Agenda packet — Clayton City Council, August 20, 2024

_____________________________________________________________________________________________ City Council Agenda August 20, 2024 Page 1

CLAYTON CITY COUNCIL

REGULAR MEETING AGENDA
Tuesday, August 20, 2024
7:00 p.m.

Hoyer Hall, Clayton Community Library
6125 Clayton Road, Clayton, CA 94517
Zoom Videoconference and Call-in:

Webinar: https://us02web.zoom.us/j/81342918951
Telephone: 1 + (669) 900 - 9128 Webinar ID: 813 4291 8951

1. CALL TO ORDER AND ROLL CALL

2. PLEDGE OF ALLEGIANCE

3. PUBLIC COMMENT ON NON - AGENDA ITEMS
Members of the public may address the City Council on non-agendized items within the Council’s jurisdiction. To ensure an orderly meeting and an equal opportunity for everyone, each speaker is limited to three (3) minutes, or the time established by the Mayor. In accordance with State Law, no action may take place on any item not appearing on the posted agenda. The Council may respond to statements made or questions asked or may at its discretion request staff to report back at a future meeting concerning the matter.

Public comment and input on other agenda items will be allowed when each item is considered by the Council.

Jim Diaz, Mayor
Kim Trupiano, Vice Mayor Peter Cloven, Councilmember
Holly Tillman, Councilmember Jeff Wan, Councilmember
_____________________________________________________________________________________________ City Council Agenda August 20, 2024 Page 2

4. CONSENT CALENDAR
Consent Calendar items are typically routine in nature and are considered for approval by one single motion. Members of the Council, audience, or Staff wishing an item removed from the Consent Calendar for purpose of public comment, question, discussion, or alternative action may request so through the Mayor. a. Approval of Meeting Minutes
i. July 16, 2024 Regular Meeting
ii. July 23, 2024 Special Meeting
iii. July 30, 2024 Special Meeting
(City Clerk) (View)
b. Approve the following recommendations:
(The Budget and Audit Committee reviewed and recommend this item at their August 12, 2024, meeting; Item 5.)
1) Waive the City of Clayton’s (City) Procurement Policy to permit the City to utilize an Omni procurement of a lawn mower to acquire one new Lazer Z Diesel 43.5 horsepower (HP) Yanmar lawnmower with a 144” UltraCut RD Deck;
2) Authorize the City Manager to execute the purchase agreement with Furber Saw to acquire one new Lazer Z Diesel 43.5 horsepower (HP) Yanmar lawnmower with a 144” UltraCut RD Deck for an amount not to exceed $75,364.22, in a form acceptable to legal counsel; and 3) Authorize the Interim City Manager or his designee to take any other actions that may be necessary to give effect to the above-listed actions. (Assistant City Manager)
(View)

5. RECOGNITIONS AND PRESENTATIONS
a. Proclaiming September as Childhood Cancer Awareness Month b. Employee Appreciation Certificates
c. Proclamation Honoring Contra Costa County Fire Protection District Assistant Chief Lon Goetsch on his Retirement

6. REPORTS
a. City Manager / Staff
• Link to ClearGov Transparency Portal:
https://cleargov.com/california/contra-costa/city/clayton/checkbook _____________________________________________________________________________________________ City Council Agenda August 20, 2024 Page 3

7. PUBLIC HEARINGS
a. Oak Creek Canyon Project, Public Hearing on an Appeal of the Planning Commission’s One-Year Extension of the Oak Creek Canyon Residential Planned Development Permit for Six Residential Units Located on the North Side of Marsh Creek Road and the Intersection of Diablo Parkway. (Interim Community Development Director)
(View)

8. ACTION ITEMS
a. Receive an update from the City Manager’s Office on the City of Clayton Strategic Plan, Implementation Action Plan.
(The Budget and Audit Committee reviewed and recommend this item at their August 12, 2024, meeting; Item 6.)
(Assistant City Manager)
(View)
b. Authorize the Mayor to execute the City Manager’s Employment Agreement (City Attorney)
(View)

9. COUNCIL ITEMS – Limited to Council requests and directives for future meetings.

10. COUNCIL REPORTS

11. ADJOURNMENT
The next regularly scheduled meeting of the City Council will be September 17, 2024.
_____________________________________________________________________________________________ City Council Agenda August 20, 2024 Page 4
Meeting Information and Access
• A complete packet of information containing staff reports and exhibits related to each public item is available for public review in City Hall located at 6000 Heritage Trail and on the City’s website at www.claytonca.gov
• Agendas are posted at: 1) City Hall, 6000 Heritage Trail; 2) Library, 6125 Clayton Road; 3) Ohm’s Bulletin Board, 1028 Diablo Street, Clayton; and 4) City Website at www.claytonca.gov
• Any writings or documents provided to a majority of the City Council after distribution of the agenda packet and regarding any public item on this agenda will be made available for public inspection in the City Clerk’s office located at 6000 Heritage Trail during normal business hours and is available for review on the City’s website at www.claytonca.gov
• If you have a physical impairment requiring special accommodation to participate, please call the City Clerk’s office at least 72 hours (about 3 days) before the meeting on (925) 673-7300.

Remote Access
The public may attend City Council meetings in-person or remotely via livestream on the City’s website and through Zoom. As a courtesy, and technology permitting, members of the public may continue to provide live remote oral comment via the Zoom video conferencing platform. However, the City cannot guarantee that the public’s access to teleconferencing technology will be uninterrupted, and technical difficulties may occur from time to time. Unless required by the Brown Act, the meeting will continue despite technical difficulties for participants using the teleconferencing option.

1. Videoconference: Click or visit the link on the front page of the meeting agenda.

To access the webinar, you may download the Zoom client application or connect to the meeting in the web browser. You will be asked to enter your email address and name.

When the Mayor calls your item of interest, click the “raise hand” icon to be added to the speaker queue. The Clerk will identify you by name and you will hear “you have been unmuted” when it is your turn to provide public comment.

2. Phone-in: Dial the telephone number provided on the front page of the agenda.

When prompted, enter the meeting ID. Once connected you will hear the meeting discussions but will remain muted. When your item of interest is called, please dial *9 to “raise hand” and be added to the speaker queue. The Clerk will identify you by the last 4-digits of your phone number and you will hear “you have been unmuted” when it is your turn to provide public comment. To toggle between mute/unmute on your device, please dial *6.
_____________________________________________________________________________________________ City Council Agenda August 20, 2024 Page 5

3. E-mail Public Comments: Public comment may also be sent to the City Clerk at [email protected] by 5:00 p.m. on the day of the meeting. All e-mailed public comments will be forwarded to the entire City Council and made part of the official meeting file.

Each person attending the meeting in-person, via videoconference, or call-in and who wishes to speak on an agendized or non-agendized matter (within the council’s jurisdiction), shall have a set amount of time to speak as determined by the Mayor. ____________________________________________________________________________ City Council Minutes July 16, 2024 Page 1

MINUTES
OF THE

REGULAR MEETING

CLAYTON CITY COUNCIL
TUESDAY July 16, 2024

1. CALL TO ORDER AND ROLL CALL – The meeting was called to order at 6:00 p.m. by Mayor Diaz, held in-person from Hoyer Hall, Community Library, 6125 Clayton Rd., Clayton, California and virtually via Zoom. Councilmembers present:

Mayor Diaz, Vice Mayor Trupiano, and Councilmembers: Cloven, Tillman, and Wan. Staff present: Interim City Manager, Adam W. Politzer; Financial Advisor, Regina Rubier; Police Chief, Richard McEachin; City Clerk/Assistant to the City Manager, Stephanie Cabrera-Brown and Administrative Assistant, Lauren Stevens

2. PLEDGE OF ALLEGIANCE – Led by Mayor Diaz.

3. PLANNING COMMISSION INTERVIEWS
Conduct interviews to fill three Planning Commission vacancies and select three candidates to appoint to a two-year term ending June 30, 2026, to the Planning Commission under item 8a.

The Mayor provided a brief overview of the candidate interview process.

Richard Enea, Dan Richardson, and Maria Shulman each provided a summary of their experience and time serving on the Planning Commission.

Nathalie Archangel-Montijo and Nate Bzrovich each provided a summary of their experience relative to the vacancies.

Appointment of the selected candidates took place as Action Item 8a.

4. CLOSED SESSION
a. Public Employment (Gov. Code 54957)
Title: City Manager
Conference with Labor Negotiators (Gov. Code 54957.6)
Agency designated representatives: Vice Mayor Trupiano and Councilmember Cloven
Unrepresented employee: City Manager
Action: Staff given direction; No reportable action was taken. (Back to Agenda)
4a Attachment i.
____________________________________________________________________________ City Council Minutes July 16, 2024 Page 2

5. PUBLIC COMMENT ON NON - AGENDA ITEMS
Members of the public may address the City Council on non-agendized items within the Council’s jurisdiction. To ensure an orderly meeting and an equal opportunity for everyone, each speaker is limited to three (3) minutes, or the time established by the Mayor. In accordance with State Law, no action may take place on any item not appearing on the posted agenda. The Council may respond to statements made or questions asked or may at its discretion request staff to report back at a future meeting concerning the matter.

Public comment and input on other agenda items will be allowed when each item is considered by the Council.

Larry McNeil – Spoke regarding the Clayton Pride Parade.

Jim Killeren – Spoke in support of the City Council’s work and regarding fire security.

Gary Hood – Spoke regarding claytonwatch.org.

Bill Walcott – Spoke regarding claytonwatch.org and the landscaping on the postal property.

Dane Horton – Thanked the Council for their service, the Clayton community, and the freedom of choice.

Scott Denslow – Spoke regarding a previous speaker and shared his vision for Clayton politics.

Roy Carrera – Spoke regarding previous speakers, requested an update on the City Manager recruitment and recommended community engagement in the process.

The Mayor recessed the meeting at 7:27 p.m. and reconvened the meeting at 7:30 p.m.

6. CONSENT CALENDAR
It was moved by Vice Mayor Trupiano, seconded by Councilmember Tillman, to approve Consent Calendar items 6(a) to 6(c) as presented. (Passed; 5- 0). a. Approval of Meeting Minutes
i. June 4, 2024 Regular Meeting
ii. July 9, 2024 Special Meeting
(City Clerk)
4a Attachment i.
____________________________________________________________________________ City Council Minutes July 16, 2024 Page 3
b. Approve the purchase of a 2025 Ford Police Interceptor Utility vehicle to replace an unserviceable police vehicle, along with emergency equipment outfitting and identifying decals, as follows: purchase of a 2025 Ford Police Interceptor Utility vehicle from Folsom Lake Ford, purchase of emergency equipment and labor to install equipment by Lehr Auto, and application of identifying decals by Fast Signs, for a total of $88,030.72 from the Capital Equipment Replacement Fund (CERF).
(Police Department)
c. Award the Construction Contract to Rapid Grading Services from Hayward, CA for the total bid amount of $651,011.59; authorize project expenditure up to $814,000 (includes a 25% contingency); approve project construction plans in accordance with the design immunity requirements listed under California Government Code 830.6; and authorize the City Manager to execute the contract on behalf of the City.
(City Engineer)

7. RECOGNITIONS AND PRESENTATIONS
a. Contra Costa Water District Update (Contra Costa Water District) Contra Costa Water District (CCWD) Board President David Avila presented an update on the CCWD operations, future projects, and answered questions from the council and community.

