;
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16.4.3. Services: on-site sale of transit passes, shuttle services, carpool/vanpool matching services, informational and promotional programs, guaranteed ridehome program; vanpool subsidies;

16.4.4. Subsidies: subsidies for transit passes/tickets, parking subsidies,

16.4.5. Special incentives: creative incentive programs, disincentives, schedules (flextime, alternative work shifts), telecommuting; and,

16.4.6. Other: golf cart transportation routes between residences within the Project and the village core, golf cart parking within the village core, employee travel allowance, reduced-emission vehicles, and on-site childcare facilities.

16.5 Evacuation and Emergency Management Plan.

16.5.1. Funding of the Updated Evacuation and Emergency Management Plan. Except as otherwise provided in Section 16.5.5, Landowner shall fund its proportionate share of an update to the City’s Evacuation and Emergency Management Plan to include the Project. Proportionate share shall be determined based upon the projects participating in the update and their respective equivalent dwelling units. Landowner shall deposit funds with City within thirty-five (35) days of the Effective Date, or the date the City determines Landowner’s proportionate share, whichever occurs later.

16.5.2. Update of the Plan. Except as otherwise provided in Section

16.5.5, the City shall commence the update of the Evacuation and Emergency Management Plan not more than thirty (30) days after receipt of funds from all participating projects. Once the update is commenced, the City shall move expeditiously with the development and approval of the update. Landowner expressly acknowledges and agrees that City shall not commence the update to the Evacuation and Emergency Management Plan until and unless it receives fees sufficient to cover the costs of the updates.

16.5.3. Eligibility for Reimbursement. Eligibility of Landowner for reimbursements shall be in accordance with Section 14.3.

Final Maps.

16.5.4. Alternative Timing for Update to the Evacuation and Emergency Management Plan. If the City has not obtained all the funds necessary to update the Evacuation and Emergency Management Plan within ninety (90) days of the Effective Date, then Landowner may request that the City commence the updates to the Management Plan specifically for the Project. Landowner shall deposit with the City one hundred percent (100%) of the cost of the update for the Project; Landowner acknowledges that, notwithstanding Section

14.3, Landowner shall not be entitled to reimbursement for funding the update under this section since the updated would only include the Project. The City and Landowner acknowledge and agree that the intent of this
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section is to provide Landowner an opportunity to move forward with the Evacuation and Emergency Management Plan, in the event that the City is unable to obtain funding from all participating projects.

16.6 Planning Area 14 Rural Estate Buffer. The northern ten (10) acres within Planning Area 14 (Exhibit D) designated as Medium Density Residential (MR), shall be developed at no more than four (4) units per acre (large lots) to provide for transition to the existing Rural Estate (RE) lands on the north side of Bevan Road. In addition, a minimum twenty (20) foot wide landscaped buffer shall be developed along the south side of Bevan Road within Planning Area

14. The remainder of Planning Area 14 shall be developed within the prescribed density range identified by the Southport Framework Plan. The density range for the MR land use is currently prescribed as 5.1 to 12.0 dwelling units per acre.

17. Tower Court Fee Credits. Landowner and the City’s Redevelopment Agency (the ―RDA‖) are in the process of negotiating the sale of a property located at Tower Court, APN No. 67-330-17, located in the City of West Sacramento, County of Yolo (―Tower Court‖). Landowner proposes to purchase the Tower Court property from the RDA with fee credits. For purposes of this section, the term ―fee credits‖ refers to the fact that Landowner is entitled to reimbursement of at least three million two hundred and fifty thousand dollars ($3,250,000) from the City for costs associated with Landowner’s construction of improvements for other projects. Instead of being reimbursed by the City, under this transaction, Landowner would use the right to reimbursement to purchase Tower Court. If this sale occurs, then Landowner shall not transfer any other fee credits to or from any builder or related party to this Project for use in offsetting or paying Citywide development impact fees towards the Yarbrough Project, until such time that builder(s) or any related party has first purchased credits from the City’s Redevelopment Agency for the value determined in accordance with the Development and Disposition Agreement for Tower Court. In the event that the Tower Court property is not purchased by the Landowner with existing fee credits, this section shall not preclude Landowner from transferring fee credits to third parties at any time.

18. Community Facilities District.

18.1 Financing. Landowner may request that the City initiate the formation of a Community Facilities District ("CFD") formed pursuant to the Mello Roos Community Facilities Act of 1982 (Government Code section 53311 et seq.) for the purpose of financing the acquisition or construction of the Improvements and the issuing of bonds. The decision of whether to initiate CFD formation procedures shall be within the absolute discretion of the City.

18.2 Costs. Landowner shall be responsible for the costs of establishing any CFDs.

19. Service District for Maintenance.

19.1 Formation. Landowner waives its rights with respect to the formation of or inclusion in a special assessment district formed for the purposes of operation of Improvements or publicly owned parks and facilities. Landowner acknowledges that the services to be financed by the Assessment Districts will provide a "special benefit" to the Property (as defined in Article XIII D of the California Constitution).

19.2 Funding for Maintenance and Public Services. Landowner is required to provide a source of funding for maintenance of Infrastructure Improvements and public 418
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services for the Project, the amount of such funding shall be determined by the CFD fiscal analysis approved by the Finance Director in consultation with the Landowner. Landowner is responsible for the following maintenance and public service costs.

1. Public Safety. Landowner agrees to participate in the formation of a city wide “Public Safety” financing mechanism including fire and police personnel, equipment, and maintenance costs prior to the approval of the first small lot final map for the project.

2. 1.2 CFD Formation. Landowner may petition that the City initiate the formation of a Community Facilities District (“CFD”) formed pursuant to the Mello-Roos Community Facilities Act of 1982 (Government Code section 53311 et seq.) for the purpose of financing the maintenance and public services obligations of the Project. If a CFD is the selected funding mechanism for services, the trigger for special taxes to be levied with such a CFD shall be consistent with the timing of the City incurring such service costs, as determined in the City’s sole discretion.

3. Timing. If the Landowner seeks to provide financing for services and maintenance within the Project through a CFD, the formation of the CFD shall be complete by the date of the approval of the first small lot final map for the Project. If the Landowner seeks to provide financing for the services and maintenance within the project through another funding mechanism, such funding shall also be in place by the date of the approval of the first small lot final map for the Project.

