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HomeMy WebLinkAboutMINUTES - 01251994 - H.5 • �E D�A- _:o H.5 ` ' Contra TO: ' BOARD OF SUPERVISORS H _ Costa FROI�l: HARVEY E. BRAGDON ,.' County DIRECTOR OF COMMUNITY DEVELOPMENT DATE: December 21, 1993 BUBJECT: Development Agreement Between -Contra Costa County and Walt- Foskett to the Development Known as Subdivision 7725, Rezoning 2976-RZ and Final Development Plan 3038-91 SPECIFIC REQUEST(S) OR RECOMMENDATIONS) i BACKGROUND AND JUSTIFICATION RECOMMENDATIONS 1. Accept the Environmental Documentation prepared for this project as being adequate. 2. Find the attached development agreement is consistent with the County General Plan and Conditions of Approval for the project with the Zoning Administrator's modification: ' Contribute $1,000 per unit to one of the following: A. Alamo area planning efforts. B. Affordable Housing Trust Fund. C.. Homeless Shelter Trust Fund. D. Existing drainage deficiencies in the Alamo area. 3. Adopt the attached ordinance for Walt Foskett relative to the development known as SUB 7725 Development Plan 3038-91 and Rezoning 2976-RZ. 4. Authorize the Director of Community Development to sign and execute the agreement after it has been duly -signed by Walt Foskett. FISCAL IMPACT Authorization of the agreement would enhance funding for needed public projects. BACKGROUND/REASONS FOR RECOMMENDATION This item was heard by the Zoning Administrator on December 13, 1993. Prior to the public hearing staff met with the developer to negotiate certain items which would be beneficial to the public such .as contributions to: 1. Alamo Area Planning. Efforts 2. Affordable Housing Trust Fund 3. Homeless Shelter Trust Fund 4. Existing Drainage Deficiencies in Alamo The applicant rejected the above listed items. Due to the impasse reached by . staff the applicant, it was agreed the development agreement would proceed to public hearing without staff support. The Zoning Administrator considered the developer's request as presented the Agreement did not provide any benefit to the public for the additional entitlement the developer was requesting. The Zoning Administrator determined ' a $1,000.00 per unit contribution to one of the previously identified funds, as determined by the Board of Supervisors, would be a reasonable request to include in the agreement. CONTINUED ON ATTACHMENT: X YES SIGNATURE �.` RECOMMENDATION OF COUNTY ADMINISTRATOR RECOMMENDATION OF BOARD COMMITT APPROVE OTHER 1. SIGI(ATURE(S) : ACTION OF BOARD ON January 25 . 1994 APPROVED AS RECOMMENDED x OTHER x This is the time heretofore noticed by the Clerk of the Board of Supervisors for hearing on the recommendation of the Zoning Administrator on a request to review and approve a Development Agreement between Contra Costa County and Walt Foskett relative to the development known as rezoning application 2976-RZ, Development Plan No. 3038-91 and Vesting Tentative Subdivision Map 7725 in the Alamo area. Dennis Barry, Community Development Department, presented the staff report on the proposed development agreement, and he commented on the suggested. options for contribution under recommendation 2 and he advised that the applicant had rejected those suggested contributions. Mr. Barry commented on Article 19, Prevailing Provisions, with which the developer' s legal counsel has verbally indicated concurrence and he advised the Board of the above listed recommendations. Mark Armstrong, P.O. Box 218, Danville, representing the applicant, Walt Foskett, spoke in support of the development agreement and he requested that the contribution be reduced or eliminated, commenting on the cost of the Environmental Impact Review to the Fosketts. Mr. Armstrong advised that if the fee were imposed that Mr. Foskett would prefer it be applied to existing drainage deficiencies. Supervisor McPeak requested clarification on the options for fee contribution. Mr. Barry discussed the various options that had been suggested. Supervisor McPeak suggested that Mr. Foskett might make a voluntary contribution to the Homeless Trust Fund in the total amount of $3, 000 in consideration of all the EIR costs that he had borne. Supervisor Bishop commented on the history of the project and she expressed support for the option of a contribution to the Alamo area planning efforts and she suggested a compromise of a contribution of $750 per unit and that,at the applicant's suggestion, address drainage deficiencies in the Alamo area. Supervisor Bishop moved that the contribution be reduced to $750 per unit and that it go toward existing drainage deficiencies in the Alamo area. The motion died for 'lack of a second. Supervisor Torlakson moved that the contribution be $3, 000 to go to the Homeless Trust Fund. Supervisor Smith seconded the motion. IT IS BY THE BOARD ORDERED that recommendations 2, 2 with option C for $3, 000 total contribution, 3 and 4 are APPROVED; and Ordinance No. 94-9, relative to the Walt Foskett Development Agreement is ADOPTED. 90TE OF SUPERVISORS I HEREBY CERTIFY THAT THIS IS A UNANIMOUS (ABSENT TRUE AND CORRECT COPY OF AN AYES: 2.4,5, 1 NOES: 3 ACTION TAKEN AND ENTERED ON THE ABSENTS - ABSTAIN: - MINUTES OF THE BOARD OF SUPERVISORS ON THE DATE SHOWN. Contact:Debbie J. Aime - 646-2033 Orig: Community Development Department ATTESTED li-anuary 25 1994 cc: Walt Foskett PHIL BATCHELOR, CLERK OF County Counsel THE BOARD OF SUPERVISORS Public Works 10M CO Y ADMINISTRATOR Assessor Building Inspection 8Y , DEPUTY Constra Costa Co. Fire Prot. District 2 . 'ti. • J . 1 r , ' ORDINANCE NO. 94 - 9 (WALT POSRETT DEVELOPMENT AGREEMENT) The Board of Supervisors of the County of Contra Costa ordains as follows: Section I: The Board hereby finds that the provisions of the Development Agreement between the County of Contra Costa and Walt Foskett, relating to 5.84 acres of real property located at 100 Vernal Drive in Alamo, which is on file with the Clerk of the Board, and which has been recommended for approval by the County Zoning Administrator, is consistent with the County's General Plan. Section II: The Board hereby finds that adoption of this ordinance and approval of the Development Agreement complies with the requirements of ,the California Environmental Quality Act (CEQA) . The Board hereby finds that no further environmental review is required since the EIR prepared for the Foskett General Plan Amendment assessed the environmental impacts of this Development Agreement . which implements the project reviewed therein. The Board further finds that no further environmental documentation is required in that i) development pursuant to the Development Agreements constitutes a residential project within the meaning of CEQA; (ii) substantial changes are not proposed in the Development Agreement which will require major revisions to the EIR; (iii) substantial changes will not occur with respect to the circumstances under which the Development Agreement is being undertaken which will require major revisions in the EIR, and (iv) no new information has become or is expected to become available which will relate to significant effects not previously discussed in the EIR. Section III: The Board hereby approves, pursuant to the authorization provided in sections 65864 et seq. of the Government Code of the State of California, the Development Agreement between the County of Contra Costa and Walt Foskett. The Board hereby authorizes the Director of Community Development to sign the Development Agreement on behalf of the County of Contra Costa. 