Loading...
HomeMy WebLinkAbout108-97RESOLUTION NO. 108-97 APPROVING A PREANNEXATION AND PROCESSING AGREEMENT BETWEEN THE TOWN OF DANVILLE AND KAUFMAN AND BROAD OF NORTHERN CALIFORNIA, INC. FOR THE MEADOWS WHEREAS, Kaufman and Broad ofNorthem Califomia, Inc. ("Kaufman and Broad") holds a legal or equitable interest in a parcel of land consisting of approximately 44 acres located at the southeast comer of the intersection of Camino Tassajara and Lawrence Road, which land is contiguous to the Town of Danville; and WHEREAS, Kaufman and Broad has applied for and obtained the following land use entitlements from the County of Contra Costa authorizing development of a 192 single-family home project known as The Meadows: General Plan Amendment, Rezoning, Preliminary and Final Development Plans and a vesting tentative subdivision map, all of which entitlements are the subject of a certified environmental impact report; and WHEREAS, the property is currently located within the Town's Sphere of Influence; and WHEREAS, Kaufman and Broad has requested that The Meadows be annexed into the Town of Danville and the Town has adopted a resolution of application to the Contra Costa Local Agency Formation Commission ("LAFCO") to initiate that annexation; and WHEREAS, Kaufman and Broad has separately applied to LAFCO for annexation into the service areas of the East Bay Municipal Utility District ("EBMUD") and the Central Contra Costa Sanitary District ("Central Sanitary"); and WHEREAS, Kaufman and Broad has requested that the Town enter into a preannexation and processing agreement for The Meadows, which agreement would provide additional mitigations to the project over and above those imposed by the County and would establish procedures for the Town's review of the remaining permits necessary for the development of the project, such as public improvement and building plans; and WHEREAS, based on the County conditions of approval and the additional mitigations provided for in the preannexation agreement, The Meadows complies with all applicable provisions of the Town's General Plan, the Dougherty Valley Settlement Agreement, the Contra Costa County Growth Management Program and the Tri-Valley Transportation Plan/Action Plan for Routes of Regional Significance; and PAGE 1 OF RESOLUTION NO. 108-97 WHEREAS, with the existence of the County approvals of the project and the additional mitigations provided the Town through the preannexation agreement, it is in the best interests of the Town to have The Meadows develop within the Town of Danville; now, therefore, be it RESOLVED, by the Danville Town Council that the Preannexation and Processing Agreement with Kaufman and Broad of Northern California, Inc. for The Meadows is approved and that the Mayor is hereby authorized to execute the agreement, in a form substantially similar to that attached to this resolution as Exhibit 1. APPROVED by the Danville Town Council at a Regular Meeting on August 5, 1997, by the following vote: AYES: Doyle, NOES: None ABSTAINED: None ABSENT: None Waldo, Arnerich, Greenberg, Shimansky APPROVED AS TO FORM: CITY ATTORNEY ATTEST: CITY CLERK PAGE 2 OF RESOLUTION NO. 108-97 Recording Requested by: TOWN of Danville When Recorded Mail To: TOWN Clerk TOWN of Danville 510 La Gonda Way Danville, CA 94526 Space above this line for Recorder's Use PREANNEXATION AND PROCESSING AGREEMENT BETWEEN THE TOWN OF DANVILLE AND KAUFMAN AND BROAD OF NORTHERN CALIFORNIA, INC. a California Corporation FOR THE MEADOWS PROJECT Exhibit 1 of Resolution No. 108-97 THIS PREANNEXATION AND PROCESSING AGREEMENT (the "Agreement") is made and entered in the Town of Danville on this __ day of 1997, by and between the TOWN OF DANVILLE, a Municipal Corporation (hereafter "TOWN"), and KAUFMAN AND BROAD OF NORTHERN CALIFORNIA, INC., a California Corporation (hereafter "DEVELOPER"). RECITALS A. DEVELOPER desires to develop and holds legal or equitable interest in certain real property consisting of approximately 44.4 acres of land, located in the County of Contra Costa, State of California, ("COUNTY") adjacent to the corporate boundaries of the Town of Danville within the sphere of influence of the Town of Danville, which is more particularly described in Exhibit A attached hereto and incorporated herein by this reference, and which real property is hereafter called the "Property". B. DEVELOPER proposes the general planning, rezoning, subdivision and development of the Property with approximately 192 residential lots, an 8 acre school/park site and certain identified lighting, sewer and other utility improvements (the "Project"). C. DEVELOPER