4. Obligation to Fund Cost of CFD Formation. Landowner shall be responsible for the costs of establishing any CFDs.
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20. Home Owners Association. Landowner shall cause to be established a Home Owners Association or other non-City entity, to the satisfaction of the City, to own and maintain such privately owned Improvements within the Project as are designated by the City, and in accordance with the Comprehensive Financing Agreement. The City shall have the right to approve and enforce all bylaws for the Home Owners Association and all Covenants, Conditions and Restrictions for the Property as they pertain to maintenance and repair of such improvements including the golf course or any park facilities.

21. Not a Part Lands.

21.1 The Not a Part Lands are not a part of the Project nor a party to this Agreement; therefore, no rights are vested to the Not a Part Lands pursuant to the Agreement.

21.2 No application for entitlements associated with the Not a Part Lands has been submitted to the City. Development of the Not a Part Lands would require separate application(s) and approval by the City, and could require amendments to the General Plan, Southport Framework Plan, and/or Zoning ordinance, depending on the project(s) proposed. In order to facilitate the City’s consideration of such application(s), should application(s) be submitted, Landowner shall consult with the owners of the Not a Part Lands, with the aim of submitting a single application encompassing that portion of the Not a Part Lands seeking such approvals. Although the environmental impacts of development associated with such approvals are analyzed generally as Alternative 5 in theEIR, Landowner understands and acknowledges that further environmental analysis of any such application will be required under CEQA. If authorized by the landowners of the Not a Part Lands to file such single application, Landowner agrees to pay for the cost of processing such single application, including costs associated with additional environmental analysis and deposits and/or filing fees. Nothing in this Agreement shall constrain the City’s exercise of its discretion with respect to whether or on what terms to approve such an application.

21.3 Consistent with existing City policy, the Master Plan Updates required by this Agreement shall anticipate the future development potential of the Not a Part Lands. Project design shall not preclude the potential future development of adjacent Not a Part Lands.

21.4 A thirty (30) foot wide agricultural buffer shall be incorporated into the Project adjacent to the Not a Part Lands. Residential uses shall not be permitted within this buffer.

This requirement shall not apply to Not a Part Lands that are rezoned to non-agricultural uses.

21.5 Tentative maps for portions of the Project adjacent to the Not a Part Lands shall include a condition of approval requiring the Landowner to provide financial assurances to the Not a Part Lands landowners in the event that construction activities associated with the Project cause property damage to the Not a Part Lands. Prior to the recordation of the first final map in Phase I of the Yarbrough Project, the Developer shall provide a construction damage bond or letter of credit in the amount of $1,500,000. The purpose of this bond or letter of credit shall be to compensate landowners located in the 'Not a Part Lands' (the four contiguous five-acre homes/ parcels bordered by Burrows Avenue to the North within the Project area) that are contiguous to the property subject to the tentative map for the cost of damage to property improvements caused as the result of construction activities on Burrows Avenue upon initial construction to a Rural Road Standard.

Additionally, prior to the recordation of the first final map in Phase III of the Yarbrough Project, the 420
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Developer shall provide a subsequent construction damage bond, letter of credit in the amount of $1,500,000. The purpose of this bond or letter of credit shall be to compensate landowners located in the 'Not a Part Lands' (the four contiguous five-acre homes/ parcels bordered by Burrows Avenue to the North within the Project area) that are contiguous to the property subject to the tentative map for the cost of damage to property improvements caused as the result of construction activities of Yarbrough property.
'Not a Part' landowners shall be eligible to file a claim against the bonds until five (5) years after the last building permit is issued in Phase III of the Project, at which time such eligibility shall cease. In order to file a claim for compensation from this bond or other financial assurance, the 'Not a Part' landowner must submit to a pre-construction property inspection and a post-damage property inspection. Developer shall provide 'Not a Part' landowners written notice when the financial assurance has been provided, and the Developer and each owner of a portion of the 'Not a Part Lands" shall cooperate on scheduling the pre-construction property inspection. Construction activity shall occur no sooner than 90 days from the date notice is provided to allow time for the pre-construction inspections to be completed. Both inspections shall be performed by a licensed property or home inspector. Any claim against this bond or letter of credit shall be heard by a third-party independent arbitrator. The decision of the arbitrator shall be final. Damages awarded by the arbitrator shall be paid to the 'Not a Part' landowner from the bond.

Arbitration cost to be borne by the project developer and selection of arbitrator to be agreed on by the parties.

22. Amendment or Cancellation.

22.1 Amendment by Mutual Consent. Except as otherwise provided in Section 22.4, this Agreement may be amended in writing from time to time by mutual consent of the Parties hereto and in accordance with the procedures of State law and the Municipal Code. 421
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22.2 Insubstantial Amendments. The City Manager is authorized to approve insubstantial amendments to this Agreement on behalf of the City without a hearing before or action by the Planning Commission or City Council. “Insubstantial amendments” means amendments to this Agreement which do not relate to (1) the term of the Agreement; (2) the permitted uses of the Property; (3) the reservation or dedication of land; (4) the location and maintenance of on-site and off-site improvements; (5) the density or intensity of use of the Project; (6) the maximum height or size of proposed buildings or (7) monetary contributions by Landowner required by this Agreement. All other amendments shall require approval by the City Council in accordance with the Development Agreement Law.

22.3 Amendment of Project Approvals. Except as otherwise provided in Section 22.4, any amendment of Project Approvals relating to: (1) the permitted use of the Property; (2) provision for reservation or dedication of land; (3) the density or intensity of use of the Project; (4) the maximum height or size of proposed buildings; (5) monetary contributions by the Landowner; (6) the location and maintenance of on-site and off-site improvements; or (7) any other issue or subject not identified as an “insubstantial amendment” in Section 22.2 of this Agreement, shall require an amendment of this Agreement. Other amendments of the Project Approval(s) shall not require amendment of this Agreement unless the amendment of the Project Approval(s) relates specifically to some provision of this Agreement.

22.4 Limitation on Number of Units. Landowner acknowledges and agrees that the development of this Project shall not exceed three thousand and four (3,004) residential units. Landowner expressly waives its rights under the Development Agreement Law to request an amendment to this Agreement or the Project Approvals for the purpose of increasing the number of units for this Project to more than three thousand and four (3,004) residential units.