1 Section IV: If any section, subsection, subdivision, paragraph, sentence, clause or phrase of this ordinance is for any reason held to be unconstitutional or invalid, such a decision shall not affect the validity of the remaining portions of this ordinance. The Board hereby declares that it would have passed each section, subsection, subdivision, paragraph, sentence, clause or phrase of this ordinance irrespective of the unconstitutionality or invalidity of any section, subsection, subdivision, paragraph, sentence, clause or phrase. Section V: This ordinance becomes effective 30 days after passage, and within 15 days of passage shall be published once with the names of supervisors voting for and against it in the Contra Costa TImes, a newspaper published in this County. PASSED on January 25, 1994 by the following votes. AYES: Supervisors Smith, McPeak, Torlakson and Powers NOES: Supervisor Bishop ABSENT: None ABSTAIN: None ATTEST: PHIL BATCHELOR Clerk of the B rd of Super isors JI By: Deputy Clerk Board Chair 2 94-9 r i a • NS ORDINANCE NO. 94 - 9 (WALT FOSRETT DEVELOPMENT AGREEMENT) The Board of Supervisors of the County of Contra Costa ordains as follows: Section I: The Board hereby finds that the provisions of the Development Agreement between the County of Contra Costa and Walt Foskett, relating to 5.84 acres of real property located at 100 Vernal Drive in Alamo, which is on file with the Clerk of the Board, and which has been recommended for approval by the County Zoning Administrator, is consistent with the County's General Plan. Section II: The Board hereby finds that adoption of this ordinance and approval of the Development Agreement complies with the requirements of the California Environmental Quality Act (CEQA) . The Board hereby finds that no further environmental review is required since the EIR prepared for the Foskett General Plan Amendment assessed the environmental impacts of this Development Agreement which implements the project reviewed therein. The Board further finds that no further environmental documentation is required in that i) development pursuant to the Development Agreements constitutes a residential project within the meaning of CEQA; (ii) substantial changes are not proposed in the Development Agreement which will require major revisions to the EIR; (iii) substantial changes will not occur with respect to the circumstances under which the Development. Agreement is being undertaken which will require major revisions in the EIR, and (iv) no new information has become or is expected to become available which will relate to significant effects not previously discussed in the EIR. Section III: The Board_ hereby approves, pursuant to the authorization provided in sections 65864 et seq. of the Government Code of the State of California, the Development Agreement between the County of Contra Costa and Walt Foskett. The Board hereby authorizes the Director of Community Development to sign the Development Agreement on behalf of the County of Contra Costa. 1 , r 1 Section IV: If any section, subsection, subdivision, paragraph; sentence, clause or phrase of this ordinance is for any reason held to be unconstitutional or invalid, such a decision shall not affect the validity of the remaining portions of this ordinance. The Board hereby declares that it would have passed each section, subsection, subdivision, paragraph, sentence, clause or phrase of this ordinance irrespective of the unconstitutionality or invalidity of any section, subsection, subdivision, paragraph, sentence, clause or phrase. Section V: This ordinance becomes effective 30 days after passage, and within 15 days of passage shall be published once with the names of supervisors voting for and against it in the Contra Costa TImes, a newspaper published in this County. PASSED on January 25, 1994 by the following votes. AYES: Supervisors Smith, McPeak, Torlakson and Powers NOES: Supervisor Bishop ABSENT: None ABSTAIN: None ATTEST: PHIL BATCHELOR Clerk of the B rd of Super isors 1 By: A A.1 ✓ Deputy Clerk Board Chair 2 94-9 • 1, 1 ORDINANCE NO. 94 (WALT FOSKETT DEVELOPMENT AGREEMENT). '. The Board of Supervisors of the County of Contra Costa ordains as­:- follows: Section I: . The Board hereby finds that 'the provisions of the Development Agreement between the County of Contra Costa and Walt Foskett, relating to 5.84 acres of real property located at 100 Vernal Drive in Alamo, which is on file with the--Clerk of the Board, and which has been recommended for approval- by the County Zoning Administrator, is consistent with the Countyls General Plan. Section.II: The Board hereby finds that adoption of this ordinance and approval of the Development Agreement complies with the requirements of the California Environmental. Quality Act (CEQA). The Board hereby finds that no further environmental review is required since the EIR prepared for the Foskett General Plan Amendment assessed the environmental impacts of this Development Agreement--which implements the project reviewed therein. The Board further finds that no further environmental documentation is required in that i) development pursuant to the Development Agreements constitutes a residential project within the meaning of CEQA; (ii) substantial changes are not proposed in the Development Agreement which will require major revisions to the EIR; (iii) substantial changes will not occur with respect to the circumstances under -which the Development Agreement is being undertaken which will require major revisions in the EIR, and (iv) no new information has become or is expected to become available which will .relate to significant effects not previously discussed in the EIR. . Section III: The Board .hereby approves, pursuant to the authorization provided in sections 65864 et seq. of the Government Code of the State of California, the Development Agreement between the County of Contra Costa and Walt Foskett. . The Board hereby authorizes the Director of Community Development to sign the Development Agreement on behalf of- the County of Contra Costa. Section IV: If any section, subsection, subdivision, paragraph, sentence, clause or phrase of this ordinance is for any reason held to be unconstitutional or invalid, such a decision shall not affect the validity of the remaining portions of this ordinance. The Board hereby declares that it would have passed each section, subsection, subdivision, paragraph, sentence, clause or .phrase of this ordinance irrespective of the unconstitutionality or invalidity of any section, subsection, subdivision, paragraph, sentence, clause or phrase. Section V: This ordinance becomes effective 30 days after passage, and within 15 days of passage shall be published once. with the names of supervisors voting for and against it in the Contra Costa TImes, a newspaper published in this County. PASSED-on by the following votes. AYES: NOES: ABSENT: ABSTAIN: ,' ATTEST: Clerk of the Board of Supervisors By: Board Chair 1 RECORDING REQUESTED BY AND WHEN RECORDED MAIL TO: Mark L. Armstrong, Esq. GAGEN, MCCOY, McMAHON & ARMSTRONG 279 Front Street P.O. Box 218 Danville, CA 94526 DEVELOPMENT AGREEMENT BETWEEN THE COUNTY OF CONTRA COSTA AND WALT FOSKETT RELATING TO THE DEVELOPMENT OF CERTAIN PROPERTY IN THE ALAMO AREA AS PRESENTED TO ZONING ADMINISTRATOR TABLE OF CONTENTS PAGE RECITALS . . . . . . . . . . . . . . . . . . . . . . . . . . 1 AGREEMENT . . . . . . . . . . . . . . . . . . . . . . . . . . 5 ARTICLE 1. EFFECTIVE DATE AND TERM . . . . . . . . . . 5 Section 1.01. Effective Date. . . . . . . . . . . 5 Section 1.02. Term. . . . . . . . . . . . . . . . 5 ARTICLE 2. DEFINITIONS . . . . . . . . . . . 6 ARTICLE 3. OBLIGATIONS OF DEVELOPER AND COUNTY . . . . 8 Section 3.01. Obligations of Developer. . . . . . 8 Section 3.02. Obligations of County. . . . . . . . 8 ARTICLE 4. DEVELOPMENT OF PROJECT AND PROJECT SITE . . 9 Section 4.01. Vested Right to Develop. . . . . . . 9 Section 4.02. Permitted Uses, Etc. , Vested by this Agreement. . . . . . . . . . . 9 Section 4.03'. Applicable Law. . . . . . . . . . . 9 Section 4.04. State and Federal Law. . . . . . 14 Section 4.05. Timing of Project Construction and Completion. . . .. . . . . . . . . . 14 ARTICLE 5. AMENDMENT OF AGREEMENT . . . . . . . . . . 15 ARTICLE 6. COOPERATION-IMPLEMENTATION . . . . . . . . . 15 Section 6.01. Processing. . . . . . . . . . . . . 15 Section 6.02. Other Governmental Permits. . . . . 17 Section 6.03. Eminent Domain Po- ers. . . . . . . . 17 ARTICLE 7. COOPERATION IN THE EVENT OF LEGAL CHALLENGE . . . . . . . . . . . . . . . 18 ARTICLE 8. DEFAULT; REMEDIES; TERMINATION . . . . . . . 18 Section 8.01. Default and Remedies. . . . . . . . 18 Section 8.02. Annual Review. . . . . . . . . . . . 19 Section 8.03. Excusable Delays; Extension of Time of Performance. . . . . 21 Section 8.04. Legal Action. 21 Section 8.05. California Law. 22 5 07 ARTICLE 9. DEFENSE AND INDEMNITY . . . . . . . . . . 22 ARTICLE 10. NO AGENCY, JOINT VENTURE OR PARTNERSHIP 23 ARTICLE 11. MISCELLANEOUS . . . . . . . . . . . . . . . 