has applied for, and COUNTY has approved, various land use approvals in connection with the development of the Project, including a General Plan Amendment (Res. No. 97/222), Rezoning, Preliminary Development Plan (Ordinance No. 97-9) and vesting tentative map (Res. No. ), (collectively, together with any other approvals or permits now or hereafter issued by the COUNTY with respect to the Project, including, but not limited to, any and all approvals of grading, improvements or other plans related to the development of the Project, referred to as the "Project Approvals"). D. DEVELOPER desires that the Project be annexed into the Town. On August 5,1997, the TOWN adopted a Resolution of intention to annex the Property to the TOWN with the Contra Costa County Local Agency Formation Commission ("LAFCO"). E. TOWN desires the timely, efficient, orderly and proper development of the Project within the constraints and terms set forth under the Project Approvals adopted by the COUNTY with respect to this Project and with the provisions of this Agreemen/ -1- NOW, THEREFORE, with reference to the foregoing recitals and in consideration of the mutual promises, obligations and covenants herein contained, TOWN and DEVELOPER agree as follows: AGREEMENT 1. Description of Property. The Property which is the subject of this Agreement is described in Exhibit A attached hereto. 2. Interest of DEVELOPER. The DEVELOPER has a legal or equitable interest in the Property in that it holds an option to purchase the Property. 3. Relationship of TOWN and DEVELOPER. It is understood that this Agreement is a contract that has been negotiated and voluntarily entered into by TOWN and DEVELOPER and that the DEVELOPER is not an agent of TOWN. The TOWN and DEVELOPER hereby disclaim 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 TOWN and DEVELOPER joint venturers or partners. 4. Applicability of All Prior Land Use Approvals by County 4.1 It is the intent of the parties hereto that all Project Approvals and land use entitlements, whether discretionary, quasi-administrative or ministerial, approved or adopted by COUNTY, including, but not limited to, General Plan Amendment (Res. No. 97/222), Rezoning, Preliminary Development Plan (Ord. No. 97-9) and Final Development Plan and vesting tentative map (Res. No. ~), prior to the date of annexation of the Project into TOWN, shall be accepted and binding upon TOWN effective as of the date of approval or adoption of the Project Approval or entitlement by the COUNTY subject to amendment by mutual consent of the parties pursuant to section 10.2 of this Agreement. Effective Date and Term. - '5~1 "Effective Date. The'Effective Date of this Agreement is the date of approval of this Agreement by the TOWN, as evidenced by the adoption of an appropriate resolution approving the same. -2- 5.2 Term. The term of this Agreement shall commence on the Effective Date and extend twelve (12) years thereafter, unless said term is otherwise terminated, modified or extended by circumstances set forth in this Agreement. 5.3 Extension. So long as DEVELOPER is not in default under this Agreement, DEVELOPER may extend the term of this Agreement for an additional term of five (5) years. DEVELOPER may exercise its right to extend the term of this Agreement by delivery of written notice to the TOWN delivered at any time prior to the expiration of the initial term hereof. 5.4 Continued Effect. The expiration or termination of this Agreement shall not affect any right emanating from the Project Approvals or other entitlements approved by the TOWN or COUNTY prior to, concurrently with or subsequent to the Effective Date, all of which shall continue in full force and effect. Any use or construction properly established during the term of this Agreement shall continue to be a lawful use or building after the expiration of the term hereof. 6. Use of the Property. 6.1 Right to Develop. DEVELOPER shall have the vested right to develop the Project on the Property in accordance with the tei~ms and conditions of this Agreement, the Project Approvals, and any amendments to any of them as shall, from time to time, be approved by DEVELOPER and TOWN pursuant to this Agreement. Pursuant to the terms of this Agreement, the TOWN agrees that it will accept in good faith for processing, review and action and thereafter process promptly all necessary applications, maps, permits and other submittals so as to not delay the progress of the Project and described in the Project Approvals. The TOWN shall act in good faith upon all such applications in a timely manner. The TOWN shall inform DEVELOPER, upon request, of the necessary submission requirements for each application, in advance and in good faith. 