23. Rights and Duties of Mortgage Lenders in Possession of Property. Any Mortgage Lender (―Mortgage Lender) who comes into possession of the Property, or any portion thereof, pursuant to a foreclosure of a Mortgage, or deed in lieu of such foreclosure, shall not be eligible to apply for, receive, or exercise any rights under this Agreement or any of the Project Approvals which were vested in its predecessor in title prior to the time that the Mortgage Lender comes into possession, until the Mortgage Lender contractually assumes all of the obligations of its predecessor in title under this Agreement with respect to such property, including those obligations which accrued prior to the time that the Mortgage Lender came into possession of such property. The Mortgage Lender shall be entitled to the rights of this Agreement upon presentation to the City of a written agreement between the Landowner (or Subsequent Landowner) and the Mortgage Lender clearly indicating the transfer and/or assignment and assumption of the Landowner’s obligations under the Agreement.

Any such assignment and assumption by the Mortgage Lender in possession and title shall be to the satisfaction of and in a form acceptable to the City Attorney, and shall be effective when the Mortgage Lender executes and delivers to the City Clerk an express agreement to contractually assume all of the obligations of its immediate predecessor in title under this Agreement with respect to all of the Property, or portion thereof, to which it has come into possession.
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24. Annual Review of Agreement.

24.1 Review Date. The annual review date of this Agreement (the ―Review Date‖) as required by Development Agreement Law shall be approximately twelve (12) months from the Effective Date and every twelve (12) months thereafter.

24.2 Procedures. The procedures for annual review shall be as set forth in the Development Agreement Law.

24.3 Fee for Annual Review. The cost for the City’s annual review of this Agreement shall be paid by Landowner.

25. Default.

25.1 Default. The failure of either party to perform any obligation or duty under this Agreement within the time required by this Agreement shall constitute an event of default. (For purposes of this Agreement, a party asserting that the other party is in default shall be referred to as the "Complaining Party" and the other party shall be referred to as the "Defaulting Party.")

25.2 Notice. The Complaining Party may not place the Defaulting Party in default unless it has first given written notice to the Defaulting Party, specifying the nature of the default and the manner in which the default may be cured, if known to the Complaining Party. Any failure or delay by the Complaining Party in giving such notice shall not waive such default or waive any of the Complaining Party's remedies.

25.3 Cure. The Defaulting Party shall have thirty (30) days from the receipt of notice to cure the default. If the default cannot be reasonably cured within such time, the default cure shall be deemed cured if: (1) the cure is commenced at the earliest practicable date following receipt of notice; (2) the cure is diligently prosecuted to completion at all times thereafter; (3) at the earliest practicable date (but in no event later than thirty (30) days after receiving the notice of default), the Defaulting Party provides written notice to the Complaining Party that the cure cannot be reasonably completed within such thirty (30) day period; and (4) the default is cured at the earliest practicable date, but in no event later than ninety (90) days after receipt of the first notice of default.

25.4 Remedies. If the Defaulting Party fails to cure a default in accordance with the foregoing, the Complaining Party shall have the right to terminate this Agreement upon notice to the Defaulting Party and, except as provided in Section 25.7, may pursue all remedies available at law or in equity, including specific performance and injunctive relief.

25.5 Additional Procedures and Remedies. The parties acknowledge that the foregoing default procedures and remedies are in addition to, and not in lieu of, the procedures and remedies set forth in City Council Resolutions 88-111 and 96-62, and Landowner waives the argument that any default taken against Landowner is not valid for failing to comply with the procedures and remedies set forth in City Council Resolutions 88-111 and 96-62.

25.6 Building Permits. In addition to and not in lieu of its other remedies, in the event that the City gives Landowner a notice of default and opportunity to cure as provided 423
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in Section 25, the City shall have the right to withhold issuance of any building permits for the Project, provided there is a nexus between the default and the structure for which the permit is being withheld. Such withholding shall cease when the default is cured in accordance with this Agreement. For purposes of this Section 25.6, a nexus shall be deemed to exist if the default involves the failure of Developer to timely pay fees or undertake or complete construction of the Improvements, the golf course, any park facilities, or any public improvement identified in this Agreement, the Mitigation Monitoring and Reporting Program, the Comprehensive Financing Agreement, the Comprehensive Development Phasing Plan, or any subsequent approval by the City related to the Project.

25.7 Waiver of Damages. Notwithstanding anything in this Agreement to the contrary, the parties acknowledge that the City would not have entered into this Agreement had it been exposed to liability for damages from Landowner, and that therefore, Landowner hereby waives all claims for damages against the City for breach of this Agreement. Landowner further acknowledges that under the Development Agreement Law, land use approvals (including development agreements) must be approved by the City Council and that under law, the City Council's discretion to vote in any particular way may not be constrained by contract. Landowner therefore waives all claims for damages against the City in the event that this Agreement or any Project Approval is: (1) not approved by the City Council or (2) is approved by the City Council, but with new changes, amendments, conditions or deletions to which Landowner is opposed, subject to Landowner’s rescission rights under Section 25.8. Landowner further acknowledges that as an instrument which must be approved by ordinance, a development agreement is subject to referendum; and that under law, the City Council's discretion to avoid a referendum by rescinding its approval of the underlying ordinance may not be constrained by contract, and Landowner waives all claims for damages against the City in this regard.

25.8 Rescission. In the event that Landowner believes that the purposes of this Agreement have been frustrated by the City Council's approval of this Agreement or any Project Approval with new changes, amendments, conditions or deletions to which Landowner is opposed, Landowner shall have ten (10) days after such approval in which to provide notice to the City that this Agreement shall be rescinded, without any further liability of the parties.

26. Insurance and Indemnity.

26.1 Indemnification, Defense and Hold Harmless. Landowner shall indemnify, defend, and hold harmless to the fullest extent permitted by law, the City (as defined in this Agreement) from and against any and all claims, liability, loss, damage, expense, costs (including without limitation costs and fees of litigation) of every nature arising out of or in connection with the Project, the Project Approvals or the Property (including any challenge to the validity of any provision of this Agreement or the Project Approvals, and including any actions or inactions of Landowner's contractors, subcontractors, agents, or employees in connection with the construction, improvement, operation, or maintenance of the Property and the Project), or Landowner's failure to comply with any of its obligations in this Agreement, or Landowner's failure to comply with any current or prospective Law; provided, however, that Landowner shall have no obligations under this section for such loss or damage which was caused by the sole negligence or willful misconduct of the City, or with respect to the maintenance, repair or condition of any Improvement after dedication to and acceptance by the City or another public entity (except as provided in an improvement agreement or warranty
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bond). This indemnification obligation shall survive this Agreement and shall not be limited by any insurance policy, whether required by this Agreement or otherwise.