Bill Wallcott – Requested additional information on drought protocols and water supply.

8. REPORTS
a. City Manager / Staff

1. Link to ClearGov Transparency Portal:
https://cleargov.com/california/contra-costa/city/clayton/checkbook Interim City Manager, Adam W. Politzer provided an update on the City Manager and Assistant City Manager/Administrative Services Director recruitment, and shared that Finance Advisor, Regina Rubier accepted the Assistant City Manager/Administrative Services Director position and will start in August. 4a Attachment i.
____________________________________________________________________________ City Council Minutes July 16, 2024 Page 4

9. PUBLIC HEARINGS
a. Open the Public Hearing, receive public comments, on Proposed Real Property Assessments for the Diablo Estates at Clayton Benefit Assessment District (BAD), close the Public Hearing, and take action to adopt a Resolution which allows for the annual levying of assessments. (City Engineer)
Mayor Diaz opened the Public Hearing. City Engineer, Larry Theis provided a brief overview , on Proposed Real Property Assessments for the Diablo Estates at Clayton Benefit Assessment District. Mayor Diaz opened public comment; there were no speakers to this item. Mayor Diaz closed the Public Hearing.

It was moved by Councilmember Wan, seconded by Councilmember Tillman, to adopt a Resolution establishing the Real Property Assessments for the Diablo Estates at Clayton Benefit Assessment District Fiscal Year 2024-25 as amended:

To include: The Fiscal Year 2024-24 maximum assessment per parcel is proposed to be $4,409.39 which includes a 4% increase over the existing Fiscal Year 2023-24 maximum rate of $4,239.80 per year. (Passed; 5- 0).

10. ACTION ITEMS
a. Adopt a Resolution appointing three (3) individuals to the Planning Commission for a 2-year term, expiring June 30, 2026.   (City Clerk) City Clerk, Stephanie Cabrera-Brown provided an overview of the Planning Commission appointment process and interviews conducted under Item .

• Dan Richardson
• Maria Shulman
• Richard Enea
(Passed; 5-0)
4a Attachment i.
____________________________________________________________________________ City Council Minutes July 16, 2024 Page 5
b. Authorize the Interim City Manager to execute Amendment No. 2 to the City of Clayton’s Professional Services Agreement with Theis Engineering & Associates for City Engineering Services for additional limited time public works management services, with no extension to the time, for an additional amount not to exceed $37,200. (Interim City Manager)
Interim City Manager, Adam W. Politzer introduced Financial Advisor, Regina Rubier who provided an overview of Amendment No. 2 to the City of Clayton’s Professional Services Agreement with Theis Engineering.

Following discussion by the City Council, Mayor Diaz opened the item to public comment; there we no members of the public wishing to speak to this item
It was moved by Councilmember Wan, seconded by Vice Mayor Trupiano, to approve Amendment No. 2 to the City of Clayton’s Professional Services Agreement with Theis Engineering.(Passed; 5-0)
c. Adopt a Resolution ordering the levy and collection of special taxes and setting forth the special tax amount for Community Facilities District (CFD) 2006-1 (Downtown Park Operation and Maintenance) for Fiscal Year 2024 - 25. (Finance Advisor)
Financial Advisor, Regina Rubier provided an overview of the levy and collection of special taxes and setting forth the special tax amount for Community Facilities District (CFD) 2006-1 (Downtown Park Operation and Maintenance) for Fiscal Year 2024 - 25
Following discussion by the City Council, Mayor Diaz opened the item to public comment; there we no members of the public wishing to speak to this item.

It was moved by Councilmember Wan, seconded by Councilmember Cloven, to adopt a Resolution ordering the levy and collection of special taxes and setting forth the special tax amount for Community Facilities District (CFD) 2006-1 (Downtown Park Operation and Maintenance) for Fiscal Year 2024 -

25. (Passed; 5-0)
4a Attachment i.
____________________________________________________________________________ City Council Minutes July 16, 2024 Page 6
d. Adopt a Resolution ordering the levy and collection of special taxes and setting forth the special tax amount for Community Facilities District (CFD) No. 2007-1 (Citywide Landscape Maintenance Tax) for Fiscal Year 2024 -

25. (Finance Advisor)
Financial Advisor, Regina Rubier provided an overview of the levy and collection of special taxes and setting forth the Community Facilities District (CFD) No. 2007-1 (Citywide Landscape Maintenance Tax) for Fiscal Year 2024 - 25.

Following discussion by the City Council, Mayor Diaz opened the item to public comment; there we no members of the public wishing to speak to this item.

It was moved by Councilmember Wan, seconded by Councilmember Tillman to adopt a Resolution ordering the levy and collection of special taxes and setting forth the special tax amount for the Community Facilities District (CFD) No. 2007-1 (Citywide Landscape Maintenance Tax) for Fiscal Year 2024 - 25. (Passed; 5-0)
e. Establish the appropriations limit applicable to the City of Clayton (City) during Fiscal Year (FY) 2024-25 as $14,632,351.

Financial Advisor, Regina Rubier provided an overview of the appropriations limit applicable to the City of Clayton (City) during Fiscal Year (FY) 2024-25 as $14,632,351.

Following discussion by the City Council, Mayor Diaz opened the item to public comment; there we no members of the public wishing to speak to this item.

It was moved by Councilmember Wan, seconded by Vice Mayor Trupiano to establish the appropriations limit applicable to the City of Clayton (City) during Fiscal Year (FY) 2024-25 as $14,632,351. (Passed; 5-0)

11. COUNCIL ITEMS – Limited to Council requests and directives for future meetings.

Councilmember Tillman requested to discuss the LMD Sunset date, a potential joint meeting with the Trails and Landscape Committee, and a discussion with the City Attorney to discuss hiring an independent third party to investigate treatment of City Hall employees.

Mayor Diaz would like to schedule a joint meeting with the Mount Diablo School District.
4a Attachment i.
____________________________________________________________________________ City Council Minutes July 16, 2024 Page 7

12. COUNCIL REPORTS
Councilmember Cloven thanked the Special Events Committee and Sandy Johnson for the 4th of July Parade and met with community members.

Councilmember Wan attended meetings for the Budget and Audit Committee Meetings, Cintra Ad Hoc Committee, and the City Manager Recruitment.

Councilmember Tillman attended meetings for: Clayton Pride; met with the Financial Advisor; League of California Cities – Policy Committee; Mount Diablo Education Board; City Manager Interviews; attended: the outgoing Community Development Director’s farewell party; award ceremony for Clayton Pride; CBCA Roundup and the BBQ and Brews Festival; League of California Cities Bocce Tournament; 4th of July Parade; will share Clayton Firewise Oakhurst assessment information; and shared that Chick Boss had reopened downtown.

Vice Mayor Trupiano attended meetings for: Clayton Library Foundation; East Contra Costa Conservancy Meeting; City Sponsored Special Events; Cemex, City Manager Interviews; Budget and Audit Committee; Energy Services and Infrastructure Committee; Mayors’ Conference; and attended: 4th of July Parade.

Mayor Diaz attended meetings for: Mayors’ Conference; County Connection, Art and Wine; Car shows; attended: CBCA Roundup; July 4th Parade; and shared information regarding National Night out with the Clayton Police Department on August 6, 2024, at 6:00 pm.

13. ADJOURNMENT
On a call by Mayor Diaz, the City Council adjourned its meeting at 8:45 p.m. in memory of Clayton Library Foundation Founder Jeanne Boyd Please note the Minutes of this meeting set forth all actions taken by the City Council on the matters stated, but not necessarily in the chronological sequence in which the matters were taken up.

Respectfully submitted,
________________________________
Stephanie Cabrera-Brown, City Clerk

APPROVED BY THE CLAYTON CITY COUNCIL
______________________________________
Jim Diaz, Mayor
4a Attachment i.
____________________________________________________________________________ City Council Special Meeting Minutes July 23, 2024 Page 1

MINUTES
OF THE

SPECIAL MEETING

CLAYTON CITY COUNCIL

TUESDAY, July 23, 2024

1. CALL TO ORDER AND ROLL CALL – The meeting was called to order at 4:00 p.m. by Mayor Diaz, held in-person at the City Hall, 1st Floor Conference Room, 6000 Heritage Trail, Clayton, California. Councilmembers present: Mayor Diaz, Vice Mayor Trupiano, and Councilmembers Cloven, Tillman, and Wan.

Staff present: Interim City Manager Adam W. Politzer.

2. CLOSED SESSION
a. Public Employee Appointment (Gov. Code 54957)
Title: City Manager
Action: Staff provided with direction; no reportable action was taken.

5. ADJOURNMENT
On a call by Mayor Diaz, the City Council adjourned its meeting at 9:45 p.m.

The next meeting will be on Tuesday, August 20, 2024.

Please note the Minutes of this meeting set forth all actions taken by the City Council on the matters stated, but not necessarily in the chronological sequence in which the matters were taken up.

Respectfully submitted,
________________________________
Stephanie Cabrera-Brown, City Clerk

APPROVED BY THE CLAYTON CITY COUNCIL
______________________________________
Jim Diaz, Mayor
4a Attachment ii.
____________________________________________________________________________ City Council Special Meeting Minutes July 30, 2024 Page 1

MINUTES
OF THE

SPECIAL MEETING

CLAYTON CITY COUNCIL

TUESDAY, July 30, 2024

1. CALL TO ORDER AND ROLL CALL – The meeting was called to order at 5:09 p.m. by Mayor Diaz, held in-person at the City Hall, 1st Floor Conference Room, 6000 Heritage Trail, Clayton, California. Councilmembers present: Mayor Diaz, Vice Mayor Trupiano, and Councilmembers Cloven, Tillman, and Wan.

Staff present: Interim City Manager Adam W. Politzer.

2. CLOSED SESSION
a. Public Employee Appointment (Gov. Code 54957)
Title: City Manager
Action: Staff provided with direction; no reportable action was taken.