6.2 Permitted Uses. The permitted uses of the Property, the density and intensity of use, the maximum height, design and size of proposed buildings, provisions for reservation or dedication of land for public purposes and 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 Project Approvals and any amendments to this Agreement, or the Project Approvals approved by DEVELOPER. In particular, but not in limitation of the foregoing, the Property may be developed and used for the Project as approved inCounty~OrdinanceNo. 97-9. (as. consistent with the County General Plan) and County Vesting Tentative Map Resolution No. 6.3 Acceptance of Previous Approvals. All approvals granted -3- by the County with respect to the Project, including without limitation the Project Approvals, and any and all approvals of grading, improvement or other plans related to the development of the Project, whether discretionary, administrative or ministerial, prior to the annexation of the Project into the TOWN shall be valid and binding upon the parties to this Agreement. TOWN hereby finds that the Vesting Tentative Map approved by the County under Resolution NO. __ and the conditions thereto comply with the requirements of the applicable TOWN subdivision ordinances. Any subsequent approval by TOWN shall be consistent with all previous Project Approvals and this Agreement. 6.4 Rules Concerning Design and Construction. Unless otherwise expressly provided in this Agreement, the ordinances, resolutions, rules, regulations and official policies governing design, improvement and construction standards and specifications applicable to the Project, including without limitation those applicable to public improvements to be constructed by DEVELOPER, shall be those in force and effect on the date the COUNTY accepted the Vesting Tentative Map application as complete. 6.5 Uniform Codes Applicable. Unless expressly provided in Paragraph 5 of this Agreement, the Project shall be constructed in accordance with the provisions of the Uniform Building, Mechanical, Plumbing, and Electrical Codes and Title 24 of the California Code of Regulations, relating to Building Standards, in effect at the time of approval of the appropriate building, grading, or other construction permits for the Project. 6.6 Moratorium Not Applicable. Notwithstanding anything to the contrary contained herein, in the event an ordinance, resolution or other measure is enacted, whether by action of TOWN, by initiative, referendum, or otherwise, that imposes a building, utility, completion or occupancy moratorium which affects the Project on all or any part of the Property, TOWN agrees that such ordinance, resolution or other measure shall not apply to the Project, the Property, this Agreement or the Project Approvals unless the building moratorium is imposed as part of a declaration of a local emergency or state of emergency as defined in Government Code § 8558. 7. Annexations. 7.1 Cooperation in Annexations. On August 5,1997, the TOWN adopted a Resolution of Intent to Annex the Property to TOWN'. Town shall forthwith act as the conducting authority for such annexation and shall submit to LAFCO an application .to annex the Project.- Such an application shall include only the Project. Any LAFCO action requested by TOWN relating to any other property other than the Project shall be made pursuant to a separate application. TOWN shall make every good faith effort to expedite and support the DEVELOPER's annexation application into the TOWN and all other jurisdictions. Such an effort includes but is not limited to expedited scheduling of public hearings and prompt preparation of necessary studies and reports and TOWN's cooperation with LAFCO and all concerned public agencies in support of said annexation. 7.2 Special District Annexations. TOWN agrees to cooperate with and support the annexation of the project into any or all of the necessary and appropriate Special Districts including but not limited to the East Bay Municipal Utility District ("EBMUD") and Contra Costa Central Sanitary District ("CCCSD"). The TOWN acknowledges that the annexation of the Project into the EBMUD and CCCSD may proceed independently of the annexation of the Project into TOWN. 8. Application Processing. 