23 Section 11.01. Incorporation of Recitals. . . . . . 23 Section 11.02. Severability. . . . . . . . . . 23 Section 11.03. Further Actions. . . . . . . . . . . 23 Section 11.04. Interpretation of Agreement. . . . . 24 ARTICLE 12. NOTICES . . . . . . . . . . . . . . . . . . 24 ARTICLE 13. ASSIGNMENT . . . . . . . . . . . . . . . . 25 ARTICLE 14. MORTGAGEE PROTECTIONS . . . . . . . . . . . 26 Section 14.01. Mortgagee Protection. . . . . . . . 26 Section 14.02. Notice of Default to Mortgagee. . . 27 Section 14.03. Opportunity to Cure. . . . . . . . . 27 Section 14.04. Approval by Mortgagees. . . . . . . 28 Section 14.05. Notice of Proposed Amendment to Mortgagee. . . . . . . . . . . . . . 29 ARTICLE 15. INCORPORATION OR ANNEXATION . . . . . . . . 29 ARTICLE 16. NOTICE OF COMPLIANCE . . . . . . . . . . . 29 ARTICLE 17. ENTIRE AGREEMENT, COUNTERPARTS AND EXHIBITS . . . . . . . . . . . . . . . . . 30 ARTICLE 18. RECORDATION OF DEVELOPMENT AGREEMENT .' . . 31 SIGNATURES . . . . . . . . . . . . . . . . . . . . . . . . . 31 a DEVELOPMENT AGREEMENT BETWEEN THE COUNTY OF CONTRA COSTA AND WALT FOSKETT RELATING TO THE DEVELOPMENT OF CERTAIN PROPERTY IN THE ALAMO AREA THIS DEVELOPMENT AGREEMENT ("'Agreement"') is entered into by and between the County of Contra Costa, a political subdivision organized and existing under the constitution and laws of the State of California ("'County") , and Walt Foskett, an individual, (NDeveloperff) , pursuant to the authority of California Government Code Sections 65864 et se . Developer and County are from time to time hereinafter referred to individually as Nparty"' and collectively as the Nparties.n RECITALS A. 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 Sections 65864 et sect. (the Development 'Agreement Statutes) , which authorize the County to enter into an agreement with any person having a legal or equitable interest in real property providing for the development of such property and establishing certain development rights therein. B. Pursuant to Government Code Section 65865, County has adopted rules and regulations governing the processing and approval of development agreements. (Ordinance No. 92-73 and Resolution No. 85/412, "'Development Agreement Proceduresy) . This Development Agreement has been processed, considered and executed in accordance with state law and County rules and regulations. C. Developer has a legal interest in certain real property, consisting of 5.84 acres located in the unincorporated portion of the County at 100 Vernal Drive in Alamo, as described in Exhibit A attached hereto. This property shall be referred to as the "'Project Site.n D. Developer intends to develop the Project Site as a residential planned unit development of ten (10) units. E. County has determined that the Project is a development for which this Agreement is appropriate, and desires to enter into this Agreement. This Agreement will, among other things, eliminate uncertainty in planning and provide for the orderly development of the Project consistent with the County General Plan and market conditions. F. In exchange for the benefits to County described in the preceding Recital, together with other public benefits that will result from development of the Project, Developer will receive by the Agreement assurance that it may proceed with the Project in accordance with the nApplicable Lawn (defined below) through the term of this Agreement, and therefore desires to enter into this Agreement. In the absence of this Agreement, Developer would have no present assurance that ' it could complete the Project in accordance with the Applicable Law in a timely manner consistent with reasonably anticipated market conditions. -2- ne G. Developer has secured various lar,d use and environmental approvals, entitlements, and permits relating to development of the Project Site. These actions include: (1) Environmental Impact Report. The environmental impacts of the Project have been properly reviewed and assessed by County pursuant to.- the California Environmental Quality Act, the CEQA Guidelines, and County guidelines (collectively CEQA). . On May 21, 1991, the Board of Supervisors (NBoardN) certified a final environmental impact report, and on October 6, 1991 reaffirmed that certification, for the Project and all activities to fully implement the project pursuant to CEQA. (2) General Plan Amendment. On:-May 21, 1991 the :Board adopted the Foskett General Plan Amendment by Resolution No. 91/331 following a recommendation from the' County's San Ramon Valley Regional Planning Commission. (3) P-1 Zoning and Final Development Plan. On October 6, 1992 the Board approved rezoning application No. 2976-RZ and Development Plan No. 3038-91 with amended conditions of approval. (4) Vesting Tentative Subdivision Map. On October 6, 1992 the Board of Supervisors approved Vesting Tentative Subdivision Map No. 77.27 with amended conditions of approval. (5) The General Plan Amendment, P-1 Zoning, Final Development - Plan, Vesting Tentative Subdivision Map, and- this Agreement are sometimes collectively referred to herein as the "Project Approvals." -3- - 4 o :ii:'R+.i Y.Via. �r A. +k 'i;• .. H. Applications for land use approvals, entitlements, and permits other than the Project Approvals and necessary or desirable to the development of the Project (collectively, the "Subsequent ApprovalsM) shall be made by Developer. The Subsequent Approvals include, without limitation, any of the following: amendments of the Project Approvals, design review approvals, improvement agreements and other agreements relating to the Project, grading permits, building permits; subdivision improvement plans, sewer and water connection permits, certificates of occupancy, final subdivision map, landscaping plans, encroachment permits, resubdivisions,' and any amendments to, or repealing of, any of the foregoing. I. With respect to the Subsequent Approvals, Developer has completed and County Building Inspection Department is currently plan checking the final subdivision map, subdivision improvement plan, and grading plan. Developer has also completed and County Community Development Department is currently reviewing the project landscape plan and conditions, covenants, and restrictions document. J. In entering this Agreement, County reaffirms that development of the Project consistent with the Project Approvals, including the terms of this Agreement, and incorporating the mitigation measures included in the EIR, will be consistent with the County's Growth Management Element, including that Element's requirements 'regarding traffic level of service standards, and performance standards .for-fire protection, police services, .'parks, -4- sanitary facilities, water and flood control. There have been no changes since the date of the last Project Approvals and because this is a relatively small infill project in an area with adequate infrastructure, public infrastructure conditions will remain the same at least through the term of this Agreement. K. Each party acknowledges that it is entering into this Agreement voluntarily. AGREEMENT NOW, THEREFORE, in consideration of the promises, covenants, and provisions set forth herein, the receipt and adequacy of which consideration is hereby acknowledged, the parties agree as follows: ARTICLE 1. EFFECTIVE DATE AND.TERM Section 1.01. Effective Date. This Agreement shall become effective upon the date the ordinance approving this Agreement becomes effective, or the date upon which this Agreement is executed by Developer and County, which ever is later (the MEffective Date") . However, for the purposes of vesting protections provided by this Agreement, the "Applicable Law" to which the Project shall be subject shall be. as set forth in Section 4.03 below. Section 1.02. Term. The term of this Agreement (the "Term") shall commence upon the Effective Date and continue for a period of ten (10) years. ARTICLE 2. DEFINITIONS The following terms used in this Agreement, unless the context otherwise requires, shall have the following meanings: -5- "AgreementN shall mean this Development Agreement. NAnnual Review" shall have that meaning set forth in Section 8.02 of this Agreement. NApplicable Law" shall have that meaning set forth in Section 4.03 of this Agreement. NBoardN or "Board of Supervisors" shall