26.2 Insurance.

26.2.1. Public Liability and Property Damage Insurance. At all times that Landowner is constructing any Improvements, Landowner shall maintain in effect a policy of comprehensive general liability insurance with a per-occurrence combined single limit of one million dollars ($1,00,000) and a deductible of not more than fifty thousand dollars ($50,000) per claim. The policy so maintained by Landowner shall name the City as an additional insured and shall include either a severability of interest clause or cross-liability endorsement.

26.2.2. Workers’ Compensation Insurance. At all times that Landowner is constructing any Improvements, Landowner shall maintain workers’ compensation insurance for all persons employed by Landowner for work at the Project site. Landowner shall require each contractor and subcontractor similarly to provide workers’ compensation insurance for its respective employees. Landowner agrees to indemnify the City for any damage resulting from Landowner’s failure to maintain any such insurance.

26.2.3. Evidence of Insurance. Prior to commencement of construction of any Improvements, Landowner shall furnish City satisfactory evidence of the insurance required in Sections 26.2.1 and 26.2.2 and evidence that the carrier is required to give the City at least fifteen (15) days prior written notice of the cancellation or reduction in coverage of a policy. The insurance shall extend to the City, its elective and appointive boards, commissions, officers, agents, employees and representatives and to Landowner performing work on the Project.

27. Binding Effect on Successors.

27.1 Assignment.

27.1.1. Landowner may not assign its interests under this Agreement without the: (1) written consent of the City Manager, which consent shall not be unreasonably withheld; and (2) execution by Landowner and the assignee of the form of assignment attached hereto as Exhibit N. Upon such assignment and assumption, Landowner shall be released from any further liability or obligation hereunder related to that portion of the Property so conveyed, and the Successor shall be deemed to step into the shoes of Landowner for purposes of this Agreement with respect to such conveyed property. For purposes of this section, it shall not be unreasonable for the City Manager to withhold consent unless and until the proposed assignment demonstrates that it has the financial capability and experience needed to complete development of the Project or respective portions thereof, in the case of a partial assignment, and in accordance with the terms of this Agreement.

27.1.2. Any attempt to assign any rights under this Agreement other than by executing the form of assignment attached hereto at Exhibit N shall be void and constitute a default under this Agreement. Notwithstanding the foregoing, private parties who purchase an individual parcel defined by an approved and recorded final subdivision map that has been improved with a dwelling structure shall not be required to execute the form of assignment attached hereto as Exhibit N, shall not be considered Successors, and this Agreement shall not be binding upon them.
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27.2 Subsequent Assignments. Any Successor may assign its rights under this Agreement by complying with the procedures set forth in this Agreement.

27.3 Runs with the Land. Except as otherwise provided in this Agreement, all of the provisions, rights, terms, covenants, and obligations contained in this Agreement shall be binding upon the Parties and their respective heirs, successors and assignees, representatives, lessees, and all other persons acquiring the Property, or any portion thereof, or any interest therein, whether by operation of law or in any manner whatsoever. All of the provisions of this Agreement shall be enforceable as equitable servitudes and shall constitute covenants running with the land pursuant to applicable laws, including, but not limited to, Section 1466 of the Civil Code of the State of California. Each covenant to do, or refrain from doing, some act on the Property hereunder, or with respect to any owned property: (a) is for the benefit of such properties and is a burden upon such properties; (b) runs with such properties; and (c) is binding upon each Party and each successive owner during its ownership of such properties or any portion thereof, and shall be a benefit to and a burden upon each Party and its property hereunder and each other person succeeding to an interest in such properties.

28. Miscellaneous.

28.1 Prevailing Wages. Landowner shall pay prevailing wages, and shall direct its contractors and other parties with which it has a contractual relationship with respect to the Project, to pay prevailing wages only if the same is required by the Prevailing Wage Law (Labor Code section 1720 et seq.). Landowner's indemnification, defense and hold harmless obligations under Section 26.1 shall extend to any failure to pay prevailing wages in connection with the Project, only as required by State law.

28.2 Estoppel Certificate. Either Party may at any time request the other Party to certify in writing that: (1) this Agreement is in full force and effect; (2) this Agreement has not been amended except as identified by the other Party; and (3) to the best knowledge of the other Party, the requesting Party is not in default, or if in default, the other Party shall describe the nature and any amount of any such default. The other Party shall use its best efforts to execute and return the estoppel certificate to the requesting Party within thirty (30) days of the request.

The City Manager shall have authority to execute such certificates on behalf of the City.

28.3 Recordation. This Agreement shall not be operative until recorded with the Yolo County Recorder's office. Landowner shall record this Agreement at its expense with the County Recorder's office within ten (10) days of the Effective Date, and shall cause any amendment to this Agreement or any instrument affecting the term of this Agreement to be recorded within ten (10) days from date on which the same become effective. Any amendment to this Agreement or any instrument affecting the term of this Agreement which affects less than all of the Property shall contain a legal description of the portion thereof that is the subject of such amendment or instrument. Alternatively, Landowner and City may execute the instrument entitled “Memorandum of Development Agreement” attached hereto as Exhibit K, which shall be recorded against the Property, in lieu of recording the entire Agreement.

28.4 Notices. All notices required by this Agreement or the Development Agreement Law shall be in writing and personally delivered or sent by certified mail, postage prepaid, return receipt requested.
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Notice required to be given to the City shall be addressed as follows:

CITY OF WEST SACRAMENTO
1110 West Capitol Avenue
West Sacramento, CA 95691
ATTN: Public Works and Community Development Director
Notice required to be given to the Landowner shall be addressed as follows:

ASB Southport II, LLC
Mr. David Stroud
1107 Kentucky Street
Fairfield, CA 94533-5515
Ms. Debra Yarbrough Russo
4630 Westamerica Drive, Ste A
Fairfield, CA 94534
Either Party may change the address stated herein by giving notice in writing to the other Party, and thereafter notices shall be addressed and transmitted to the new address. All notices shall be deemed received on the earlier of the date that personal delivery is effected or the date shown on the return receipt.