8.1 Plan Checking. TOWN agrees to accept and process any building and grading plans prior to and after the completion of the annexation of the project into the TOWN. All plan check fees shall be those set forth in this Agreement. TOWN will undertake the plan check process in a manner which is, at a minimum, similar to other equivalent plan check applications pending before the TOWN. TOWN will endeavor to expedite the plan check process to the greatest extent feasible. Pending the completion of the annexation, DEVELOPER shall have the right to submit its grading plans to the County Department of Community Development for processing and TOWN agrees to cooperate with COUNTY to minimize any inconsistencies between the COUNTY's and TOWN's plan check process. TOWN will coordinate its actions with COUNTY to assure that DEVELOPER may proceed with grading in an expeditious manner. 8.1.1 Plan Check Fee. For any plan check application, TOWN shall charge DEVELOPER the fee the TOWN would charge other similar plan check applicants in existence on the date the plan is submitted for review. 8.2.2 Plan Checks Completed by COUNTY. Pending completion of the annexation, DEVELOPER may, at its discretion, submit its grading plan check application for processing by COUNTY. TOWN agrees to accept any plans approved by the COUNTY, under this paragraph, as complete and approved by the TOWN and shall not subject these approved plans to any additional TOWN review or charge any additional fee, it being understood by both parties hereto that while the grading plans may be submitted to the COUNTY for processing hereunder, DEVELOPER shall submit all improvement and building plans to TOWN for processing. -5- 9. Subsequently Enacted or Revised Fees, Assessments and Taxes. 9.1 Fees, Exactions, Dedications. TOWN and DEVELOPER agree that the fees payable and dedications required in connection with the development of the Project for purposes of mitigating environmental and other impacts of the Project and providing infrastructure for the Project shall be only those set forth in the conditions of approval of the Preliminary Development Plan and Vesting Tentative Map approved by COUNTY. Except as expressly set forth in Sections 9.1.1, 9.1.2, and 9.1.3 below, the TOWN shall not impose or require payment of any other fees or increased fees, dedications of land, or construction of any public improvements or facilities, in connection with any subsequent ministerial or discretionary approval for the Property, except as set forth in this Agreement and no sooner than required pursuant to Government Code Section 66007 or such later time set forth in this Agreement. To the extent possible and legally appropriate, all fees and exactions shall be applied to benefit the Property. 9.1.1 Traffic Mitigation. Upon annexation, DEVELOPER shall be subject to regional JEPA fees for traffic mitigation. 9.1.2 Parkland Dedication Fees. Upon annexation, DEVELOPER shall pay a fee of the lesser of $5,000 per dwelling unit or a subsequently enacted fee based on a valid nexus to mitigate project related park impacts based upon a standard of 6.5 acres of park area per 1,000 residents. These fees shall be payable on a per unit basis upon issuance of building permits; provided, however, that all such fees shall be payable no later than 2-1/2 years after the recordation of the Final Map. 9.1.3 Lawrence Road Benefit District. DEVELOPER agrees to participate in the Lawrence Road Benefit District as described in the Lawrence Road Benefit District Reimbursement Agreement dated February 20, 1996 and pay fees pursuant to the requirements of that District. The total amount of fees shall be determined when the first unit within the district applies for a building permit. At that time the TOWN and DEVELOPER shall determine the total amount of fees to be charged to DEVELOPER by taking into account the number of the Project's units which will utilize the District's drainage, street and other public improvements, and also accounting for the improvements which will be constructed by DEVELOPER under the then existing plans for the Project. 9.1.4 No Double Payment of Fees. Under no circumstances shall DEVELOPER be subject to fees, exactions or dedication requirements for the mitigation of impacts, .or for the provision of infrastructure or services for which DEVELOPER has previously paid or committed fees, given exactions or dedicated property to the County, unless there is full credit or offset by TOWN for such prior payment or commitment. -6- 9.1.5 Police Services. DEVELOPER agrees to the creation of a funding mechanism for the provision of police services to serve the Project. This levy for police services shall not exceed $600 per year per single family dwelling unit (should such levy ever be less than $600 per unit, the levy for this Project shall also be reduced). Creation of this funding mechanism is necessary to mitigate the need for additional police services for the Property which is not currently served by the TOWN and to establish acceptable levels of service, consistent with the Town of Danville 2005 General Plan. This funding mechanism shall be established prior to occupancy of any homes within the Project. 