mean the Board 'of Supervisors of the County of Contra Costa. NChanges in the LawN shall have that meaning set forth in Section 4.04 of this Agreement. - NCommunity Development Director" shall mean the Director of the County's Department of Community Development, or his or her designee. NCountyN shall mean the County of Contra Costa, California, and shall include, unless otherwise provided, any of the County's agencies, departments, employees or consultants. "County General PlanN or "General Plan" shall mean Contra Costa County's General Plan 1900 - 2005 adopted on January 29, 1991, as may be amended. "County law" shall have that meaning set forth in Section 4.03 (2) of this Agreement. NDeveloperN shall have that meaning set forth in the preamble, and shall further include, unless otherwise provided, Developer's successors, heirs, assigns, and transferee's. "Effective Date" shall have that meaning set forth in Section 1.01 of this Agreement. -6- "'Foreclosure"' shall have that meaning set forth in Section 14.01 of this Agreement. "General Plan Amendments shall have that meaning set forth in Recital G(2) of this Agreement. "Mortgages and mMortgagees shall have the meanings assigned to those terms in Section 14.01 of this Agreement. "Notice of Compliances shall have that meaning set forth in Article 16 of this Agreement. "Projects shall mean the Project Site and all improvements to be constructed thereon by Developer as described in the Project Approvals and ' (as and when they are adopted or issued) the Subsequent Approvals, and all off-site improvements to be constructed in connection therewith. "Project Approvals" shall have that meaning set forth in Recital G(5) of this Agreement. "Project Sites shall have that meaning set forth in Recital C of this Agreement. "Subsequent Approvals" shall have that meaning set forth in Recital I of this Agreement. "Terms shall have that meaning set forth in Section 1.02 of this Agreement. "Zonings shall have that meaning set forth in Recital G(3) of this Agreement. -7- ARTICLE 3. OBLIGATIONS OF DEVELOPER AND COUNTY Section 3.01. Obligations of Developer. (1) Generally. In consideration of the County's execution of this Agreement, Developer agrees that it will comply with the Project Approvals and terms of this Agreement. The parties acknowledge that the execution of this Agreement by County is a material consideration for both Developer's acceptance of, and agreement to comply with, the terms and conditions of this Agreement. (2) Final Development Plan and Vesting Tentative Subdivision May. Without limiting the generality of the foregoing, Developer shall comply with the Final Development Plan, Vesting Tentative Subdivision Map, and the modified conditions of approval which include mitigation measures in conformance with the Environmental Impact Report. (3) Improved Energy Efficiency. All residential houses shall meet energy efficiency standards of 10% more than the requirements of Title 24 of the California Code of Regulations in. effect on the Effective Date of this Agreement. (4) Provision for Electric Cars. In each garage, an electrical outlet shall be installed and dedicated for potential use in recharging electrical vehicles. Section 3.02. Obligations of County.' In consideration of Developer entering into this Agreement, County agrees that it shall comply with the Project Approvals, and shall consider all applications for Subsequent Approvals as provided below and, if -8- approved, comply with all such Subsequent Approvals. The execution of this Agreement by Developer is a material consideration for County's acceptance of, and agreement to comply with, the terms and conditions of this Agreement. ARTICLE 4. DEVELOPMENT OF PROJECT AND PROJECT SITE Section 4.01. Vested Right to Develop. Developer shall have the vested right to develop the Project in accordance with the terms and conditions of - this Agreement, including the right to develop on the Project Site, the ten (10) residential units as set forth in the Final Development Plan and Vesting Tentative Map as modified by the conditions of approval. Section 4. 02. Permitted Uses, Etc. , Vested by this Agreement. As stated in the Project Approvals, the Project Site may be used for detached single-family dwellings and accessory structures, with a density of ten (10) units total, with a maximum height of 35 feet, and a maximum bulk and size as follows: lot coverage (house and garage) not exceeding 25% of the net lot area and two and one- half stories. Further, the Project Approvals, specifically the conditions of approval, provide for dedication of land for public roadway purposes along Vernal Avenue. Section 4.03. Applicable Law. (1) Generally. The .ordinances, rules, regulations, specifications and official policies applicable to the Project (the MApplicable Lawp) shall be those set forth in the Project Approvals and (as and when 'they are adopted or issued) the Subsequent Approvals and, with respect to matters not address ed-by- the.Project -9- Approvals or the Subsequent Approvals (as and when they are adopted or issued) , those rules, regulations, official policies, standards and specifications (including County ordinances and resolutions) in force and effect on the Effective Date. (2) No Conflicting Enactments. Except as otherwise specifically set forth herein, County shall not apply to the Project (whether by action of the Board or otherwise, or by initiative, referendum, issuance of a Subsequent Approval or other means, and whether through the exercise of County's police power or taxing power) any ordinance, resolution, rule, regulation, standard, directive, condition or other measure (each, individually, a ffCounty Lawy) that is in conflict with Applicable Law (including this Agreement) or that reduces the development rights provided by this Agreement. Without limiting the generality of the foregoing, any County Law shall be deemed to conflict with Applicable Law (including this Agreement) or reduce the development rights provided hereby if it would accomplish any of the following results, either by specific reference to the Project or as part of a general enactment which applies to or affects the Project: a. limit or reduce the density of the Project or otherwise require any reduction in the square footage or 'number of proposed buildings or other improvements; b. change the zoning or permitted use of the Project Site; C. limit or control the availability of public utilities, services or -facilities. or any privileges or. rights.-to -10- public utilities, services; or facilities (for example, water rights, water connections or sewage capacity rights, sewer connections, etc. ) for the Project; d. limit- or control the rate, timing, phasing or sequencing of the approval, development or construction of all or any part of the Project; e. apply to the Project any County Law otherwise allowed by this Agreement that is not uniformly applied on a County-wide basis to all substantially similar types of development projects and project sites; .f. require the issuance of additional permits or the securing of approvals by County other than those required by Applicable Law; g. establish, enact, increase, or impose against the Project any fees, taxes (including without limitation general, special and excise taxes) , assessments, liens or other monetary obligations other than (i) those specifically permitted by this Agreement (including Processing Fees) and (ii) any County-wide taxes and assessments; h. establish, enact, increase or impose against the Project any rules, regulations, policies or standards that were not in effect on the Effective Date, or otherwise impose against the Project any condition, dedication or other exaction not specifically authorized by Applicable Law. i. limit the processing or procuring of applications and approvals of Subsequent Approvals. . -11- (3) Uniform Codes Exception. Notwithstanding anything to the contrary contained in this Agreement, County may apply to the Project, at any time during the Term, then-current Uniform Building Code and other uniform construction codes, and County's then-current design and construction standards for road and storm drainage facilities, provided that any such uniform code or standard shall apply to the Project only to the