5. ADJOURNMENT
On a call by Mayor Diaz, the City Council adjourned its meeting at 8:45 p.m.

The next meeting will be on Tuesday, August 20, 2024.

Please note the Minutes of this meeting set forth all actions taken by the City Council on the matters stated, but not necessarily in the chronological sequence in which the matters were taken up.

Respectfully submitted,
________________________________
Stephanie Cabrera-Brown, City Clerk

APPROVED BY THE CLAYTON CITY COUNCIL
______________________________________
Jim Diaz, Mayor
4a Attachment iii.

City Council Agenda Item 4b Page 1 of 4 August 20, 2024 City Council Agenda Item 4b

STAFF REPORT
TO: Honorable Mayor and Councilmembers
FROM: Regina Rubier, Assistant City Manager
DATE: August 20, 2024
SUBJECT: Waive Requirements of the Procurement Policy and Authorize the Purchase of One New Lazer Z Diesel 43.5 horsepower Yanmar Lawnmower with a 144” UltraCut RD Deck for the Maintenance Staff not to exceed $75,364.22 and authorize the Interim City Manager or his designee to take any other actions that may be necessary to give effect to the above-listed actions

RECOMMENDATION
Approve the following recommendations:
(The Budget and Audit Committee reviewed and recommend this item at their August 12, 2024 meeting; Item 5.)
1) Waive the City of Clayton’s (City) Procurement Policy to permit the City to utilize an Omni procurement of a lawn mower to acquire one new Lazer Z Diesel 43.5 horsepower (HP) Yanmar lawnmower with a 144” UltraCut RD Deck; 2) Authorize the City Manager to execute the purchase agreement with Furber Saw to acquire one new Lazer Z Diesel 43.5 horsepower (HP) Yanmar lawnmower with a 144” UltraCut RD Deck for an amount not to exceed $75,364.22, in a form acceptable to legal counsel; and
3) Authorize the Interim City Manager or his designee to take any other actions that may be necessary to give effect to the above-listed actions.

BACKGROUND
The City joined OMNIA Partners, the largest and most experienced purchasing organization for public and private sector procurement. Its immense purchasing power and industry- (Back to Agenda)
City Council Agenda Item 4b Page 2 of 4 August 20, 2024 leading suppliers have produced an extensive portfolio of procurement solutions and partnerships, making OMNIA Partners the most valued and trusted resource for organizations nationwide. At its June 4, 2024, meeting, the Council adopted Resolution 29-2024, approving the Final Fiscal Year 2024-25 General Fund Budget, which includes the Capital Equipment Replacement Fund. The Capital Equipment Replacement Fund for this fiscal year does not allow for the replacement of one Lazer Z Diesel lawn mower; therefore, this purchase will need a budget adjustment from Fund Balance.

The City of Clayton’s Maintenance Department currently operates a fleet of two large turf mowers. The newer of the two, a Toro lawn mower purchased in 2013 for $22,689.52, is currently undergoing repairs due to a hydraulic line break and is now 11 years old. The second mower, a Toro Grounds Master 300, was acquired in 1993, making it 31 years old. Despite previous efforts to repair and replace parts on this mower, it has reached the end of its usable life as replacement parts are no longer available. Consequently, the City no longer has a spare riding lawn mower for emergency backup.

DISCUSSION
The Exmark manufactures the Lazer Z Diesel 43.5 HP** Yanmar 3TNV86CT Diesel w/144" UltraCut RD Deck, Susp Seat & 15" Semi-Pneumatic lawn mower. With the Flex Wing cutting deck, the Lazer Z Diesel can mow 11.5 acres per hour, making it the most productive mower Exmark has built. Powered by a cutting-edge Yanmar diesel engine, large drive tires allow you to reach ground speeds up to 12.5 miles per hour. The Exmark delivers a highquality cut, the flex wings on the 144-inch deck pivot 20-degrees up and 15-degrees down on sloping terrain. The Lazer Z Diesel zero-turn mower delivers unparalleled durability and precision maneuverability.

The Exmark 144” Lazer Z Diesel lawn mower offers City Staff a reduction in breakdowns, more efficiency, better performance, higher safety standards, fuel efficiency, environmental benefits, improved technology and comfort. The new mower will also reduce fuel costs because it mows at twice the width of the current mower and a reduction in employee time, allowing staff to perform other duties.

The Lazer Z Diesel 43.5 HP Yanmar 3TNV86CT Diesel with a 144" UltraCut RD Deck, Susp Seat & 15" Semi-Pneumatic Lawn Mower is more efficient and safer than the 2013 and 1993 Toro lawn mowers for several reasons:

1. Advanced Engine Technology: The Lazer Z Diesel features a modern Yanmar 3TNV86CT diesel engine with 43.5 HP, which provides more power and torque compared to the older engine in the Toro Groundsmaster 360. Newer engines are generally more fuel-efficient and have better performance characteristics.

2. Advanced Deck Design: The UltraCut RD Deck on the Lazer Z provides a more refined cutting mechanism with improved guards and safety features to prevent debris from being thrown out uncontrollably. This design reduces the risk of injury from flying debris.

City Council Agenda Item 4b Page 3 of 4 August 20, 2024

3. Larger Cutting Deck: The 144" UltraCut RD Deck on the Lazer Z allows for a much wider cutting path than the Groundsmaster 360. This means you can cover more ground in less time, making mowing more efficient.

4. Improved Deck Design: The UltraCut RD Deck on the Lazer Z is designed for superior cut quality and efficiency. Modern deck designs often include better airflow and cutting technology, resulting in a cleaner, more even cut and less need for multiple passes.

5. Improved Visibility: Modern mowers like the Lazer Z are designed with better visibility in mind. Enhanced visibility can help the operator see potential obstacles and avoid collisions more easily compared to older models like the Groundsmaster 360.

6. Suspension Seat: The Lazer Z’s suspension seat provides added comfort and reduces operator fatigue and vibrations, which can improve productivity and efficiency over long mowing sessions. This can decrease the likelihood of operator errors and accidents that might occur due to discomfort or physical strain.

7. Semi-Pneumatic Tires: The 15" semi-pneumatic tires on the Lazer Z offer better durability and less maintenance compared to traditional pneumatic tires. They also provide improved traction and stability, which can enhance mowing efficiency. The tires are designed to be more durable and less prone to punctures than pneumatic tires. This reduces the risk of sudden tire failures, which can lead to loss of control and potential accidents.

8. Enhanced Maneuverability: Newer mowers often feature improved steering and maneuverability, making it easier to navigate around obstacles and achieve a more precise cut.

9. Fuel Efficiency: The diesel engine in the Lazer Z is likely to be more fuel-efficient than the older diesel engine in the Groundsmaster 360. Which equates to spending less time fueling and more time mowing.

10. Modern Technology: The Lazer Z is equipped with the latest advancements in lawnmower technology, which can include better engine management systems, more efficient cooling, and enhanced controls for improved overall performance.

11. Modern Safety Features: The Lazer Z Diesel is equipped with the latest safety technologies and features, which are often updated to meet current safety standards. This includes enhanced operator protection systems, more robust safety switches, and automatic shut-off mechanisms that may not be present in the older Groundsmaster 360.

12. Lower Maintenance Requirements: Newer models are designed with improved reliability and durability, meaning they often require less frequent maintenance and repairs compared to older equipment.

13.Compliance with Regulations: Newer mowers are built to meet current emissions and safety standards, which can contribute to better overall efficiency and a reduced environmental impact.

14.Better Ergonomics: Modern mowers often feature ergonomic controls and improved design for ease of use. This makes it easier for operators to control the mower safely and efficiently, reducing the risk of mishaps.

City Council Agenda Item 4b Page 4 of 4 August 20, 2024

15.Enhanced Stability: The newer design and engineering of the Lazer Z typically offer better stability and balance, which helps prevent tipping and loss of control. This is especially important on uneven or sloped terrain.

16.Compliance with Current Standards: The Lazer Z Diesel adheres to current safety regulations and standards, which means it includes updated safety features and complies with modern safety protocols that older models like the Groundsmaster 360 may not.

17.Operator Training and Manuals: Newer equipment often comes with comprehensive training materials and updated operator manuals that provide detailed safety instructions and guidelines, helping operators understand and use the equipment safely.

18.Noise and Vibration Reduction: Advances in engine and deck technology have led to reduced noise and vibration levels in newer models, which can contribute to a safer operating environment by minimizing distractions and reducing physical stress on the operator.

Overall, the combination of a more powerful engine, advanced deck technology, better comfort features, and modern design improvements make the Lazer Z Diesel a more efficient choice compared to the 1993 Toro Groundsmaster 360.

FISCAL IMPACT
The City has not purchased a new lawn mower since 2013 nor is this purchase included in the FY 2024-25 budget therefore, staff is requesting a budget amendment in the amount of $75,364.22 from the General Fund, fund balance.

CEQA IMPACT
None

ATTACHMENTS

1. Quote from Furber Saw for lawnmower purchase
4b Attachment 1
City Council Agenda Item 7a Page 1 of 5 August 20, 2024 Appeal of One-Year Extension of the Development Plan Permit for the Oak Creek Canyon Residential Development City Council Agenda Item 7a

STAFF REPORT
TO: Honorable Mayor and Councilmembers
FROM: Daniel J. Hortert, AICP, Interim Community Development Director DATE: August 20, 2024
SUBJECT: Oak Creek Canyon Project, Public Hearing on an Appeal of the Planning Commission’s one-year extension of the Oak Creek Canyon Residential Planned Development Project for Six Residential Units Located on the North Side of Marsh Creek Road and the Intersection of Diablo Parkway

RECOMMENDATION
That the City Council conduct the Public Hearing, accept written and spoken testimony, close the public hearing and adopt the attached Resolution upholding the decision by the Planning Commission to approve a one-year extension of the Development Plan Permit (DP-01-19) for the Oak Creek Canyon Residential Development as found in the Draft Resolution in Attachment 1.