28.5 References to Municipal Code. This Agreement contains references to articles and sections of the City’s Municipal Code. If, after the Effective Date, the City amends or renumbers its Municipal Code, then the references in this Agreement shall be understood to apply to the amended or renumbered Municipal Code.

28.6 Third Party Beneficiaries. This Agreement is entered into for the sole benefit of the Parties and any Successors. No other party shall have any cause of action or the standing to assert any rights under this Agreement.

28.7 Force Majeure. Neither Party shall be liable for, and both Parties shall be excused from, any failure to deliver or perform or for delay in delivery or performance (except any obligation to pay any sum of money) due to any act of God. The foregoing shall not apply to floods that affect the Property. The Party claiming an extension due to Force Majeure shall send written notice to the other Party within thirty (30) days from the commencement of the cause describing the circumstances.

28.8 Bankruptcy. The obligations of this Agreement shall not be dischargeable in bankruptcy.

28.9 Attorneys’ Fees and Costs in Legal Actions By Parties to the Agreement. Should any legal action be brought by either Party for breach of this Agreement or to enforce any provisions herein, the prevailing Party to such action shall be entitled to reasonable attorneys’ fees, court costs, and such other costs as may he fixed by the Court.

28.10 Attorneys’ Fees and Costs in Legal Actions By Third Parties to the Agreement. If any person or entity not a party to this Agreement initiates an action at law or in equity to challenge the validity of any provision of this Agreement or the Project Approvals, the Parties shall cooperate and appear in defending such action. Landowner shall bear its own costs 427
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of defense as a real party in interest in any such action, and Landowner shall reimburse City for all reasonable court costs and attorneys’ fees expended by City in defense of any such action or other proceeding, provided that City reasonably cooperates with Landowner in the defense of such action.
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28.11 Liability of City Officials. No City official or employee shall be personally liable under this Agreement.

28.12 Delegation. Any reference to any City body, official or employee in this Agreement shall include the designee of that body, official or employee, except where delegation is prohibited by law.

28.13 Severability. Should any provision of this Agreement be found invalid or unenforceable by a court of law, the decision shall affect only the provision interpreted, and all remaining provisions shall remain enforceable.

28.14 Integration. This Agreement constitutes the entire understanding and agreement of the Parties with respect to the subject matter hereof and supersedes any previous oral or written agreement. This Agreement may be modified or amended only by a subsequent written instrument executed by all of the Parties.

28.15 Counterparts. This Agreement may be signed in one (1) or more counterparts, and will be effective when all of the Parties have affixed their signatures to the counterparts, at which time the counterparts together shall be deemed one (1) original document; provided, however, that all executed counterparts are provided to the City Clerk.

28.16 Interpretation. The Parties acknowledge that this Agreement has been negotiated by both Parties and their legal counsel and agree that this Agreement shall be interpreted as if drafted by both Parties.

28.17 Inconsistency. In the event of any conflict or inconsistency between the provisions of this Agreement and the Project Approvals or Exhibits, this Agreement shall prevail.

28.18 Incorporation. The Recitals, Exhibits, and all defined terms in this Agreement are part of this Agreement.

28.19 Compliance with Laws. In connection with its performance under this Agreement, Landowner shall comply with all applicable present and prospective laws.

28.20 Applicable Law and Venue. This Agreement shall be construed and enforced in accordance with the laws of the State of California without regard to principles of conflicts of law. In the event of litigation arising under this Agreement, venue shall reside exclusively in the Superior Court of the County of Yolo. 429
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28.21 Time of the Essence. Time is of the essence of this Agreement.

IN WITNESS WHEREOF, the parties hereto are executing this Agreement on the dates set forth below, to be effective as of the Effective Date. “CITY” “LANDOWNER”

CITY OF WEST SACRAMENTO, ASB SOUTHPORT II LLC,
a municipal corporation a California Limited Liability Company By: By:

Name: Name: David O. Stroud
Its: Its: Manager
Dated: , 2024 Dated: , 2024
ATTEST: BILLY G. AND LOUISE YARBROUGH TRUST,
A Revocable Family Trust
By:

Jennifer Cusmir,
City Clerk Name: Debra Yarbrough Russo.

Its: Manager.

Dated: , 2024
APPROVED AS TO FORM:

Jeffery Mitchell, City
Attorney
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EXHIBIT LIST
Exhibit A: Legal Description of the Property
Exhibit B: Diagram of the Property
Exhibit C: Project Description and Conceptual Maps for the Property Exhibit D: Land Use Table and Planning Areas Diagram
Exhibit E: Additional Yarbrough Design Guidelines Components Exhibit F: Affordable Housing Agreement Requirements
Exhibit G: Description of the Golf Course
Exhibit H: South River Road Bridge (Fire Station #42)
Exhibit I: Traffic Impact Fee Study
Exhibit J: Traffic Improvements and Funding Commitment
Exhibit K: Memorandum of Development Agreement
Exhibit L: Mitigation Monitoring and Reporting Program
Exhibit M: Comprehensive Financing Agreement
Exhibit N: Form of Assignment
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EXHIBIT A
Legal Description of the Property

THE LAND REFERRED TO HEREIN BELOW IS SITUATED IN THE CITY OF WEST

SACRAMENTO, COUNTY OF YOLO, STATE OF CALIFORNIA, AND IS DESCRIBED AS FOLLOWS:

PARCEL 1:

Lot 1, Boulevard Subdivision, filed March 4, 1913 in Book 2 of Maps, at Page 74, Yolo County Records.

EXCEPTING THEREFROM, all that portion thereof conveyed to Reclamation District 900 in Deed recorded April 8, 1915 in Book 89 of Deeds, at Page 11.

APN: 045-200-10-1, 045-200-19-1
PARCEL 2:

Lots 2 and 3, Boulevard Subdivision of West Sacramento Co’s Properties, filed March 4, 1913 in Book 2 of Maps, Page 74, Yolo County Records.