extent that such code or standard has been adopted by County and is in effect on- a County-wide basis. (4) Moratoria and Restrictions and Limitations on the Rate or Timing of Development. In the -event a County Law is enacted (whether by action of the Board or otherwise, or by initiative, referendum, issuance of a Subsequent Approval or other means) . which relates to the growth rate, timing, phasing or sequencing of new development or construction in County or, more particularly, development and construction of all or any part of the Project, such County Law shall not apply to the Project or any portion thereof. County Laws made inoperative by this provision include, but are not limited to, those that were not in force and effect on the Effective Date and that tie development or construction to the availability of public services and/or facilities (for example, the presence of a :.specified traffic level of service or water or sewer availability) . (5) Further CEOA Review. The Environmental Impact Report has been prepared, certified and . reaffirmed pursuant to CEQA. Accordingly, County shall conduct subsequent environmental -12- review only if required by Section 21166 of the Public Resources Code or successor statute. (6) Further Assurances. a. To the maximum extent permitted by law, County shall use its best efforts to prevent any County Law from invalidating or prevailing over all or any part of this Agreement, and County shall cooperate with Developer and use its best efforts to keep this Agreement in full force and effect. b. County shall not support, adopt or enact any County Law, or take any other action which would violate the express or implied provisions, conditions, spirit or intent of any of the Project Approvals or the Subsequent Approvals. C. Developer reserves the right to challenge in court any County Law that would, in Developers opinion, conflict with Applicable Law (including this Agreement) or reduce the development rights provided by this Agreement. d. County shall take any and all actions as may be necessary or appropriate to ensure that the vested rights provided by this Agreement can be enjoyed by Developer including, without limitation, any actions as may be necessary or appropriate to ensure the availability of public services and facilities to serve the Project as development occurs. This may involve the immediate reservation of certain county-provided services and facilities and/or other actions relating to services and facilities provided by other agencies. -13- (7) Life of Subdivision Maps, Development Approvals, and Permits. The term of any Project Approvals, including the final development plan and the vesting tentative subdivision map or any other Subsequent Approval, including the subdivision improvement plan, grading plan, and landscape plan, shall automatically be extended as provided under California Government Code Section 66452. 6(a) or California Government Code 'Section 65863.9 to the term of this Agreement. Section 4.04. State and Federal Law. As provided in Government Code Section 65869.5, this Agreement shall not preclude the application to the Project of changes in laws, regulations, plans or policies, to the extent that such changes are specifically mandated and required by changes in state or federal laws or regulations (ffChanges in the Law") . In the event Changes in the Law prevent or preclude compliance with one or more provisions of this Agreement, such provisions of -the Agreement shall be modified or suspended, or performance thereof delayed, as may be necessary to comply with Changes in the Law, and Cou:ity and Developer shall take such action as may be required pursuant to this Agreement including, without limitation, Article 6 (Cooperation- Implementation) and Section 8.03 (Enforced Delay;. Extension of Time of Performance) . Section 4.05. Timing of Project Construction and Completion. Notwithstanding Sections 84-66.1406(1) and 84-66. 1602 of the County Code, there is no requirement that -Developer initiate or complete development of the -Project .within •any particular period of time. -14- The parties agree that Developer shall be able to develop in accordance with Developer's own time schedule and/or market conditions as such schedule and/or market conditions may exist from time to time, and Developer shall determine which units of the Project Site to develop first. In particular, it is the .parties, desire to avoid the result in Pardee Construction Co. v. City of Camarillo, 37 Cal.3d 465 (1984) , specifically that the failure of the parties to consider and expressly provide for the timing of development resulted in a later-adopted initiative restricting the timing of development to prevail over such parties' agreement. Therefore, the parties acknowledge that Developer shall have the right to develop the Project in such order and at such rate and at such times as Developer deems appropriate within the exercise of its subjective business judgment. ARTICLE S. AMENDMENT OF AGREEMENT This Agreement may be amended from time to time by mutual consent of the parties, in accordance with the provisions of Government Code Sections 65867 and 65868. ARTICLE 6. COOPERATION-IMPLEMENTATION Section 6.01. Processing. (1) By approving the Project Approvals, and this Agreement (which provides a vested right to proceed in accordance with those approvals) , County has made a final policy decision that the Project is in the best interest of the public health, safety and general welfare. Accordingly, County shall not use its discretionary . authority in considering any application for a -15- Subsequent Approval to reconsider the policy decisions reflected by the Project Approvals or otherwise to prevent or delay development of the Project. Instead, the Subsequent Approvals- shall be deemed to be tools to implement those final policy decisions and shall be issued by County so long as they comply with Applicable Law and are not inconsistent with the Project Approvals as set forth below. (2) Upon submission by Developer of all appropriate applications and processing fees for any Subsequent Approval, County shall commence and complete (and shall use its best efforts to promptly and diligently commence and complete) all steps necessary to act on the Subsequent Approval application including, without limitation the decision on whether to approve the Subsequent Approval application as set for'_h below. (3) An application by Developer for a Subsequent Approval may be denied by County if such application does not comply with Applicable Law, is inconsistent with the Project Approvals or County is unable to make all findings required by state law in connection with such Subsequent Approval. County may approve an application for such a Subsequent Approval subject to any conditions necessary to bring the Subsequent Approval into compliance with Applicable Law, make the Subsequent Approval consistent with the Project Approvals or allow County to make the. findings required by state law. If County denies any application for a Subsequent Approval, County must spegfy modifications which are required to obtain approval of such application. Any such -16- specified modifications must be consistent with this Agreement and Applicable Law, and County shall approve the application if subsequently resubmitted for County review if it complies with the specified modifications. (4) Developer shall, in a timely manner, provide County with all documents, applications, plans, and other information necessary for County to carry out these obligations and .cause Developerls planners, engineers, and all other consultants to submit, in a timely manner, all required materials and documents. Section 6.02. Other Governmental Permits. Developer shall apply for other permits and approvals required by other governmental or quasi-governmental agencies having jurisdiction over the Project or services for the Project. The County shall cooperate with the Developer in efforts to obtain such permits and approvals, provide any documents or certificates reasonably required to process and obtain such permits and approvals, and, at the request of the Developer, -attempt with due diligence and in good faith to enter into binding agreements with any such entity necessary to assure the availability