SUMMARY OF PROJECT AND PROJECT ACTIONS
In 2018 and 2019, West Coast Home Builders, Inc. (the Applicant), submitted applications to the City for various entitlements requesting approval of an Initial Study/Mitigated Negative Declaration (IS/MND), Vesting Tentative Map, General Plan Map Amendment, Specific Plan Map Amendment, Zoning Map Amendment, Development Plan, and Tree Removal Permit to construct the Oak Creek Canyon Project, a proposed single-family residential development of six single-family houses on nine acres in Clayton. Land use approvals requested by the Applicant for the Project include:

1. General Plan Map amendment to remove the Public/Quasipublic (PQ) designation from the property, and to expand the boundaries of portions of the property designated Single-Family Low Density (LD) and Private Open Space (PR) to allow the construction of the Project (GPA-02-18);
(Back to Agenda)
City Council Agenda Item 7a Page 2 of 5 August 20, 2024 Appeal of One-Year Extension of the Development Plan Permit for the Oak Creek Canyon Residential Development

2. Marsh Creek Road Specific Plan (MCRSP) Map Amendment to change the land use designation on a portion of the property from Open Space to Private Open Space (SPA-01-18);

3. Zoning Map Amendment to rezone the site from R-10 (Single-Family Residential, 10,000 square foot minimum lot size) District and PF (Public Facility) District to PD (Planned Development) District (ZOA-01-18);

4. Vesting Tentative Map to subdivide the 9.03-acre property into six single-family residential lots with private open space (MAP-01-16);

5. Development Plan Review of the architecture of the proposed residences, each approximately 3,049 to 4,488 square feet in area and 23 to 32 feet in height, along with Project-related landscaping, drainage, fencing, lighting, and retaining walls (DP-01- 19);

6. Tree Removal Permit to remove nine of the 21 trees on the Project site and replace the removed trees with newly planted trees, shrubs, and groundcover (TRP-31-19).

The 9.03-acre site of the proposed Project is on the north side of Marsh Creek Road at its intersection with Diablo Parkway, Assessor’s Parcel Number (APN) 119-070-008.

California Government Code Sections 65354, 65453, 65855 and Clayton Municipal Code Section 17.56.060, identify the Planning Commission as the advisory body to the City Council on amendments to the General Plan, Specific Plan or Zoning Ordinance. After considering written and spoken testimony at public hearings conducted on December 22, 2020, and February 23, 2021, the Planning Commission expressed concerns about the adequacy of the information provided by the Applicant to fully and accurately describe the proposed Project and its related improvements. With these concerns, the Commission directed staff to prepare findings and a resolution recommending denial of the Project without prejudice, which the Commission adopted on March 9, 2021.

The Applicant subsequently filed an appeal of the Planning Commission’s decision to the City Council and resubmitted plans intended to address inconsistencies and other concerns identified at the Commission’s public hearings. On June 29, 2021, the City Council voted to reverse the Planning Commission decision to deny the project and upheld the applicants appeal and approved the project and City Council adopted Resolutions No. 38-2021, 39-2021, 40-2021, and 41-2021 adopting the Initial Study/Mitigated Negative Declaration (ENV 02-16), approving the General Plan Amendment (GPA 02-18) and the Specific Plan Amendment (SPA 01-18), and conditionally approving the Vesting Tentative Map (MAP 01-16), Development Plan Permit (DP 01-19), and Tree Removal Permit (TRP31-19) for the Oak Creek Canyon residential project. Furthermore, the Council adopted Ordinance 493 approving the Zoning Map Amendment request (ZOA 02-18). Resolution 41-2021 is attached to this Staff Report (Attachment 2).

EXTENSION REQUEST
Pursuant to section 17.28.190 of Clayton Municipal Code (CMC) as written on the effective date of the entitlements, if construction pursuant to a Development Plan Permit approval had not commenced within 18 months of the City Council’s approval, the City Council Agenda Item 7a Page 3 of 5 August 20, 2024 Appeal of One-Year Extension of the Development Plan Permit for the Oak Creek Canyon Residential Development Development Plan Permit would become void.0F
1 CMC section 17.28.190 goes on to state that
“[t]he Planning Commission or City Council, on appeal, may grant extensions to commence construction for not more than one year at a time upon showing of good cause.” As the Development Plan Permit (DP-01-19) became effective on August 19, 2021 (the effective date of the Rezoning Ordinance 493), that permit was set to expire on February 19, 2023, if construction had not started or a request for extension was not filed prior to that date.

On January 20, 2023, in accordance with the provisions of CMC section 17.28.190, the Applicant filed a timely request for a one-year extension of the Development Plan Permit granted for the Project. The extension request was filed as a result of Project delays caused by the COVID-19 pandemic and limited design consultant availability over the past three years.

On February 14, 2023, following a public hearing at which written and/or spoken testimony was accepted, the Clayton Planning Commission adopted Resolution No. 02-2023 (Attachment 3) approving a one-year extension of the approval of the Development Plan Permit (DP-01-19) for the Oak Creek Canyon Residential Development. A copy of Resolution No. 02-2023 is attached to this Staff Report.

Construction of the Oak Creek Canyon Residential Development has not begun. On February 14, 2024, prior to the new expiration date and in accordance with the provisions of CMC section 17.28.190, the Applicant filed a timely request for a second, one-year extension of Development Plan Permit DP-01-19 granted for the Project (Attachment 4).

On February 27, 2024, following a public hearing at which written and/or spoken testimony was accepted, the Clayton Planning Commission adopted Resolution No. 01-2024 (Attachment 5) approving a one-year extension of the approval of the Development Plan Permit (DP-01-19) for the Oak Creek Canyon Residential Development.

BACKGROUND OF APPEAL
On March 8, 2024, the City received an application for an Appeal of a Planning Commission Decision from Moita & Moita, LLC on behalf of Clayton Estates, LLC. The decision by the Planning Commission to extend the Development Plan Permit DP-01-19 by one year to February 27, 2025, is the only action under appeal. Per the Appellant’s narrative, he is suggesting that the basis for the appeal is a violation of the 2019 Housing Crisis Act.

This Development Plan Permit approval is the subject of the Appeal Hearing. The City Council is requested to uphold the Planning Commission decision and staff’s original recommendation 1 CMC 17.28.190 was amended effective February 15, 2024, to extend the initial term of approval of a Development Plan Permit to 24 months. The code section as written on the effective date of the Oak Creek Canyon Development Plan Permit approval set the initial term of approval at 18 months.

City Council Agenda Item 7a Page 4 of 5 August 20, 2024 Appeal of One-Year Extension of the Development Plan Permit for the Oak Creek Canyon Residential Development to extend the Development Plan Permit an additional year. Because the appellant’s appeal narrative raises several objections to the City Council’s 2021 approval of the Project, it should be noted that only the February 27, 2024, decision by Planning Commission to extend the Project’s Development Plan Permit is subject to appeal. The 2021 entitlements cannot be appealed.

The reasoning conveyed in the appeal request is not pertinent to the Planning Commission decision approving a one-year extension to exercise the Development Plan Permit approval granted by the Clayton City Council on June 29, 2021. The application narrative submitted by Moita & Moita, LLP can be found in Attachment 6. A response to the appeal from the Project applicant can be found in Attachment 7.

ANALYSIS
It is staff’s opinion that the Applicant has shown good cause and, consequently, recommends approval of the Applicant’s request for extension of the Development Plan Permit for the Project. While construction on the Project has not yet begun, the Applicant has indicated that pre-construction work has been ongoing, inclusive of submittal of a first draft of the Final Map for the subdivision and field work to identify locations of petroleum pipelines within existing easements on the property. Staff understands that the Applicant still intends to pursue development of the Project should the extension of the Development Plan Permit be approved.

ENVIRONMENTAL REVIEW
In compliance with CEQA, the City prepared the draft IS/MND and MMRP for the proposed Project. The draft IS/MND evaluated the potential project-related environmental impacts:
aesthetics, agriculture resources, air quality, biological resources, cultural resources, energy, geology and soils, greenhouse gas emissions, hazards and hazardous materials, hydrology and water quality, land use and planning, mineral resources, noise, population and housing, public services, recreation, transportation/circulation, tribal cultural resources, utilities and service systems, wildfire, and mandatory findings of significance. Of the 20 environmental resources evaluated, the draft IS/MND identified five environmental factors that are “potentially significant”: biological resources, cultural resources, geology and soils, hazards and hazardous materials, and tribal cultural resources. Mitigation measures have been provided for the five potentially significant impacts, thereby reducing the project impacts on the environment to a “less-than-significant” level. The evaluations, impacts, and mitigation measures are described in detail in the IS/MND.

The draft IS/MND was circulated for a 20-day public review period between August 21, 2020, and September 8, 2020. The draft IS/MND, comments received during the public comment period, responses to comments and revisions to the draft IS/MND are available for review at the Community Development Department on the third floor of City Hall.

City Council Agenda Item 7a Page 5 of 5 August 20, 2024 Appeal of One-Year Extension of the Development Plan Permit for the Oak Creek Canyon Residential Development

PUBLIC COMMENTS
There were no public comments at the hearing about extending the Development Plan project other than the Oak Creek Canyon applicant and Vince Moita of Moita & Moita, LLP.

FISCAL IMPACT
There are no immediate fiscal impacts associated with the application.