9.2 Revised Application Fees. Any existing application, processing and inspection fees, with the exception of those plan check fees addressed in paragraph 8 that are revised during the term of this Agreement shall apply to the Project provided that (1) such fees have general applicability; (2) the application of such fees to the Property is prospective; and (3) the application of such fees would not materially increase the costs of the Project or delay construction of the Project or otherwise prevent development of the Project in accordance with this Agreement. 9.3 New Taxes. Any subsequently enacted city-wide taxes, or assessments shall apply to the Project provided that: (1) the application of such taxes or assessments to the Property is prospective; and (2) the application of such taxes or assessments would not materially delay construction of the Project or otherwise prevent development of the Project in accordance with this Agreement. 9.4 Assessments. Nothing herein shall be construed to relieve the Property from any subsequently validly enacted assessments levied by TOWN against Property in the TOWN on a city-wide basis pursuant to any statutory procedure for the assessment of property to pay for infrastructure and/or services which benefit the Property. DEVELOPER agrees to annex the Property into TOWN's Lighting and Landscaping Assessment District, with an estimated current annual assessment of $265 per lot/unit. 10. Amendment or Cancellation. 10.1 Modification Because of Conflict with State or Federal Laws. In the event that state or federal laws or regulations enacted after the Effective Date prevent or preclude compliance with one or more provisions of this Agreement or require changes in plans, maps or permits approved by the TOWN, the parties shall meet and confer in good faith in a reasonable attempt to modify this Agreement to comply with such federal or state law or regulation. No amendment shall be effective without the consent and approval of the DEVELOPER. In the event of conflict between state or Federal laws which operate to prevent DEVELOPER from const~ructing, marketing or selling any material portion of the Project, the DEVELOPER shall not be required to pay any fees or construct any infrastructure or public improvements on the Property that may otherwise be required by the .Project Approvals and/or this Agreement. 10.2 Amendment by Mutual Consent. This Agreement and/or the Project Approvals 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. 10.3 Insubstantial Amendments. Notwithstanding the provisions of Paragraph 10.2, above, any amendments to this Agreement which do not relate to (a) the term of the Agreement as provided in Paragraphs 5.2 and 5.3, above; (b) the permitted uses of the Property as provided in Paragraph 6.2, above; (c) provisions for reservation or dedication of land; (d) conditions, terms, restrictions or requirements for subsequent discretionary actions; (e) the density or intensity of use of the Project; (f) the maximum height or size of proposed buildings; (g) the timing or payment of plan check Fees; or (h) monetary contributions by DEVELOPER as provided in this Agreement, shall not, except to the extent otherwise required by law, require notice or public hearing before either the Planning Commission or the Town Council before the parties may execute an amendment hereto. Any amendments described in this Paragraph 10.3 may be made by written agreement made by DEVELOPER and the TOWN Manager. 10.4 Amendment of Project Approvals. Any amendment of Project Approvals relating to: (a) the permitted use of the Property; (b) provision for reservation or dedication of land; (c) conditions, terms, restrictions or requirements for subsequent discretionary actions; (d) the density or intensity of use of the Project; (e) the maximum height or size of proposed buildings; (f) monetary contributions by the DEVELOPER; or (g) public improvements to be constructed by DEVELOPER shall require an amendment of this Agreement. Any other amendment of the Project Approvals, or any of them, acceptable to TOWN and DEVELOPER shall not require amendment of this Agreement unless the amendment of the Project Approval(s) relates specifically to some provision of this Agreement. 