of such permits and approvals or services, provided such agreements are reasonable and. not detrimental to the County. Section 6.03. Eminent Domain Powers. County shall cooperate with the Developer in -implementing the Project Approvals; provided, however, any use by the County of its eminent domain powers to facilitate the implementation of any conditions, shall be as a result of its independent exercise of judgment following all -17- applicable procedures and making -the requisite findings properly supported by evidence that the use of such eminent domain power is necessary and proper, and further, provided that the County and Developer have entered into a mutually acceptable condemnation agreement. ARTICLE 7. COOPERATION IN THE EVENT OF LEGAL CHALLENGE In the event of any legal or equitable action or , other proceeding instituted by any third party, (including a governmental entity or official) challenging the validity of any provision of the Project Approvals or Subsequent Approvals the parties hereby agree to cooperate in defending such action or proceeding. Each party may select its own legal -counsel at 'its ' own expense. In no event shall the County be required to bear the cost of Developer's attorneys. Developer shall save and hold County harmless from claims or awards for third party attorneys' fees and costs. ARTICLE S. DEFAULT; REMEDIES; TERMINATION Section 8. 01. Default and Remedies. A party shall be in default of this Agreement if it fails to perform under this- Agreement for a period of thirty (30) days after written notice from the other party of an event of default. The notice of default shall specify the nature of the alleged default and the manner in which said default may be satisfactorily cured. If the nature of the alleged default is such that it cannot reasonably be cured within such thirty (30) day period, the, commencement of the cure within such time period and the diligent prosecution to completion of the cure shall. be deemed a cure within such period. If the -18- default is cured, then no default shall exist and the noticing party shall take no further action. Upon the default by any party under this Agreement, the party not in default shall have all rights and remedies provided by law, including the right to terminate this Agreement pursuant to Government Code Section 65868, the right to seek specific performance, and the right to seek writs of mandate compelling performance with the terms of this Agreement or requiring other action consistent with this Agreement. Section 8.02. Annual Review. (1) Each year during the term of this Agreement, on or before the anniversary of the Effective Date, the County shall review the extent of good-faith compliance by the Developer with the terms of this Agreement pursuant to Government Code Section 65865. 1 (the ffAnnual ReviewM) . The Annual Review shall be conducted by the Zoning Administrator. (2) During the Annual Review, the Developer shall be required to demonstrate good-faith compliance with the terms of this Agreement. (3) At the conclusion of the Annual Review, the Zoning Administrator shall make written findings and determinations, on the basis of substantial evidence, whether or not the Developer has complied. in good faith with the terms and conditions of this Agreement. The decision of the Zoning Administrator shall be appealable directly to the Board of Supervisors, and any appeal shall otherwise be governed by the provisions of Article 26-2.24 of the Contra Costa County Code, as may be amended from time to -19- time. If the Developer is found to be out of compliance with such terms and conditions, County may follow the procedures of Section 8.01 for noticing a default and if not cured County retains the right modify or terminate this Agreement by giving notice of its intention to do so in the manner set forth in Government Code Sections 65867 and 65868. ' (4) County shall deposit in the mail to . the Developer a copy of any public staff reports and documents to be used or relied upon in conducting the review and, to the extent practical, related exhibits concerning Developer's performance, at least ten (10) days prior to the Annual Review. Developer shall be permitted an opportunity to respond to the County's evaluation of the Developer's performance by oral comment and written statement. (.5) In the event the County fails to either (1) conduct the Annual Review or, (2) notify the Developer in writing (following the time during which the review is to be conducted) of the County's determination as to compliancy or noncompliance with the terms of this Agreement and such failure remains uncured -as of sixty (60) days following the anniversary of the Effective Date in any year during the term of this Agreement, it shall be presummed that the Developer has in good faith complied with and implemented the terms of this Agreement. (6) With respect to each year for which an Annual Review of compliance with this Agreement is conducted, and with respect to each year in which the County finds the Developer in compliance or is deemed to approve of the, Developer's compliance with this -20- Agreement pursuant to the preceding paragraph, the County, upon request of the Developer, shall provide the Developer with a written NNotice of -Compliancep pursuant to Article 16 of this Agreement. Section 8.03. Excusable Delays; Extension of Time of Performance. Notwithstanding anything to the contrary contained herein, neither party shall be deemed to be in default where delays in performance or failures to perform are due to war, insurrection, strikes or other labor disturbances, walk-outs, riots, floods, earthquakes, fires, casualties, acts of God, restrictions imposed or mandated by other governmental entities (including new or supplemental environmental regulations) , enactment of conflicting state or federal laws or regulations or similar basis for excused performance which is not within the reasonable control of the party to be excused. Upon the request of either party hereto, an extension of time for the performance of any obligation whose performance has been so prevented or delayed will be memorialized in writing. The terms of any such extension shall be equal to the period of the excusable delay, or longer, as may be mutually agreed upon. Section 8.04. Legal Action. Either;""party may, in addition to any other rights or remedies, institute an equitable action to cure, correct, or remedy any default, enforce any covenant or agreement herein, enjoin any threatened or attempted violation thereof or enforce by specific performance the obligations and rights of the parties hereto, or to :obtain any remedies consistent -21- with the foregoing. In no event shall either County or Developer be entitled to monetary damages for breach cf contract by the other party to this Agreement. Section 8.05. California Law. This Agreement shall be construed and enforced in accordance with the laws of the-State of California. ARTICLE 9. DEFENSE AND INDEMNITY A. Developer's Actions. Developer shall defend and indemnify County and its elected and appointed officers, agents, employees, and representatives from claims, costs, and liabilities for any personal injury, death, or physical property damage (including inverse condemnation) to any third party which arises, directly or indirectly, as a result of tre construction of the Project, or of operations performed under this Agreement, by Developer or by Developer's contractors, subcontractors, agents or employees, whether such operations were performed by Developer or any of Developer's contractors, subcontractors, or by any one or more persons directly or indirectly employed by, or acting as agent for Developer or any of Developer's contractors or subcontractors. B. County's Actions. Nothing in this section shall be construed to mean that Developer shall defend or indemnify County from any claims of personal injury, death or property damage arising from, or alleged to arise from, (i)' any intentionally harmful act or failure to act, on the part, of County, its elected and appointed representatives, officers, agents and employees or (ii) the maintenance or repair by County of public improvements- -22- that have been offered for dedication and accepted by County for maintenance. ARTICLE 