ATTACHMENTS

1. Draft Resolution to Uphold Planning Commission Decision

2. City Council Resolution No. 41-2021

3. Planning Commission Resolution No. 02-2023

4. Applicant Request for Second One-year Extension

5. Planning Commission Resolution No. 01-2024

6. Moita & Moita, LLP Application Narrative

7. Project Applicant Response to Appeal

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RESOLUTION NO. XX - 2024

OAK CREEK CANYON PROJECT, PUBLIC HEARING ON AN APPEAL OF THE PLANNING COMMISSION’S ONE-YEAR EXTENSION OF THE OAK CREEK

CANYON RESIDENTIAL PLANNED DEVELOPMENT PROJECT FOR SIX

RESIDENTIAL UNITS LOCATED ON THE NORTH SIDE OF MARSH CREEK ROAD

AND THE INTERSECTION OF DIABLO PARKWAY

THE CITY COUNCIL
City of Clayton, California
WHEREAS, the City received an application from West Coast Home Builders (Applicant) requesting review and consideration of applications for Environmental Review pursuant to the California Environmental Quality Act (ENV-02-16), a Tentative Subdivision Map (MAP-01-16), a General Plan Map Amendment (GPA-02-18), a Specific Plan Map Amendment (SPA-01-18), a Zoning Map Amendment (ZOA-01-18), a Development Plan Permit (DP-01-19) and a Tree Removal Permit (TRP-31-19) for the subdivision and development of six single-family residences on approximately 9.03-acres (“Project”). The Oak Creek Canyon Residential Project site is located on the north side of Marsh Creek Road at its intersection with Diablo Parkway, Assessor’s Parcel Number 119-070-008; and
WHEREAS, the City prepared a draft Initial Study/Mitigated Negative Declaration (“IS/MND”) and Mitigation Monitoring and Reporting Program (MMRP) to evaluate the potential environmental impacts of the Project, in accordance with Section 15063 of Title 14 of the California Code of Regulations, the California Environmental Quality Act (“CEQA”) Guidelines; and
WHEREAS, following public hearings conducted on December 22, 2020, and February 23, 2021, the Planning Commission expressed concerns about the adequacy of the information provided by the Applicant to fully and accurately describe the proposed Project and its related improvements, and subsequently, on March 9, 2021, the Commission adopted Resolution No. 01-2021 recommending denial of the Project without prejudice; and
WHEREAS, at its regular meeting of June 29, 2021, the Clayton City Council conducted a duly noticed public hearing on the appeal of the denial of the Project and received and considered testimony and evidence, both oral and documentary; and WHEREAS, following close of the June 29, 2021, public hearing, the Council adopted Resolutions No. 38-2021, 39-2021, 40-2021 and 41-2021 adopting the IS/MND and MMRP for the Project, amending the General Plan Map and Marsh Creek Road Specific Plan (MCRSP) Land Use Map, and approving the Development Plan and Tree Removal Permits for the Project. At that meeting, the Council also introduced Ordinance 493 approving the Zoning Map Amendment for the Project. The Council adopted Ordinance 493 at a subsequent meeting on July 20, 2021; and WHEREAS, on February 14, 2023, the project was approved for a one-year 7a Attachment 1
_____________________________________________________________________________ Resolution No. XX-2024 Page 2 of 2 August 20, 2024
extension which was approved by Planning Commission Resolution No. 02-2023; and WHEREAS, on February 27, 2024, the Oak Creek Canyon development project was approved for a second one-year extension by Planning Commission Resolution No. 01-2024; and
WHEREAS, on March 8, 2024, an appeal to the Planning Commission decision outlined in Planning Commission Resolution No. 01-2024 was submitted to the City; and WHEREAS, the basis for the appeal is that it does not comply with the Marsh Creek Road Specific Plan and that it conflicts with the Housing Crisis Act of 20169; and NOW, THEREFORE, BE IT RESOLVED, the City Council of the City of Clayton, California, does hereby make the following findings:

A. The City Council does hereby find and affirm the above noted Recitals are true and correct and are hereby incorporated in the body of this Resolution as if restated in full.

NOW, THEREFORE, BE IT FURTHER RESOLVED, that the City Council of the City of Clayton does hereby uphold the Planning Commission decision to approve a oneyear extension of the Oak Creek Canyon Development Project.

PASSED, APPROVED AND ADOPTED by the City Council of Clayton, California at a regular public meeting thereof held on August 20, 2024, by the following vote:

AYES:

NOES:

ABSENT:

ABSTAIN:

THE CITY COUNCIL OF CLAYTON, CA

__________________________________
Jim Diaz, Mayor
ATTEST:
___________________________________
Stephanie Cabrera-Brown, City Clerk
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CITY OF CLAYTON

PLANNING COMMISSION
RESOLUTION NO. 02-2023

A RESOLUTION OF THE CLAYTON PLANNING COMMISSION APPROVING A

ONE-YEAR EXTENSION OF THE APPROVAL OF THE DEVELOPMENT PLAN PERMIT (DP-01-19) FOR THE OAK CREEK CANYON RESIDENTIAL PROJECT WHEREAS, the City received an application from West Coast Home Builders (Applicant) requesting review and consideration of applications for Environmental Review pursuant to the California Environmental Quality Act (ENV-02-16), a Tentative Subdivision Map (MAP-01-16), a General Plan Map Amendment (GPA-02-18), a Specific Plan Map Amendment (SPA-01-18), a Zoning Map Amendment (ZOA-01-18), a Development Plan Permit (DP-01-19) and a Tree Removal Permit (TRP-31-19) for the subdivision and development of six single-family residences on approximately 9.03-acres (“Project”). The Oak Creek Canyon Residential Project site is located on the north side of Marsh Creek Road at its intersection with Diablo Parkway, Assessor’s Parcel No. 119-070-008; and
WHEREAS, the City prepared an Initial Study/Mitigated Negative Declaration (“IS/MND”) and Mitigation Monitoring and Reporting Program (“MMRP”) to evaluate the potential environmental impacts of the Project, in accordance with the California Environmental Quality Act (“CEQA,” Public Resources Code section 21000 et seq.) and section 15063 of the State CEQA Guidelines (California Code of Regulations section 15000 et seq.); and
WHEREAS, following public hearings conducted on December 22, 2020, and February 23, 2021, the Planning Commission expressed concerns about the adequacy of the information provided by the Applicant to fully and accurately describe the proposed Project and its related improvements, and subsequently, on March 9, 2021, the Commission adopted Resolution No. 01-2021 recommending denial of the Project without prejudice; and
WHEREAS, adoption of Planning Commission Resolution No. 01-2021 terminated proceedings on the Project in accordance with Government Code section 65856 and Clayton Municipal Code (CMC) section 17.28.140, and the Applicant later filed appeal of the decision; and
WHEREAS, at its regular meeting of June 29, 2021, the Clayton City Council conducted a duly noticed public hearing on the appeal of the denial of the Project and received and considered testimony and evidence, both oral and documentary; and WHEREAS, following close of the June 29, 2021, public hearing, the Council adopted Resolutions No. 38-2021, 39-2021, 40-2021 and 41-2021 adopting the IS/MND and MMRP for the Project, amending the General Plan Map and Marsh Creek Road Specific Plan (MCRSP) Land Use Map, and approving the Development Plan and Tree 7a Attachment 3
Planning Commission
Resolution No. 02-2023

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Removal Permits for the Project. At that meeting, the Council also introduced Ordinance 493 approving the Zoning Map Amendment for the Project. The Council adopted Ordinance 493 at a subsequent meeting on July 20, 2021; and WHEREAS, the approvals of the General Plan and MCRSP amendments became effective upon their adoption on June 29, 2021. Rezoning Ordinance 493 became effective on August 19, 2021, or 30 days after Ordinance 493 was adopted. In accordance with Condition No. 17 of Resolution No. 41-2021, the Vesting Tentative Map, Development Plan Permit and Tree Removal Permit approvals became effective on the effective date of the Rezoning Ordinance 493; and
WHEREAS, pursuant to CMC section 17.28.190, if construction pursuant to a Development Plan Permit approval has not commenced within 18 months of the City Council’s approval, the Development Plan Permit becomes null and void. CMC section

17.28.190 goes on to state that “[t]he Planning Commission or City Council, on appeal, may grant extensions to commence construction for not more than one year at a time upon showing of good cause.” As the Development Plan Permit became effective on August 19, 2021 (the effective date of the Rezoning Ordinance 493), that permit would expire on February 19, 2023, if construction had not started or a request for extension was not filed prior to that date; and
WHEREAS, construction of the Oak Creek Canyon Residential Development has not begun, and on January 20, 2023, in accordance with the provisions of CMC section

17.28.190, Doug Chen representing West Coast Home Builders, Inc., filed a timely request for a one-year extension of the Development Plan Permit granted for the Project.

The extension request was filed as a result of Project delays caused by the COVID-19 pandemic and limited design consultant availability over the past three years; and.

WHEREAS, on February 2, 2023, notice of a public hearing to consider the request for a one-year extension of the Development Plan Permit was posted at the notice boards at Clayton City Hall, Clayton Community Library, and at the Ohm’s posting in the Town Center, was electronically mailed to the Applicant and to interested parties who had requested such notice; and was mailed via first class mail to owners of property within 300 feet of the Project site; and
WHEREAS, on February 14, 2023, the Clayton Planning Commission held a dulynoticed public hearing on the request for extension of the Development Plan Permit (DP01-19) for the Oak Creek Canyon Residential Development, and received and considered testimony and evidence, both oral and documentary.

NOW, THEREFORE, the Planning Commission hereby determines the foregoing recitals to be true and correct and makes the following findings:

A. The Applicant has shown good cause for extension of the Development Plan Permit previously approved for the Project. The COVID-19 pandemic has affected businesses, construction costs and supply chains in various 7a Attachment 3
Planning Commission
Resolution No. 02-2023

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ways, including reduced availability of contractors and design consultants.

With reduced availability of consultants, preparation and review of final improvement plans for the project have taken longer than the 18 months allowed by default in Clayton Municipal Code section 17.28.190, but, as the Applicant has already submitted final improvement plans for plan check, exercise of entitlements associated with the Project is anticipated to be completed within the one-year extension of time requested by the Applicant.

B. Nothing in the Applicant’s request for extension of current entitlements for the Project triggers new discretionary review or revision of the land use entitlements previously granted by the City, as no changes are proposed to be made to the Project as originally approved. With the one-year extension, all Conditions of Approval adopted by the City Council with Resolution No. 41-2021 will continue to be applicable to the Project.

C. Prior to approving the Project on appeal, the City Council adopted Resolution No. 38-2021 adopting an IS/MND, approving an MMRP, and making findings pursuant to CEQA, including a finding that, based on evidence in the record, the Project would not have a significant effect on the environment with the incorporation of the mitigation measures identified in the MMRP. No additional findings are necessary for CEQA compliance for the current request for extension of entitlements of the approved Project.

The impacts of approving the extension of time—separate and apart from any development—would be limited to the impacts of signing a piece of paper. Signing a piece of paper, if separated from the underlying development it allows, cannot qualify as a project subject to CEQA because it would not result in either a direct or reasonably foreseeable indirect physical change in the environment. (State CEQA Guidelines, section 15060, subd. (c)(1)-(3), and section 15378, subd. (a).) NOW, THEREFORE, BE IT RESOLVED, the Planning Commission hereby approves the request for a one-year extension, to February 19, 2024, of the term of the approval of the Development Plan Permit (DP-01-19) for the Oak Creek Canyon Residential Project on 9.03 acres on the north side of Marsh Creek Road at its intersection with Diablo Parkway, Clayton. The record of proceedings for this matter is located at the City of Clayton, City Hall, 6000 Heritage Trail, Clayton, CA 94517. The custodian of records is the City Clerk.
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7a Attachment 3
Planning Commission
Resolution No. 02-2023
PASSED AND ADOPTED by the Planning Commission of the City of Clayton at a regular meeting on the 14th day of February 2023.