10.5 Cancellation by Mutual Consent. Except as otherwise permitted herein, this Agreement may be canceled in whole or in part only by the mutual consent of TOWN and DEVELOPER or their successors in interest. Any fees paid to TOWN pursuant to Paragraph 8 of this Agreement prior to the date of cancellation shall be refunded by TOWN. -8- 10.6 Cancellation in the Event of Legal Challenge and/or Referendum of TOWN Project Approvals. It is the intent of TOWN to adopt a Resolution approving a General Plan Amendment and Pre-zoning for the Property to make such entitlements consistent with the General Plan and Zoning Designations set forth in the COUNTY Project Approvals for the Property. Should such actions by TOWN be legally challenged or become the subject of a referendum petition after LAFCO approves the annexation of the Property into the TOWN but prior to the formal completion of the annexation proceedings by the TOWN, then the parties agree that either party may, at its discretion, by written notice to the other party, terminate this Agreement and terminate all further annexation proceedings of the Property to TOWN prior to formal completion of such annexation. In addition, should LAFCO require that the TOWN complete the annexation proceedings prior to the expiration of all time periods in which a legal challenge or a referendum petition to the General Plan and Zoning actions can be filed, then DEVELOPER, in its sole discretion, shall have the right to cancel the annexation proceedings prior to formal completion by TOWN of the annexation. Notwithstanding the foregoing, the parties agree, however, that such cancellation, in either event, shall not affect or terminate the annexation of the Property to EBMUD and CCCSD. The foregoing provision shall survive the termination of this Agreement. 10.7 Cancellation in the event the Property is not annexed. If the annexation of the Property to the TOWN is not completed within twelve (12) months after the adoption of the Resolution of Intent to annex by the TOWN, then this Agreement shall be declared null and void. 11. Term of Project Approvals. The term of the vesting tentative map and the other Project Approvals shall extend for the term of this Agreement. 12. Default. 12.1 Other Remedies Available. Upon the occurrence of an event of default, the parties may pursue all other remedies at law or in equity which are not otherwise provided for in this Agreement or in TOWN's regulations governing development agreements, expressly including the remedy of specific performance of this Agreement. 12.2 - -Notice and'Cure~ Upon the occurrence of an event of default by either party, the nondefaulting party shall serve written notice of such default upon the defaulting party. If the default is not cured by the defaulting party within thirty (30) days after service of such notice of default, the nondefaulting party -9- may then commence any legal or equitable action to enforce its rights under this Agreement; provided, however, that if the default cannot be cured within such thirty (30) day period, the nondefaulting party shall refrain from any such legal or equitable action so long as the defaulting party begins to cure such default within such thirty (30) day period and diligently pursues such cure to completion. Failure to give notice shall not constitute a waiver of any default. 12.3 Default By TOWN. In the event TOWN does not accept, review, approve or issue necessary development permits or entitlement for use in a timely fashion as defined by this Agreement, or as otherwise agreed to by the parties, or the TOWN otherwise defaults under the terms of this Agreement, in addition to the remedies available to DEVELOPER under Section 12.1 above, TOWN agrees that DEVELOPER shall not be obligated to proceed with or complete the improvements required under this Agreement, or any Project Approval, or any phase of the Project, nor shall resulting delays in DEVELOPER performance constitute grounds for termination or cancellation of this Agreement. 12.4 Enforced Delay, Extension of Times of Performance. In addition to specific provisions of this Agreement, performance by either party hereunder shall not be deemed to be in default where delays or defaults are due to war, insurrection, strikes, walkouts, riots, floods, earthquakes, fires, casualties, acts of God, governmental restrictions imposed or mandated by other governmental entities, enactment of conflicting state or federal laws or regulations, new or supplementary environmental regulation, litigation, or similar bases for excused performance. If written notice of such delay is given to TOWN within thirty (30) days of the commencement of such delay, an extension of time for such cause shall be granted in writing for the period of the enforced delay, or longer as may be mutually agreed upon. 12.5 Cumulative Rights. In addition to any other rights or remedies, either party may institute legal action to cure, correct or remedy any default, to enforce any covenant or agreement herein, or to enjoin any threatened or attempted violation, or mandate the performance of a required action. 