10. NO AGENCY, JOINT VENTURE OR PARTNERSHIP County and Developer hereby renounce the existence of any form of agency relationship, joint venture or partnership between them, and agree that nothing contained herein or in any document executed in connection herewith shall be construed as creating any such relationship between County and Developer joint venturers or partners. ARTICLE 11. MISCELLANEOUS Section 11.01. Incorporation of Recitals. The Recitals set forth above are hereby incorporated into this Agreement as if set forth herein in full. Section 11.02. Severability. If any provision of this Agreement or the application of any provision of this Agreement to a particular situation is held by a court of competent jurisdiction to be invalid or unenforceable, then, to the extent that the invalidity or unenforceability does not impair the application of this Agreement as intended by the parties, the remaining provisions of this Agreement, or the application of this Agreement to other situations, shall continue in full force and effect. Section 11.03. Further Actions. Each party shall execute and deliver to the other' all such other further instruments and documents as may be reasonably necessary to carry out this Agreement in order to provide and secure to the other party the -23- full and complete enjoyment of their rights and privileges hereunder. Section 11.04. Interpretation of Agreement. This Agreement has been reviewed and revised by legal counsel for both the Developer and County, and no presumption or rule that ambiguities shall be construed against the drafting party shall apply to the interpretation' or enforcement of this Agreement. ARTICLE 12. NOTICES Any notice or communication required. hereunder between the County or the Developer must be in writing, and may be given either personally or 'by registered or certified mail, return receipt requested. If given by registered or certified mail, the same shall be deemed to have been given and received on the first to occur of (i) actual receipt by any of the addressees designated below as the party to whom notices are to be sent, or (ii) five (5) days after a registered or certified letter containing such notice, properly addressed, with postage prepaid, is deposited in the United States mail. If personally delivered, a notice shall be deemed to have been given when delivered to the party to whom it is addressed. Any party hereto may at any time, by giving ten (10) days written notice to the other party hereto, designate any other address in substitution of the address to which such notice or communication shall be given. Such notices or communications shall be given to the parties at their addresses set forth below. -24- If to County: Community Development Department Attn: Harvey E. Bragdon, Director Contra Costa County 651 Pine Street, 4th Floor, North Wing Martinez, CA 94553 With Copies to: County Counsel Contra Costa County Administration Building 651 Pine Street, Ninth Floor Martinez, CA 94553 Public Works Department Attn: Michael Walford, Director 255 Glacier Drive Martinez, CA 94553 If to Developer: Walt Foskett 100 Vernal Drive Alamo, CA 94507 With Copies to: Gagen, McCoy, McMahon & Armstrong Attn: Mark L. Armstrong P.O. Box 218 Danville, California 94526 ARTICLE 13. ASSIGNMENT The Developer shall have the right to assign or transfer his interests, or any portion thereof, under this Agreement, without the consent of the County. Developer shall provide notice to the County of any assignment or transfer. The express assumption by assignee or transferee of the obligations and other terms and conditions of this Agreement with respect"to the Project Site or such portion thereof assigned or transferred, shall relieve the Developer of such obligations so expressly assumed. -25- L Any such assignee or transferee shall be obligated and bound by the terms and conditions of this Agreement, and shall be the beneficiary thereof and a party thereto, only with respect to the Project Site, or such portion thereof assigned or transferred to it. Any such assignee or transferee sball observe and fully perform all of the duties and obligations of the Developer contained in this Agreement, as such duties and obligations pertain to the portion of the Project Site assigned or transferred to. it. ARTICLE 14. MORTGAGEE PROTECTIONS Section 14.01. Mortgagee Protection. Notwithstanding any other provision of this Agreement, neither this Agreement nor any provision, amendment or breach of this Agreement shall operate to defeat or render invalid the rights of any present or future NMortgageep (defined below) under a mMortgagev (defined below) encumbering the Project Site or any part thereof, or any interest therein, made for value; provided, however, that after the NForeclosureN (defined below) of any such Mortgage, the portion of the Project or the interest therein, that had been encumbered by such Mortgage shall remain subject to and entitled to the benefits of this Agreement. As used in this Agreement, (i) the term NForeclosurep shall mean judicial foreclosure, sale under a power of sale, or deed in lieu of either of the foregoing, (ii) the term ffMortgage"' shall mean a mortgage, deed of trust, or other security instrument and (iii) the term aMortgageep shall mean a mortgagee, a beneficiary of a deed of trust or the secured party under any other security instrument. -26- Section 14.02. Notice of Default to Mortgagee. If County receives notice from a Mortgagee requesting a copy of any notice of default given to Developer hereunder and specifying the address for service of such copy, then County shall deliver to such Mortgagee, concurrently with service thereon to Developer, any notice given to Developer under Section 8.01 above. Each Mortgagee shall have the right, but not the obligation, at its option, at any time prior to termination of this Agreement by County, to cure or remedy any such default under this Agreement by the Developer. Section 14.03. Opportunity to Cure. This Agreement shall not be terminated by County as to any Mortgagee (i) who has requested notices of default, as set forth above, but the Mortgagee is not given notice by the County or (ii) to whom such notice is given and to which either or the following is true: (1) the Mortgagee cures any default involving the payment of money to County by Developer within sixty (60) days after receipt of notice of default; (2) as to defaults not involving the payment of money by Developer to County, or otherwise requiring title or possession of all or any portion of the Project to ef-tectuate a cure: a. the Mortgagee agrees in writing (within ninety (90) days after the receipt of notice of default) that, upon its acquisition of that portion of the Project in which the Mortgagee has an interest, Mortgagee shall perform that share of Developer's obligations under this Agreement allocable to such part of the -27- Project (which obligations may be as sett forth in a Transfer Agreement subject to such Mortgagee's Mortgage) , b. the Mortgagee, within ninety (90) days after the receipt of notice of default, commences foreclosure proceedings to acquire title to the applicable portion of the Project and thereafter diligently pursues the Foreclosure to completion; and c. the Mortgagee (or the purchaser in Foreclosure, as applicable) , after obtaining title to the applicable portion of the Project, commences cure of the default and diligently pursues such cure to completion. Subject to the foregoing, in the event any Mortgagee records a notice of default as to its Mortgage, Developer's rights and obligations under this Agreement may be transferred to the Mortgagee or to any purchaser of the Developer's interest in a Foreclosure. Section 14.04. Approval by Mortgagees. County recognizes that the provisions of this Agreement may be a matter of concern to any Mortgagee intending to make a loan secured by a Mortgage encumbering the Project Site, or a portion thereof. If such Mortgagee should require, as a condition to such financing, any modifications of this Agreement .in order to protect its security interest in the Project site or portion thereof, County shall execute the appropriate amendments; provided, however, that County shall not be required (but is permitted) to make any modification that