AYES:

NOES:

ABSTAINED:

ABSENT:

APPROVED:
~ _______,.
namrdson
Chair
Cesarin, Enea, Miller, Richardson, Shulman
none
none
none
ATTEST:

DanaAyeri,icP
Community Development Director

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Attachment B

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CITY OF CLAYTON

PLANNING COMMISSION
RESOLUTION NO. 01-2024

A RESOLUTION OF THE CLAYTON PLANNING COMMISSION APPROVING A

ONE-YEAR EXTENSION OF THE APPROVAL OF THE DEVELOPMENT PLAN PERMIT (DP-01-19) FOR THE OAK CREEK CANYON RESIDENTIAL PROJECT WHEREAS, the City received an application from West Coast Home Builders (Applicant) requesting review and consideration of applications for Environmental Review pursuant to the California Environmental Quality Act (ENV-02-16), a Tentative Subdivision Map (MAP-01-16), a General Plan Map Amendment (GPA-02-18), a Specific Plan Map Amendment (SPA-01-18), a Zoning Map Amendment (ZOA-01-18), a Development Plan Permit (DP-01-19) and a Tree Removal Permit (TRP-31-19) for the subdivision and development of six single-family residences on approximately 9.03-acres (“Project”). The Oak Creek Canyon Residential Project site is located on the north side of Marsh Creek Road at its intersection with Diablo Parkway, Assessor’s Parcel No. 119-070-008; and
WHEREAS, the City prepared an Initial Study/Mitigated Negative Declaration (“IS/MND”) and Mitigation Monitoring and Reporting Program (“MMRP”) to evaluate the potential environmental impacts of the Project, in accordance with the California Environmental Quality Act (“CEQA,” Public Resources Code section 21000 et seq.) and section 15063 of the State CEQA Guidelines (California Code of Regulations section 15000 et seq.); and
WHEREAS, following public hearings conducted on December 22, 2020, and February 23, 2021, the Planning Commission expressed concerns about the adequacy of the information provided by the Applicant to fully and accurately describe the proposed Project and its related improvements, and subsequently, on March 9, 2021, the Commission adopted Resolution No. 01-2021 recommending denial of the Project without prejudice; and
WHEREAS, adoption of Planning Commission Resolution No. 01-2021 terminated proceedings on the Project in accordance with Government Code section 65856 and Clayton Municipal Code (CMC) section 17.28.140, and the Applicant later filed appeal of the decision; and
WHEREAS, at its regular meeting of June 29, 2021, the Clayton City Council conducted a duly noticed public hearing on the appeal of the denial of the Project and received and considered testimony and evidence, both oral and documentary; and 7a Attachment 5
Planning Commission
Resolution No. 01-2024

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WHEREAS, following close of the June 29, 2021, public hearing, the Council adopted Resolutions No. 38-2021, 39-2021, 40-2021 and 41-2021 adopting the IS/MND and MMRP for the Project, amending the General Plan Map and Marsh Creek Road Specific Plan (MCRSP) Land Use Map, and approving the Development Plan and Tree Removal Permits for the Project. At that meeting, the Council also introduced Ordinance 493 approving the Zoning Map Amendment for the Project. The Council adopted Ordinance 493 at a subsequent meeting on July 20, 2021; and WHEREAS, the approvals of the General Plan and MCRSP amendments became effective upon their adoption on June 29, 2021. Rezoning Ordinance 493 became effective on August 19, 2021, or 30 days after Ordinance 493 was adopted. In accordance with Condition No. 17 of Resolution No. 41-2021, the Vesting Tentative Map, Development Plan Permit and Tree Removal Permit approvals became effective on the effective date of the Rezoning Ordinance 493; and
WHEREAS, pursuant to CMC section 17.28.190 as written on the effective date of the entitlements, if construction pursuant to a Development Plan Permit approval had not commenced within 18 months of the City Council’s approval, the Development Plan Permit would become void. CMC section 17.28.190 goes on to state that “[t]he Planning Commission or City Council, on appeal, may grant extensions to commence construction for not more than one year at a time upon showing of good cause.” As the Development Plan Permit became effective on August 19, 2021 (the effective date of the Rezoning Ordinance 493), that permit would expire on February 19, 2023, if construction had not started or a request for extension was not filed prior to that date; and WHEREAS, construction of the Oak Creek Canyon Residential Development has not begun, and on January 20, 2023, in accordance with the provisions of CMC section

17.28.190, Doug Chen representing West Coast Home Builders, Inc., filed a timely request for a one-year extension of the Development Plan Permit granted for the Project due to Project delays caused by the COVID-19 pandemic and limited design consultant availability over the past three years. Following a duly noticed public hearing held at its regular meeting of February 14, 2023, the Planning Commission adopted Resolution No. 02-2023 extending the term of approval of DP-01-19 for one year, to February 19, 2024; and
WHEREAS, on February 16, 2024, notice of a public hearing to consider the request for a second one-year extension of the Development Plan Permit was posted at the notice boards at Clayton City Hall, Clayton Community Library, and at the Ohm’s posting in the Town Center, was electronically mailed to the Applicant and to interested parties who had requested such notice; and was mailed via first class mail to owners of property within 300 feet of the Project site; and
WHEREAS, on February 27, 2024, the Clayton Planning Commission held a dulynoticed public hearing on the request for extension of the Development Plan Permit (DP01-19) for the Oak Creek Canyon Residential Development, and received and considered testimony and evidence, both oral and documentary.
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Planning Commission
Resolution No. 01-2024

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NOW, THEREFORE, the Planning Commission hereby determines the foregoing recitals to be true and correct and makes the following findings:

A. The Applicant has shown good cause for approval of the request for extension of the Development Plan Permit for the Project. While construction on the Project has not yet begun, the Applicant has indicated that pre-construction work has been ongoing, inclusive of submittal of a first draft of the Final Map for the subdivision and field work to identify locations of petroleum pipelines within existing easements on the property. The Applicant has expressed intent still to pursue development of the Project and to obtain approval of a Final Map for the subdivision.

B. Nothing in the Applicant’s request for extension of current entitlements for the Project triggers new discretionary review or revision of the land use entitlements previously granted by the City, as no changes are proposed to be made to the Project as originally approved. With this one-year extension, all Conditions of Approval adopted by the City Council with Resolution No. 41-2021 will continue to be applicable to the Project.

The impacts of approving the extension of time—separate and apart from any development—would be limited to the impacts of signing a piece of paper. Signing a piece of paper, if separated from the underlying development it allows, cannot qualify as a project subject to CEQA because it would not result in either a direct or reasonably foreseeable indirect physical change in the environment. (State CEQA Guidelines, section 15060, subd. (c)(1)-(3), and section 15378, subd. (a).) NOW, THEREFORE, BE IT RESOLVED, the Planning Commission hereby approves the request for a one-year extension, to February 19, 2025, of the term of the approval of the Development Plan Permit (DP-01-19) for the Oak Creek Canyon Residential Project on 9.03 acres on the north side of Marsh Creek Road at its intersection with Diablo Parkway, Clayton. The record of proceedings for this matter is located at the City of Clayton, City Hall, 6000 Heritage Trail, Clayton, CA 94517. The custodian of records is the City Clerk.
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7a Attachment 5
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Clayton Planning Commission Extension Appeal RE: Oak Creek Canyon Second Extension Attorneys at Law
Vincent A. Moita
(925) 783-9688
[email protected]
PO Box 880
Seal Beach, CA 90740
MoitaLaw.com
Joseph D. Moita
(925) 783-6260
[email protected]
March 8, 2024
City of Clayton
Planning Commission
6000 Heritage Trail,
Clayton, CA 94517

SENT VIA EMAIL & PERSONAL DELIVERY
Phone: 925-673-7300
Email: Community Development Director - [email protected]; Assistant Planner - [email protected]
Re: Request for Extension of Approval of the Development Plan Permit (DP-01-19) for the Oak Creek Canyon Development – Planning Commission Appeal Dear City of Clayton,
It shocks the conscience when one understands what has happened with this project under the City of Clayton’s stewardship and is a prime example of poor government management. As we understand it, the following events occurred with relation to the Oak Creek Canyon Development Project (the “Project”):
 1990 - The City of Clayton announced the initial study for a specific plan that would become known as the Marsh Creek Road Specific Plan (“MCRSP”) and had affected property owners contribute financial support for the study and planning.  1995 - The City of Clayton adopted the MCRSP, which allowed 5-homes on the subject property and identified a portion of the North State’s land (Westcoast’s predecessor) to be used as the detention basin for all of Subsection A of the specific plan.  1995 - The City of Clayton and West Coast Builders, Inc. (“West Coast”) entered into a 10-year development agreement with a specific requirement of building a shared detention basin for Subsection A of the Marsh Creek Road Specific Plan. See attached Exhibit A.
 2005 - West Coast filed and received approval to annex to the City of Clayton for a 5-unit subdivision that mandatorily required a detention basin sized for Subsection A of the MCRSP on the approved vesting tentative map. Due to the Great Financial Crisis, the life of the vesting tentative map was extended until 2016 as a matter of public policy. 7a Attachment 6
March 8, 2024

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Clayton Planning Commission Extension Appeal RE: Oak Creek Canyon Second Extension  2016 - West Coast resubmitted plans with changes to the COA’s that the City of Clayton denied creating potential legal liability.
 2016 - The City of Clayton and West Coast entered into a tolling agreement to preserve West Coast’s standing to sue based on the denied project.  The tolling agreement was extended 5 times.
 2021 - West Coast was granted (DP-01-19) a new plan with 6 homes, a general plan amendment (GPA-02-18), and a specific plan amendment (SPA-01-18) which included plans to build over the original MCRSP’s identified detention basin that previously required 7.8-acre feet of storm drainage volume.

We take issue with the 2021 project in that it violates the MCRSP and infringes up on the rights of the former Heartland and now Moita, and Morgan properties, as well as effectuating a downzoning in direct conflict with the Housing Crisis Act of 2019:
“(b) (1) Notwithstanding any other law except as provided in subdivision (h), with respect to land where housing is an allowable use, an affected county or an affected city shall not enact a development policy, standard, or condition that would have any of the following effects:
(A)Changing the general plan land use designation, specific plan land use designation, or zoning of a parcel or parcels of property to a less intensive use or reducing the intensity of land use within an existing general plan land use designation, specific plan land use designation, or zoning district in effect at the time of the proposed change, below what was allowed under the land use designation or zoning ordinances of the affected county or affected city, as applicable, as in effect on January 1, 2018, except as otherwise provided in clause (ii) of subparagraph (B) or subdivision (h). For purposes of this subparagraph, “reducing the intensity of land use” includes, but is not limited to, reductions to height, density, or floor area ratio, new or increased open space or lot size requirements, new or increased setback requirements, minimum frontage requirements, or maximum lot coverage limitations, or any other action that would individually or cumulatively reduce the site’s residential development capacity.” Cal. Gov. Code Section 66300(b)(1) – 66300(b)(1)(A).

By failing to address the reduced detention basin sizing and allowing West Coast’s Project to change the general plan and specific plan’s land use designations of PQ previously identified as the shared detention facilities location for Subsection A of the MCRSP, the City took actions that “would individually or cumulatively reduce the site’s residential development capacity” Id. As has been the case since 1995, the Project Site was a critical key to unlocking housing development on the remainder of the MCRSP.