APN: 045-200-11-1
PARCEL 2A:

The land described as ―LOT LINE ADJUSTMENT NEW LOT 4 (2 MAPS 74) APN 045-270-18 WEST SACRAMENTO, CALIFORNIA‖ in Exhibit ―A‖ of that certain “CERTIFICATE OF COMPLIANCE” recorded June 6, 2007, as Instrument No. 2007-0020544, Yolo County Records.

APN: 045-270-18-1 (portion)
PARCEL 2B:

The land described as ―LOT LINE ADJUSTMENT NEW LOTS 47-A AND 48-A (2 MAPS 68) APN 045-230-06 WEST SACRAMENTO, CALIFORNIA‖ in Exhibit “B” of that certain “CERTIFICATE OF COMPLIANCE” recorded June 6, 2007, as Instrument No. 2007-0020544, Yolo County Records.

EXCEPTING THEREFROM, the mineral rights excepted in the Deed executed by Coast Service Company, a corporation, recorded January 25, 1944 in Book 187 of Official Records, Page 291, as follows:

Saving, excepting and reserving unto the Grantor, its successors and assigns from all the above A-1
873763.13
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described lands all oil, gas and minerals now or at any time hereafter situate therein and hereunder together with all easements and rights necessary or convenient for the production, storage and transportation thereof and the exploration and testing of the said real property and also the right to drill for, produce and use water from the said real property in connection with its drilling or mining operations thereon, however, that if the Grantor shall mine the said real property for minerals, it shall pay to the Grantee one half of 1/10 of the actual proceeds derived from the sale of minerals so mined and if it shall drill the said real property for oil or gas, it shall pay to the Grantee one half of 1/8 of the actual proceeds derived from the sale of all oil, gas, gasoline, asphaltum, or other hydrocarbon substances produced and saved and sold, or if the prevailing royalty rate for oil, or gas in the field is different from 1/8, then one half of such royalty share of such proceeds, but in no event more than one half of 1/6 thereof, deducting therefrom the same proportion of all taxes levied against the oil, gas and minerals herewith reserved, as the Grantee’s share of the proceeds bears to the total proceeds. If the mineral rights are not separately assessed, the Grantee’s share of any increase in taxes because of oil, gas or minerals, shall be determined and deducted on the same basis.

If the Grantor executes leases of all or any part of the said rights reserved hereby, it shall pay to the Grantee one half of the net amount received by it under any such leases. If the Grantor shall drill the said real property for oil, gas or other hydrocarbons or mine the same for minerals, it shall compensate the Grantee for any damage done to growing crops and improvements and shall pay to the Grantee the reasonable agricultural value of all land actually taken for the said purposes and if the Grantor leases said real property and secures an agreement from any such Lessee assuming tile covenants of the Grantor to so compensate the grantee, such Lessee drilling or mining the said real property shall along be liable under such covenants and the Grantor shall have no liability whatever hereunder in connection with such Lessees drilling or mining operations, and the Grantor shall not be liable in any event for any act of its Lessee, except that in those cases in which any such Lessee does not assume the said covenants of the Grantor to so compensate the Grantee, the Grantor shall bear the said expenses. If the Grantor, or any of its Lessees and the Grantee cannot agree with regard to the amount of such compensation, the same shall be determined from time to time as it becomes necessary to determine it by arbitration, the Grantor, or its Lessee, to appoint one arbitrator, and the Grantee another arbitrator, and the two so appointed to appoint a third and a decision of a majority to be conclusive; provided that the Grantor, or any of its Lessees, may exercise all of the rights reserved hereby at any time and from time to time without first being required to agree with respect to such compensation or having the same fixed by arbitration, and that such compensation shall be fixed either by agreement or arbitration after the Grantor, or any Lessee, has commenced and is prosecuting operations, and all parties agree to cooperate to the end that such compensation will be fixed by either of the saw methods within a reasonable time after the occasion for fixing the same arises. The covenants and provisions hereof shall inure to the benefit of and bind the successors, assigns and Lessees of the Grantor and the personal representatives, heirs, successors, Lessees and assigns of the Grantee.

The surface rights to the parcel or parcels of land above described and for a distance of not more than five hundred feet (500’) in depth and nothing herein contained shall in any way be construed to prevent, hinder or delay the free and unlimited right to mine, drill, bore, operate and remove from beneath tile surface of said land or lands, at any levels five hundred feet (500’) or more below the surface of said land for the removal of all oil, gas, minerals and other hydrocarbons situated therein or hereunder or producible therefrom, together with all water necessary in connection with its drilling or mining operations hereunder have been quitclaimed A-2
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by Deed recorded September 29, 1986 in Book 1801 of Official Records, Page 24.

EXCEPTING AND RESERVING THEREFROM a drill site area described as follows:

The South 295 feet of the West 295 feet of said Lot 37-A for a drill site.

APN: 045-270-18-1 (portion) & 045-230-06-1
PARCEL 3:

Lots 37-A, 38-A, 41-A, 42-A, 45-A, 46-A, 49-A and 50-A, West Sacramento Co’s Properties Subdivision A, filed January 7, 1913 in Book 2 of Maps, Page 68, Yolo County Records.

EXCEPTING THEREFROM, the mineral rights excepted in the Deed executed by Coast Service Company, a corporation, recorded January 25, 1944 in Book 187 of Official Records, Page 291, as follows:

Saving, excepting and reserving unto the Grantor, its successors and assigns from all the above described lands all oil, gas and minerals now or at any time hereafter situate therein and hereunder together with all easements and rights necessary or convenient for the production, storage and transportation thereof and the exploration and testing of the said real property and also the right to drill for, produce and use water from the said real property in connection with its drilling or mining operations thereon; however, that if the Grantor shall mine the said real property for minerals, it shall pay to the Grantee one half of 1/10 of the actual proceeds derived from the sale of minerals so mined and if it shall drill the said real property for oil or gas, it shall pay to the Grantee one half of 1/8 of the actual proceeds derived from the sale of all oil, gas, gasoline, asphaltum, or other hydrocarbon substances produced and saved and sold, or if the prevailing royalty rate for oil, or gas in the field is different from 1/8, then one half of such royalty share of such proceeds, but in no event more than one half of 1/6 thereof, deducting therefrom the same proportion of all taxes levied against the oil, gas and minerals herewith reserved, as the Grantee’s share of the proceeds bears to the total proceeds. If the mineral rights are not separately assessed, the Grantee’s share of any increase in taxes because of oil, gas or minerals, shall be determined and deducted on the same basis.