13. Severability. The unenforceability, invalidity or illegality of any provisions, covenant, condition or term of this Agreement shall not render the other provisions unenforceable, invalid or illegal; provided, however, that DEVELOPER shall not be required to pay any fees, make any 'dedications or construct-any public improvements that may be described in this Agreement, or the Project Approvals if any unenforceable portion of this Agreement shall result in the inability of DEVELOPER to construct, market or sell any material portion of the Project. -10- 14. Attorneys' Fees and Costs. If TOWN or DEVELOPER initiates any action at law or in equity to enforce or interpret the terms and conditions of this Agreement, the prevailing party shall be entitled to recover reasonable attorneys' fees and costs in addition to any other relief to which it may otherwise be entitled. 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 in defending such action. DEVELOPER shall bear its own costs of defense as a real party in interest in any such action, and shall reimburse TOWN for all reasonable court costs and attorneys' fees expended by TOWN in defense of any such action or other proceeding. 15. Transfers and Assignments. 15.1 Right to Assign. DEVELOPER'S rights hereunder may be transferred, sold or assigned in conjunction with the transfer, sale, or assignment of all or a portion of the Property subject hereto at any time during the term of this Agreement, provided that no transfer, sale or assignment of DEVELOPER's rights hereunder shall occur without the prior written notice to TOWN and approval by the TOWN Council, which approval shall not be unreasonably withheld or delayed. The TOWN Council shall consider the matter within 30 days after DEVELOPER's notice. If DEVELOPER does not receive written notice of disapproval within the thirty (30) day period, the TOWN shall be deemed conclusively to have approved the assignment. Notwithstanding the foregoing, the TOWN's approval shall not be required for any transfer, such as assignment to (i) an entity in which DEVELOPER or its partners own at least twenty five percent (25%) of the ownership interest; or (ii) any person or entity with a net worth in excess of One Million Dollars ($1,000,000) or; or (iii) an entity for financing purposes only as long as DEVELOPER remains responsible for all obligations under this Agreement. 15.2 Release Upon Transfer. Upon the transfer, sale, or assignment of DEVELOPER's rights and interests hereunder pursuant to Paragraph 15.1, above, (other than an assignment pursuant to clause (iii) thereof), DEVELOPER shall be released from the obligations under this Agreement, with respect to the Property transferred, sold, or assigned, arising subsequent to the date of TOWN Council approval of such transfer, sale, or assignment; provided that any transferee, purchaser, or assignee approved by the TOWN Council expressly assumes the obligations of [)EVELOPER under this Agreement, DEVELOPER shall be released with respect to all such assumed obligations. In any event, the transferee, purchaser, or assignee shall be subject to all the provisions hereof and shall provide all documents, certifications and other reasonably necessary information to the TOWN prior to TOWN Council approval. -11- 15.3 Termination of Agreement Upon Sale of Individual Lots to Public. Notwithstanding any provisions of this Agreement to the contrary, the burdens of this Agreement, except those relating to special assessments, fees for ongoing services or taxes, shall terminate as to any lot which has been finally subdivided and individually (and not in "bulk"), leased (for a period of longer than one year (excluding the sale and lease-back of model homes)) or sold to the purchaser or user thereof and thereupon and, without the execution or recordation of any further document or instrument, such lot shall be released from and no longer be subject to or burdened by the provisions of this Agreement; provided, however, that the benefits of this Agreement shall continue to run as to any such lot until a building is constructed on such lot, or until the termination of this Agreement, if earlier, at which time this Agreement shall terminate as to such lot. At any time upon ten (10) days notice, the TOWN shall execute and deliver a suitable instrument releasing this Agreement as an encumbrance of record for such lots properly designated in DEVELOPER's Notice. 