While the statute of limitations to challenge land use decisions is short in nature, typically 90 or 180 days, here the Development Plan Permit (DP-01-19) was premised upon a General Plan Amendment (GPA-02-18) and Specific Plan Amendment (SPA-01-18) that we assert fall under 7a Attachment 6
March 8, 2024

Page 3 ends

Clayton Planning Commission Extension Appeal RE: Oak Creek Canyon Second Extension the three year statute of limitations afforded under CCP Section 338.1 The general plan and specific plan amendments effectively downzoned Subsection A by taking away its detention basin facilities, which are contributing to Claytons current and enduring Housing Element noncompliance with the HCD.

The City of Clayton’s current Housing Element, an essential component of the City’s General Plan, has been rejected by the HCD subsequent to approval of DP-01-19, GPA-02-18, and SPA01-18 for among other reasons, the failure to create a complete site analysis per California Gov.

Code Section 65580 et seq. The Housing Element fails to comply with State Housing Element Law. (i.e. Gov. Code, Article 10.6). The City’s failure to include Subsection A of the original MCRSP is among such failures, as the land is currently included in the General Plan and Specific plan maps and is vacant uncommitted land with designation and zoning that allow only residential uses, yet none is included in the housing inventory map presented to the HCD. The City’s complete failure to include Subsection A’s land in the inventory analysis for now several RHNA cycles goes hand in hand with it’s failure adequately impose reasonable conditions of approval on the Project site that would prevent downzoning of the lands of Subsection A.

Subsection A of the MCRSP could accommodate development of above moderate-income housing as well as the City’s Low-Income and Moderate Income Regional Housing Needs Allocation requirements. As the MCRSP envisioned in 1995, development of Subsection A would progress from west to east with the Oak Creek Canyon project being the first development requirement for Subsection A’s subsequent future development. It is counter intuitive that the City would not include Subsection A in this 6th RHNA Cycle given the entire constraint was the build out of the Project.

Since the initial approval of the Project in 2021, the City of Clayton is now mandated to produce 570 new units by 2031 and the identified sites inventory is wholly insufficient to meet such burden. Even as the City contends that it only has 437 units to now meet, among the sites identified in the City of Clayton’s rejected Housing Element (version March 2024), nearly all the sites have long standing uses as single-family homes. There is no indication that the property owners are willing to give up their homes to accommodate density to meet the City’s required goals. The 80% assumption of build out is flawed from the beginning. In fact, many of the identified sites in the rejected 6th RHNA Cycle Housing Element (version March 24) are identical to those identified in the 5th RHNA Cycle Housing Element without basis for change and without adherence to the heightened requirements for underutilized sites included in past housing elements under Government Code § 65583.2(c). The City merely identifies sites with the potential for redevelopment or development without assessing their realistic probability of redevelopment and sweeps them into a bucket under the assumption that 80% will build out. This is a flawed analysis.

What is more, the GPA-02-18, and SPA-01-18 have not been incorporated into the City of Clayton’s General Plan and Specific Plan in accordance with Gov. Code, Section 65359:
1 Travis, supra, 33 Cal.4th 757, 16 Cal.Rptr.3d 404, 94 P.3d 538, see also; Urban Habitat Program v City of Pleasanton (2008) 164 CA4th 1561, 1576.
7a Attachment 6
March 8, 2024

Page 4 ends

Clayton Planning Commission Extension Appeal RE: Oak Creek Canyon Second Extension “Any specific plan or other plan of the city or county that is applicable to the same areas or matters affected by a general plan amendment shall be reviewed and amended as necessary to make the specific or other plan consistent with the general plan” Gov. Code Section 65359.

See also Gov. Code Section 65455:
“No local public works project may be approved, no tentative map or parcel map for which a tentative map was not required may be approved, and no zoning ordinance may be adopted or amended within an area covered by a specific plan unless it is consistent with the adopted specific plan.” Gov. Code Section 65455 State law mandates that the General Plan and Specific Plan amendments must be reviewed to bring about consistency with the amendments with the other provisions of the affected general or specific plans. The GPA-02-18, and SPA-01-18 spoke only to the land use elements and maps of the General and Specific Plan, but provided no analysis, commentary, or findings to update the underlying policies or goals insofar that the MCRSP still requires that the Project site be utilized for the detention basin and sizing for Subsection A of the MCRSP. The physical limitations for the Project, now that the City has unjustly approved an additional housing unit on the prior identified detention basin, make such requirement for the future build out of Subsection A of the MCRSP physically impossible as there is no physical space to treat the 1995 estimated 7.8 acre feet of detention sizing on the current approved Project site. In fact, at the Planning Commission meeting hearing that approved the extension of this project, a brief commentary was provided that the detention facilities sizing standards have changed since 1995 when the MCRSP was adopted. Indeed. However, what the meeting’s commentary was lacking was that standards have increased not decreased, mandating that the Oak Creek Canyon Project should have dedicated more land for the sufficiency of future build out of the MCRSP’s Subsection A.

Should this City amend its General Plan and Specific Plan to come into conformance with the land use changes adopted for the Project, as required by Gov. Code Section 65359, we content it amounts to a regulatory taking by denying the Heartland, Moita, and Morgan sites of their paid for planned detention basin. We estimate the damages from which exceed $30 million dollars.

A reasonable solution would be to deny the extension of the Project, and or modify the conditions of the approval to be in conformance with the longstanding 1995 MCRSP, as the extension request is entirely discretionary. The project applicant should then reapply with a project that is consistent with the MCRSP under Gov. Code Section 65455, and fresh COA’s should be applied that is consistent with the current Housing Element with particular emphasis on how the project relates to the greater Subsection A’s build out. If for nothing else, we find Westcoast’s reasoning for an extension lacking. They have owned the property for over 30 years and have had every opportunity to locate the pipe.

Additionally, I have attached two letters that the City of Clayton did not follow when evaluating the Project. The first is from Rick Agrisani who served as the City of Clayton Engineer for 32 years and recently passed away. The second is from Randy Hatch who was the 10-year Planning Director for the City of Clayton running from 1990 to 2000 when the MCRSP was processed. 7a Attachment 6
March 8, 2024

Page 5 ends

Clayton Planning Commission Extension Appeal RE: Oak Creek Canyon Second Extension Both professionals who worked a combined 42 years for the City of Clayton agreed that the detention basin and all other requirements set forth by the MCRSP should be followed. Instead, the City relied on then Community Development Director Matthew Feske’s analysis, who we can only speculate either stepped down or the City of Clayton fired on March 19, 2021 for reasons undisclosed to us in the middle of this Project’s approvals. The City Council representatives, some of whom remain on this body today, voted against their own long-term employee trusted experts and have now put the City of Calyton in peril. You know who you are, and you caused this problem.

Regardless of how the City rules, our claim under CCP 338 remains. Such actions by the City of Clayton as it pertains to this Project violates State Law and are subject to intervention by the State of California’s Attorney General under California Gov. Code Section 65585.01 which by CC of this letter we are requesting to look into the actions on this Project and also the failures of the numerous shortcomings of the City of Clayton’s rejected Housing Element.

Please do the right thing and not allow one home to jeopardize the development of over 100 approved homes on the adjoining land now owned by Clayton Estates LLC & Jim & Julie Moita.

Regrettably,
__________________
Vincent Moita
Attorney at Law
Clayton Resident 1993-2010
CC:

California Attorney General Housing Strick Force
[email protected]
David Zisser, Assistant Deputy Director of Local Government Relations and Accountability [email protected]
Shannan West, Housing Accountability Unit Chief, California Department of Housing & Community Development
[email protected]
7a Attachment 6
Exhibit A
7a Attachment 6
Reooidlng IJi,quei,1ect sh
f,:anct:i,. pouglna .

Aetvrn 10:·.

Documerrts pmv1ded by DataTre.e LLC v,a ,rs prqpnetlry 11nag1ng and delivery sy_stem Copyright 20~3, All rights reserved COf,/TRA CO Sm Ca Reco"""" 'A 06 6,i,cec
, STF.PHf.N l, WUR., ' Coun-t:y R,,;oN11<i<
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01;.velopmcrit Agx:-cement. b~tween the: C:lty of· Cl,n,yton and WCot· £;oirnt l!om~.

Hu'ildci['tJ,, lnc,
.l:RAM~.:. 0000476.3
7a Attachment 6
I Doc~ments prov,~ed by Data Tree LL\C, y1a ,r\ pro,pne~ry 11nag1ng_ .'!nd delivery system. Copyn~ht 2003, All rights reserved ' . .
,__
.. 1701,Z
J:lE __ VEL~l'. . ,
'l'h:1,n ·neiv~lopm<:nt; l\.~;J:"ecment (h~/rc,.:in1'ttcr thin ,;/\9:r:cetm~nt,") lu ent:erec~ into on ~S-~.k.--~- by nnd • between • l:h" CJ,ty . ot Clayt:on (hereinafter t:he. •city") , and Wei,t: Coo.ot: Horne 1Juilder11, J:nc. (hex-elno.fter •weat Coi,at") . '1.'hia /\gr,:,ement io • entered into with reference to the followin~ Rec:lt:uln: '
A~ ln order. _to ot:r~n9then the publiC' plunning procc~.o, to encour~ge Private P.o.rticipa.tion· -in' com1_JretienDi ve. plu.nning, • Ariel to i'cducc· tho economic· -riokn ot. deirelopment, thC LC!gio.l.':-t.ture of the ....... State. of CQ.liforni{:\ -hao adopteff ,_;ectiono _65061 through '65869. $ -o( ·the Government Code wh.i.ch f'I.Uthor:lze phrt;lc1_1 t,:o ·tml:cr. ifito development ugrccmellto ouch ai1- th:t-n docl.J.m!.!fil • ·rot" p1u:-po:_H:,~ ,o[ fucilitatin9 the development of pfopc,ct:y.