If the Grantor executes leases of all or any part of the said rights reserved hereby, it shall pay to the Grantee one half of the net amount received by it under any such leases. If the Grantor shall drill the said real property for oil, gas or other hydrocarbons or mine the same for minerals, it shall compensate the Grantee for any damage done to growing crops and improvements and shall pay to the Grantee the reasonable agricultural value of all land actually taken for the said purposes and if the Grantor leases said real property and secures an agreement from any such Lessee assuming tile covenants of the Grantor to so compensate the grantee, such Lessee drilling or mining the said real property shall along be liable under such covenants and the Grantor shall have no liability whatever hereunder in connection with such Lessees drilling or mining operations, and the Grantor shall not be liable in any event for any act of its Lessee, except that in those cases in which any such Lessee does not assume the said covenants of the Grantor to so compensate the Grantee, the Grantor shall bear the said expenses. If the Grantor, or any of its Lessees and the Grantee cannot agree with regard to the amount of such compensation, the same shall be determined from time to time as it becomes necessary to determine it by arbitration, the Grantor, or its Lessee, to appoint one arbitrator, and the Grantee A-3
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another arbitrator, and the two so appointed to appoint a third and a decision of a majority to be conclusive; provided that the Grantor, or any of its Lessees, may exercise all of the rights reserved hereby at any time and from time to time without first being required to agree with respect to such compensation or having the same fixed by arbitration, and that such compensation shall be fixed either by agreement or arbitration after the Grantor, or any Lessee, has commenced and is prosecuting operations, and all parties agree to cooperate to the end that such compensation will be fixed by either of the saw methods within a reasonable time after the occasion for fixing the same arises. The covenants and provisions hereof shall inure to the benefit of and bind the successors, assigns and Lessees of the Grantor and the personal representatives, heirs, successors, Lessees and assigns of the Grantee.

The surface rights to the parcel or parcels of land above described and for a distance of not more than five hundred feet (500’) in depth and nothing herein contained shall in any way be construed to prevent, hinder or delay the free and unlimited right to mine, drill, bore, operate and remove from beneath tile surface of said land or lands, at any levels five hundred feet (500’) or more below the surface of said land for the removal of all oil, gas, minerals and other hydrocarbons situated therein or hereunder or producible therefrom, together with all water necessary in connection with its drilling or mining operations hereunder have been quitclaimed by Deed recorded September 29, 1986 in Book 1801 of Official Records, Page 24.

EXCEPTING AND RESERVING THEREFROM a drill site area described as follows:

The South 295 feet of the West 295 feet of said Lot 37-A for a drill site.

APN: 045-230-04-1, 045-230-05-1
PARCEL 4:

Lot 39-A, Subdivision A‖ of West Sacramento Company’s Properties, filed August 8, 1913 in Book 2 of Maps, Page 68, Yolo County Records.

EXCEPTING THEREFROM an undivided one half interest in and to all oil, gas, petroleum, naphtha, other hydrocarbon substances and minerals of whatsoever kind and nature in, upon or beneath the herein above described property, Together with the right of entry and all other rights, including all rights of way and easements, which may be necessary for the development, production and removal of all such substances and minerals and the full enjoyment of the Grantor’s interest herein reserved, as set forth in Deed executed by the Federal Land Bank of Berkeley, a Corporation, to Howard 3. Reamer and Helen P. Reamer, his wife, dated February 25, 1941, and recorded July 17, 1941 in Book 155 of Official Records at Page 175, without, however, the right of surface entry and all oil, gas, petroleum, naphtha and other hydrocarbon substances and minerals of whatsoever kind and nature lying above a depth of 500 feet as relinquished and quitclaimed by Deed recorded August 19, 1991 in Book 2255 of Official Records at Page 38, Yolo County Records.

APN: 045-230-08-1
PARCEL 5:

All of Lot 34-A and a portion of Lots 33-A and 29-A of West Sacramento Company Properties A-4
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Subdivision A, as same appears of record on the map thereof, filed in Book 2 of Maps, Page 68, said portion of Lots 33-A and 29-A being more particularly described as follows:

BEGINNING at the Southwest corner of said Lot 29-A and extending thence North, along the lot lines a distance of 1056.00 feet to the Northwest corner of said Lot 33-A; thence East along the North line of said Lot 33-A, 691.90 feet; thence South 11.60 feet to the Northwest corner of S.L.S. No. 171; thence along the West line of said S.L.S. No. 771, South 0° 39’ 02‖ East a distance of 880.45 feet to a point within the right of way of Jefferson Boulevard; thence West

40.21 feet to the Northwesterly right of way line of said Jefferson Boulevard; thence continuing West a distance of 293.98 feet; thence South 164.00 feet to the South line of said Lot 29-A; thence West, along said South line of 29-A, a distance of 373.71 feet to the POINT OF BEGINNING.

APN: 045-230-16-1
PARCEL 6A:

That portion of Lot 33-A and Lot 29-A of Subdivision A that is situate to the East of the West line of S.L.S. No. 771 as said lots appear of record on the Map of West Sacramento Company Properties Subdivision A, which is filed in Book 2 of Maps, Page 68, Yolo County Records, and being described as follows:

BEGINNING at a point in the East line of said Lot 33-A that is situate South 11.60 feet from the Northeast corner thereof and extending thence from said point of beginning along the East line of said Lot, South 750.25 feet to the centerline of Jefferson Blvd.; thence along the center line of Jefferson Blvd., South 36° 13’ 30‖ West 197.61 feet to the West line of said S.L.S. No. 771; thence along said S.L.S. line, North 0° 39’ 02‖ West 909.72 feet to the Northwest corner of said S.L.S. No. 771; thence along the North line of Said S.L.S. No. 771, East 127.10 feet to the POINT OF BEGINNING.

EXCEPTING THEREFROM all oil, gas, minerals and other hydrocarbons lying in and under the property herein described, together with the right to drill for and explore for aid oil, gas and minerals and other hydrocarbons as reserved in Deed recorded May 22, 1957 in Book 513 of Official Records, Page 571, Yolo County Records.