would (i) materially and adversely affect County's rights -28- hereunder, (ii) increase County's obligations hereunder, or . (iii) reduce Developers obligations hereunder. Section 14.05. Notice of Proposed Amendment to Mortgagee. This Agreement may be amended without the approval or execution of by any mortgagee. However, if County eeceives notice from a mortgagee requesting a notice of proposed amendment, County shall provide a copy of any proposed amendment to such mortgagee. . ARTICLE 15. INCORPORATION OR ANNEXATION In the event that the Project Site is included in a newly incorporated municipality, or annexed to an existing municipality, then this Agreement shall enure to the benefit of, and be binding on, the municipality and the successor to the County, consistent with Government Code Section 65865.3. Provided, however, upon such incorporation or annexation the Developer may, with the concurrence of the County, continue to submit all building and other plans required for construction of the Project tO the County's Building Inspection Department for its review and approval. The Department shall continue to have sole jurisdiction over the issuance of applicable building, grading and other construction-related permits. ARTICLE 16. NOTICE OF COMPLIANCE Within thirty (30) days following any written request which either party may make from time to time, the other party to this Agreement shall execute and deliver to the requesting party a written "'Notice of Compliance,N in recordable form, duly executed and acknowledged by the County that certifies: -29- (1) This Agreement is unmodified and in full force and effect, or if there have been modifications hereto, that this Agreement is in full force and effect as modified and stating the date and nature of such modifications; (2) There are no known current uncured defaults under this Agreement or specifying the dates and nature of any such default; and (3) Any other reasonable information requested. The failure to deliver such a statement within such time shall constitute a conclusive presumption against the party which fails to deliver such statement that this Agreement is in full force and effect without modification except as may be represented by the requesting party and that there are not uncured defaults in the performance of the requesting party, except as may be represented by the requesting party. The Developer shall have the right, in Developer's sole discretion, to record this Notice of Compliance. ARTICLE 17. ENTIRE AGREEMENT, COUNTERPARTS AND EXHIBITS This Agreement may be executed in two (2) duplicate counterparts, each of which would be deemed to be an original. This Agreement consists of pages, which includes notary acknowledgment forms and exhibits which constitutes the entire understanding and agreement of the parties hereto. The following exhibit is attached to this Agreement and incorporated herein for all purposes: Exhibit A Legal Description of property owned by Walt Foskett -30- ARTICLE 18. RECORDATION OF DEVELOPMENT AGREEMENT Pursuant to California Government Code Section 65868.5, no later than ten (10) days after County enters into this Agreement, the County Clerk shall record an executed copy of this Agreement in the Official Records of the County of Contra Costa. SIGNATURES IN WITNESS WHEREOF, Developer and County have executed this Agreement on the dates below. COUNTY: Date: , 1993 COUNTY OF CONTRA COSTA By: HARVEY E. BRAGDON, Director Department of Community Development APPROVED AS TO FORM: VICTOR J. WESTMAN County Counsel By: SILVANO MARCHESI Title: DEVELOPER: Date: , 1993 WALT FOSKETT VERSION 5-NOV-93 -31- EXHIBIT A LEGAL DESCRIPTION OF PROPERTY PARCEL ONE: In the Rancho San Ramon, a portion of what was formerly known as the "Bell Tract, " about two miles Northeast of the Town of Alamo, and being the same parcel of land described in the deed from J. M. Stow and Lily S. Stow, his wife, to G. T. Elliot, dated October 11, 1913 and recorded October 18, 1913 in Volume 213 of Deeds, at page 217, as follows: Commencing at a point distant North 120 West 20 feet from the Northeast corner of lands now or formerly of George Trevitss, said point of beginning being in the East line of a certain County Road running in generally Northerly and Easterly directions from Livorna Station on the main highway between Walnut Creek and Danville; thence running South 120 East 286.44 feet; thence North 870 37 , East 889.02 feet to station; thence North 120 West 286.44 feet to station; and thence South 870 37 ' West 889.02 feet to the place of beginning. EXCEPTING THEREFROM the following described property: Beginning at a 2" pipe on the North line of the parcel of land described in the deed , from J. M. Stow, et ux, to C. I. Elliott, dated October 11, 1913 and recorded October 18, 1913 in Volume 213 of Deeds at page 217, distant North 870 37.1 East 426.3 feet from the Northwest corner of said parcel; thence from said point of beginning North 870 37 ' East along said North line 462.72 feet to a 2" pipe at the North East corner of said Elliott Parcel; thence South 120 East along the East line of said parcel 286.44 feet to the North line of the parcel of land described in the deed from J. M. Stow, et ux to William T. White, et ux, dated April 10, 1912 . and recorded April 12, 1912 in Volume 179 of Deeds at page 372; thence South 870 37 ' West along said North line 462.72 feet to a 2" pipe; thence North 12° West 286.44 feet to the point of beginning as conveyed to Joseph Falconer by Deed dated September 1, 1937, and recorded September 8, 1937, in Volume 440 of Official Records, page 434. PARCEL TWO: Portion of the Rancho San Ramon, described as follows: Beginning at a 2" pipe on the North line of the parcel of land described in the -deed from J. M. Stow, et ux to C. I. Elliott, dated October 11, 1913 and recorded October 18, 1913 in Volume 213 of Deeds, at page 217, distant North 870 37 ' East, 426.3 feet from the Northwest corner of said parcel; thence from said point of beginning, North 870 37 ' East along said North line 462.72 feet to a 2" pipe at the northeast corner of said Elliott Parcel; thence ti South 120 East along the East line of said parcel, 286.44 feet to the North line of the parcel of land described in the deed. from J. M. Stow et ux, to William T. White, et ux, dated April 10, 1912 and recorded April 12, 1912 in Volume 179 of Deeds, at page 372; thence South 870 37 ' West along said North line, 462.72 feet to a 2" pipe; thence North 120 West, 286.44 feet to the point of beginning. (Being APN 192-230-017 and 018) ' .,J STATE OF CALIFORNIA ) ss COUNTY OF CONTRA COSTA ) On this day of , in the year 1993, before me, a Notary Public in and for said county - and state, personally appeared HARVEY E. BRAGDON, personally known to me (or proved to me on the basis of satisfactory evidence) to be the person who executed this instrument as Director of the Contra Costa County Department of Community Development and acknowledged to me that he executed it. IN WITNESS WHEREOF, I have hereunto set my hand and affixed my seal. Notary Public, State of California My commission expires M STATE OF CALIFORNIA ) ss COUNTY OF CONTRA COSTA ) On this day of , 1993, before me, a Notary Public in and for said State, duly ccinmissioned and sworn, personally appeared WALT FOSKETT, personally known to me (or proved to me on the basis of satisfactory evidence) to be the person whose name is subscribed to this instrument, and acknowledged to me that he subscribed his name on the within instrument. IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal on the date in this certificate first above written. Notary Public, State of California My commission expires k % . STATE OF CALIFORNIA ) ss COUNTY OF CONTRA COSTA ) On this day of 1993, before me, a Notary Public in and for said State, duly commissioned and sworn, personally appeared SILVANO MARCHESI, personally known to me (or proved to me on the basis of satisfactory evidence) to be the person whose name is subscribed to this instrument, and acknowledged to me that he subscribed his name on the within instrument. IN WITNESS WHEREOF, I have hereunto ::et my hand and affixed my official seal on the date in this certificate first above written. Notary Public, State of California My commission expires