16. Agreement Runs with the Land. 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 servitude and shall constitute covenants running with the land pursuant to applicable laws, including, but not limited to, Section 1468 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. 17. Bankruptcy. The obligations of this Agreement shall not be dischargeable in bankruptcy. 18. Notices. -'"All notices'required or' provided 'for under this Agreement shall be in writing and delivered in person or sent by certified mail, postage prepaid. Notices required to be given to the TOWN shall be addressed as follows: -12- Town Manager Town of Danville 510 La Gonda Way Danville, CA 94526-1722 Notices required to be given to DEVELOPER shall be addressed as follows: Kaufman and Broad of Northern California 3130 Crow Canyon Place, Suite 300 San Ramon, CA 94583 Attn: Richard Ambrosini With a copy to: William A. Falik, Esq. 100 Tunnel Road Berkeley, CA 94705 With a copy to: John B. Bertero III, Esq. Kaufman and & Broad Home Corporation 5000 Hopyard Road, Suite 190 Pleasanton, CA 94583 A party may change address by giving notice in writing to the other party and thereafter all notices shall be addressed and transmitted to the new address. Notices shall be deemed given and received upon personal delivery, or if mailed, upon the expiration of 48 hours after being deposited in the United States Mail. 19. Agreement is Entire Understanding. This Agreement constitutes the entire understanding and agreement of the parties concerning the Property, its development, and the Project Approvals. 20. Incorporation of Recitals and Exhibits. The recitals to this Agreement are incorporated herein and are a part hereof. 21. Counterparts. This Agreement is executed in two (2) duplicate originals, each of which 'is deemed 'to be an original. Facsimile signatures are acceptable provided the originals thereof are promptly provided. 22. Recordation. The TOWN shall record a copy of this Agreement -13- within ten days following execution by all parties. IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed as of the Effective Date. TOWN OF DANVILLE: Mayor: Mike Doyle 6~' I ,1997 Date: ~ ' ~ DEVELOPER: Kaufman and Broad of Northern California, Inc. a California Corporation By: ~ Name: ~ate: APPROVED AS TO FORM: Town Attorney: Date: ,/Ot_fi/ $t9 ,1997 · c~,- t- ,1997 William A. Falik, Esq. Date: , '1997 -14- within ten days {oilowing execution by all partie~. IN W1TN~ WHERI~OF, ilhe parii~s hereto have caused this be executed as of the. Ef'fectiv~ Dat~. TOWN OF DANVILLE; By: Date: ,1997 Mayor: Mike Doyle DEVELOPER: Kaufman and Broad of Northern California, Inc, a California Corporation By: Da~e: Name: Its: APPROVED AS TO FORM: Town Attorney: - · ,, /.---/ ,, .. William A. Falik, Esq. Date; Date: ,1997 -14- 07/31/97 11:35 TX/RX N0.6915 P.001 EXHIBIT A LEGAL DESCRIPTION REAL PROPERTY in an unincorporated area, County of Contra Costa, State of California, described as follows: Portion of the southeast 1/4 of Section 31, Township 1 South, Range 1 East, Mount Diablo Base and Meridian, described as follows: Beginning at the southeast comer of said Section 31; thence from said point of beginning North 00 10' 12" West along the East line of said Section 31, 1,450.90 feet to the center line of the County Road known as Tassajara Road. Being the North line of the parcel of land described as Parcel Three in the Deed to Vivian Coats Edmonston, recorded June 22, 1936, Book 413, Official Records, Page 382; thence North 890 54' 52" West, along said center line 1 ;628.52 feet to the center line of Laurence Road, as described in the Deed to Contra Costa County, recorded January 19, 1939, Book 474, Official Records, Page 449; thence along said center line as follows: South 80 12' 38" East, 439.59 feet; South 310 44' East, 605.14 feet; South 330 28' East 437.55 feet; and southerly along the arc of a curve to the right with a radius of 750 feet an arc distance of 160.86 feet to the South line of said Section 31; thence North 890 45' East along said South line 937.79 feet to the point of beginning. EXCEPTING THEREFROM: The interest conveyed to Contra Costa County, by Deeds recorded January 19, 1939, Book 474, Official Records, Page 449 and recorded February 11, 1960, Book 3555, Official Records, Page 498. AP .No.: 206-020-014 - First American Title