PARCEL 6B:

A portion of Lot 33-A, West Sacramento Co’s Properties Subdivision A, filed January 7, 1913, in Book 2 of Maps, Page 68, Yolo County Records, described as follows:

BEGINNING at the Northeast corner of said Lot 33-A; running thence along the East line thereof South 11.60 feet to the North line of Swamp Land Survey No. 771~ thence along said North line West 127.10 feet to the East line of the parcel on land described in the Deed to Hideo Nishimura, et al., recorded March 21, 1957, in Book 509 of Official Records, Page 121; thence along said East line North 11.60 feet to the North line of said Lot 33-A; thence along said North line East 127.10 feet to the POINT OF BEGINNING.

APN: 045-230-14-1
A-5
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PARCEL 7:

Lots 16-A, 19-A, 24-A, 25-A and 28-A of West Sacramento Company’s Properties Subdivision A, filed in Book 2 of Maps, Page 68, Yolo County Records.

APN: 045-230-17-1; 045-240-05-1, 045-240-06-1
PARCEL 8:

Lots 17-A, 18-A, 26-A, 27-A and 35-A, West Sacramento Company’s Properties A, filed January 7, 1913 in Book 2 of Maps, Page 68, Yolo County Records.

EXCEPTING THEREFROM that portion lying within the parcel described in Deed to Reclamation District No. 900, recorded July 17, 1915 in Book 89 of Deeds, Page 11, Yolo County Records.

APN: 045-230-18-1, 045-230-20-1; 045-240-02-1, 045-240-04-1 PARCEL 9:

Lots 36A, 43A, 44A and S1A, Subdivision A of West Sacramento Company’s Property, filed January 7, 1913 in Book 2 of Maps, Page 68, Yolo County Records.

EXCEPTING THEREFROM the parcel of land described in the Deed to Reclamation District No. 900, recorded July 17, 1915 in Book 89 of Deeds, Page 11, Yolo County Records.

ALSO EXCEPTING from Lot 36A that portion described in Deed to the City of West Sacramento in Deed Recorded April 14, 2005 Instrument No. 2005-0017047, Yolo County Records.

APN: 045-230-02-1, 045-230-10-1, 045-230-27-1
PARCEL 1OA:

BEGINNING at the southwest corner of lot S of Boulevard Subdivision of West Sacramento Company’s Properties as said Lot 5 appears on the Map of Boulevard Subdivision of West Sacramento Company’s Properties in Book 2 of Maps, Page 74, Yolo County Records, said POINT OF BEGINNING being also the Northeast corner of Lot 48-A, of Subdivision ―A‖ of West Sacramento Company’s Properties filed August 8, 1913 in the Office of the County Recorder of said County of Yolo and running thence from said POINT OF BEGINNING East and along the South boundary of said Boulevard Subdivision of West Sacramento Company’s Properties, a distance of 1280.27 feet to the Southeast corner of Lot 6 of said Boulevard Subdivision of West Sacramento Company’s Properties; thence leaving said South boundary line of said Boulevard Subdivision of West Sacramento Company’s Properties and running South 36° 13’ 30‖ West 654.41 feet; thence East 156.52 feet to a point on the centerline of the main drainage canal, also South 528 feet from the Southeast corner of Lot 7 of said Boulevard Subdivision of West Sacramento Company’s Properties~ thence following the centerline of said line of said main drainage canal South 1509 feet; thence on a curve to the right with a radius of 75 feet a distance of 111.81 feet; thence West 1841.9 feet to the Southeast corner of Lot 39A of said Subdivision ―A‖ of West Sacramento Company’s Properties; thence leaving the centerline of A-6
437
873763.17
said main drainage canal and following the Eastern boundary of said Subdivision ―A‖ North 36° 13’ 30‖East 654.51 feet; thence West 119.90 feet; thence North 1584 feet to the POINT OF BEGINNING.

EXCEPTING THEREFROM an undivided 1/2 interest in and to all oil, gas, petroleum, naphtha, other hydrocarbon substances and minerals of whatsoever kind and nature in, upon, or beneath the herein above described property, together with the rights of entry and all other rights, including all rights of way and easements which may be necessary for the development, production and removal of all such substances and minerals and the full enjoyment of the Grantor’s interest herein reserved, as set forth in Deed executed by the Federal Land Bank of Berkeley, a Corporation to Howard J. Reamer and Helen P. Reamer, his wife, dated February 25, 1941 and recorded July 17, 1941 in Book 155 of Official Records, Page 175, without, however the right of surface entry and all oil, gas, petroleum, naphtha and other hydrocarbon substances and minerals of whatsoever kind and nature lying above a depth of 500 feet, as relinquished and quitclaimed by Deed, recorded August 19, 1991, Instrument No. 20791,Yolo County Records.

PARCEL 10B:

COMMENCING at the Southwest corner of Lot 5 of Boulevard Subdivision of West Sacramento Company’s Properties, filed in Book 2 of Maps, Page 74, Yolo County Records, said point of beginning being also the Northeast corner of Lot 48-A of Subdivision ―A‖ of West Sacramento Company’s Properties, filed in Book 2 of Maps, Page 68, Yolo County Records; thence East and along the South boundary of said Boulevard Subdivision of West Sacramento Company’s Properties, a distance of 1280.27 feet to the Southeast corner of Lot 6 of said Boulevard Subdivision of West Sacramento Company’s Properties; thence leaving said South boundary line of said Boulevard Subdivision of West Sacramento Company’s Properties and running South 36°13’30‖West 654.51 feet to the ACTUAL POINT OF BEGINNING; running thence East 756.52 feet to a point on the center line of the main drainage canal, also South 528 feet from the Southeast corner of Lot 7 of said Boulevard Subdivision of West Sacramento Company’s Properties; thence following the center line of said main drainage canal South to an angle point and West to the Southeast corner of Lot 39-A of said Subdivision ―A‖ of West Sacramento Company’s Properties; thence leaving the center line of said main drainage canal and following the Eastern Boundary of said Subdivision ―A‖ and its direct extension, North 36°13’30‖ East to the POINT OF BEGINNING.

EXCEPTING THEREFROM, that portion thereof lying within the lines of the parcel of land described in the Deed to Frank B. Anderson, et al., recorded May 18, 1915, in Book 87 of Deeds,