D. 'l'h<, City,· by_ <1dopting RenolutJ.on Na .. lG-U-/, hi>n .:,dopted • rulcu, o.O:ct. ieguln.tion.a eDtnbLlahing proceduren and :r:equiremento 'f!or the Conoidcro.tio.o of dev~lo_p~~nt ag;-eements. , .. ~ C. . , West . Coast • owns in fee t:hat certain un;i.mp,:oved real, .pfoperty consioting of appro,c;imate°iy, 8. 2 _acrea ·locat:cd in the • uninco;i:-po;c-ii.ted t.u;-eo. of Con tr~ Cos to. County, State 'uf• ·co.litornia., . -----,whi:ch-:-properi:y-'j:a more. fU.lly deac:r:i6ed ,and ahown ,Ori l>><hibit /\. ' ' attached hereto and. inco;q,o,:ated by ,:eference· herein ·,(hereinafter "West Coai,t • P,;ope,:ty" or "the fropert:y•) . 'l'he West Coast Property is wJ.t:hin·thc \'qrritoria.J. ophcx-c oJ; inJ:iucnce oi' City, D. West Coust baa. he'retofo:te ind:1.catcd_.;..tn desix-e to deveJ.op tli>(l We,ll;_ Coaot Property in tho. mq,nnel:- • p,:ovided for. in this· ·Agreement withi_n the c;ity, . 'l'o ctccompl'ioh their intent, the partJ.cn hnve hex-etot;ore t<1ken· th10 nctions dcoc,ribed in Che Recital.fl-fle\: fort!; heroin. •
E. ori ·June 28, • 1995, the' City Council of ... the City, nf.ter., duJ.y. complying with .the Californ:ia Environmental Qual·ity Act and all 'otututea, • ordinnnceo and reoolutiono_. appl:lcp.ble to the adoption o~ the . General l'lan Amendment, the Marsh Creek Roa_d Specific_ Plan and, c.ex-ti:Uci,·t:ioi;, or the appropriate envi,:onmental documents, adopteo its. Resolution· No,43C95 "'I?PX"OV-ing the Ma,:l'lh ~ ' ' ' . 7a Attachment 6
I \\
. Documents provided by Da\aTree LLC vta ,rs propnetlr~ 11i,ag1ng and delivery system Copyn,ht 2003, All rights reserved ' •, • .• I • ' • i J
-,
r
I' ' I
Creek' Road General J?lan ,Amendment and . Rt\1iolution No. 11-95 <>pproving the M"roh Creek J(ou<I Speciftc r1'an, •
F. Thin Agre:~ment io· conoiat.ent wit:h the Cl~Y;ton Genera.1 Pl~n', MartJh·' Creek Hoa.d OerH!r~i l1 lan Amt!Udment anct the M<\roh C;z:-cek.

Ro.:ld Spe'cific Plan. •'
. I
G. The tcrmr1 • P.nd conditiono of thin 1\grcerne.rit hn.vt~ .... ln,cn reviewe<I by th" City, . itn i'l1>nn:lng Comml.l'aion ,md itll City cOunc~l and have beon [ound to be fair, juot ufld reauono.ble, t:o be in the beat intere"t of the- ciUzen" of the City, and to aerve public' he,,.lth, ,rnfety, 1'nd welfa,re, And· th'-1 City· Council. h,w • furthei: found that tile ct,,velopm<mt o( t'h<! Prop,,rty. in uccordAncc . with the· Cluy.ton Gem,ral' ,Plan, Mui:.uh Cre~k Ro"'d Gener,11 Pl,:m Amenctment, • the Mo.rah Creek Road SJ.Je~ific Pl~n and. th'ia Agrc~me_nt.:
.,. will provi,de aubotantial • benefito '.to- the City with. respect to implementing . City policies and goals which . promote community, economic, public_ . infrAstructure, and • high j quuJ,ity, m"naged 'development. • • "\, • .
. H. West _Coaot' wUJ. in the future incur st:,batarttilll. cost<J in. order to. dcvcl.op, the Property, • i_n uccord,.nce with thi,1 l\greemen~, e1r1ct • W~at Co<1at would not . incur ,mch f',ture coots wi!'hout obtaining the le·guUy enforceable asaurances wi'th respect to' ,the development, -of·- • ~.he P1:operty a.a· contained. .in thia 'r. Prior to entering i:nto th:i.a Agreement, City complied with uJ.l legal, reguire~entfl , for notice, public h<auringa; findings, votes, r.1,rid other prOc;edul:'ul roa.tt~ra nc_ce:aoa.ry o.a a 'conditi,on- preced~nt to entering into thia l\gre.em~nt.

J. , ln accord,,.nce with Section 65865 (bl of, the Government • Code, •.. tho partieo .• hereto. may enter in a Development • Agreement .befo.re annexation ·of t_he Property'.•to the' City. provid"cl •tJ-u,t, t·he A9reement' ao,1i1. not 'becOme ·operative'. unlCnn ·; ·a·nneXation ,of the Property· t:.o the City :lo ~c;,mpleted withi'n • the period . of time . specified ·by this Agreement or ·by an oxtensipn o'f 't,lme provided' for by tho Agreement. Accordingly, the parties desire ·t<;> . compl€\te 11nnexation of tl'le Property to City -a;n soon as poasi.bl<1, ',
~----'""· • .,_c,..,1auvtgnlk.b/.AmL-----,-----'------'·-2,,__ _ _,,,-----~-----'-----'-----,-------:--, 04/08/9.7
7a Attachment 6
..
·, ' 17,0:tZ

COVENANTS
''
NOW, ' THBREF6.RE, in consideration ·of., th(} a.bovf~ .recitail~, n.nct ·of:· the mut\.-«1 Covr.inanta hcrcina.ftei- cont~incd .fl.nd .tor other 9'ood and -va.lu0iblt.!' coDDlderutJ,on, t·he. receipt. and ~ufficit'!nc"y of which io hereby ·ucknowledged, • t:_he • P"ri:-'.lea agree as follows:
'
l_. .0Ef.1N,I'l'IONS -AND EXHTDT'C9

1. :i. .Def 1 ni t.iorw.. ·rhe following 'terma wtie.:n used in t:hii, Agreem.,nt· oh<>ll. be defined .~n .. follown:
.'1 .1.1_. 11 Ag~eemcnt 11 moans thio Oevalo}Jment
Agreement.
·_ 1.1. 2- 11Agreemenc---:--oa:·e:e" mcana the date t:hif;I Agreement in recorded with th" Contra Coota County Recorder.

J. .1, 3 · ".Cit.y11 , moans the
'municipality duly \nGorp,orl\t<:d under the
·c"1ifornia·:

City of Clayton, a
lawa . of' the State of
• 1. 1 ~ 4 1'0e"'.'elopment II mco.riu .the :lmpr.ovefnerit: • of the Pr6perty -·. for the· pu:r:po.SC:a of; col;Tlplet:.ing • the atrU.ct.ure , . improvr.:monls and ,racilities comprising the J?rojcct including, but not lJ.mited to: grading;. the· con·otruction of i.nf:rast:ructure arid pubi.ic facil!tiea related ·to the .l?rojcct .whethe,: located with:1.n or outside· the J?roperty; tho construction of· buildings and ·ntx:u.ctur~A j o.nd • the· :tnata.1.la.t:lon o_£ la.n'd~c.o.ping,, 11 Dcve·1opmont" doeo not. include .. the mu:lntenance, • repedr, ~econotruct"ion '~:i:- . redevelopment of any buildin9, •st_ructure, improvement or facility •. after the cor;istruction a;,,d completion thei:-eof . . ' '. • ~ . 1,, '1 .-~ ,''Oevelo}?ment Approvals" m'eq,:Oa • all pe:imito' and other ent1tlementa for use that require approval pr i.ssuancc. by City in connection with development·pf the J?roperty including, but m;,t • limited to,
. (a.) General Plan aes:lgna.t.:ions and·a.mcndments;
(b) SJ?ecific plan and· .specific plan amendments,; ' ·. . ( (c) Zoning;
·a.•<:layto~/kb/11,n,1,
04/08/97
FRAME; 00004766 ...-.~~------
I '
7a Attachment 6
I I •
. '
a.pprov~la;
pocuments wov1ded by Data Tree L~C Vlf ,rs proprietary 1mag1•g and delivery system CoQynght 2003, All rights reserved •. • • I • • • . I · I • . ' • .
.
17012
I
(d) T<mt<>tivc arid fi'n<>l ,,ubdi'viaion "nd p<>r.cel
mupa;
(e} Conditional uue pernd..to;
' ( f) • Development Pl1n
(h) Lot lJ.ne adjuutment_a;
(i') Grading and building pe,:mito; und
(j) Occupancy permits
'·

1.1. 6. 11 PevclOpment Exact:i6n 11 .meo.no ~ny
r.etjuireine;;t of th!' City· in· ·conneci:i.on with Ot" pursuant to any larid une-r.cgulation or development approvnl for. the dedication of land, t:he construction or· improvement of publi.c J:ac':l.liti'ei,, or the. p<>yrnent of fees adopted by action of the City .cound.l ,or l.'li'\nning comm:i.r.nion {n • order t.'o leoaen·, .offset,' mit:i.~l'ite or ,. co'mpcnn.1.te for, the impact a of development on '_the •environment. or otJler public inter~st~; e:x:cepti:Og therefrOrn· devpldpmcnt ·exo.ct,iono ~-,---... by <>gencie,.'-other .. -than- the City applied through the land uoc • i,egulation, development approvals or otherwise ovei,,, which· the · '. City_ h~o no din,ct control. •
1 .. 1 . .7 "Effective Dato•'. meuna t:he c;la.t:c the
• P:r,operty ':J.s, amiex<;,d to ·.city .
. l. La· "Existing General J?lan·" means the City's
Gene:i:-al , Plan as amet1ded by the Mo.rsh Creek Road Genc:i:-al Plan . Amendment r,pproved .bY" •. the c;ity council on June. 20.;. l995 _by µaoolut~on No, 43-9S,
i.1.9 "Land. t..Joe Regul~i:.-:l.onrl 11 means o.11
ordino.nceo,. resolut_ions, codeS, . rules, • regulations • a.nd o-fficia.l f>ol:lcies · of City gove;,ning the devel.:,pment • ·and · use • oJ:. l"nd, :i.ncluding; with~ut ~im.i.tat:lon; the permitted · use of land, ·the doi"lsity OX' ·intensity of use, 'subdivision re'guii,ements,. the • ·maximum height an.ct size of.' proposed buildingo, regui:i:-ed • setbacks ·.and· yal:'da, • pi,ovi·sions fo:i:-. i,eservation or dedicat:ion of land for public,, purpos~s, and • the design,· improvement and· conatr,µc_ti~n -.~d•Yton7kb/fllm~
04/08/9?
r 7a Attachment 6
Document~ Pl'JVlded by Data.Tree LLC v,a 1tr proprietary 11nag1ng and delivery system Copyright 2003 fl,11 rights reserved I ' I ' ' • , ' • , ' \ , I
',
i, :1,7012 , . ,
"t"ncl'4rcls. "nd l'pecifii;:at,ionE> "pplicablo to l:hc developin"nt of t)le . Property.
l. 1. lO
that certain specific
"MQ.r.oh. Creek· Roa.d SpecifJ.c Pl.a.n" me~no
pl1rn for the Maran Cre"k Road planning ·i.\rea
• approved by the City Council. on June ·2e, 1995 by .Rr:l'olution No. 44-~5 .. •. '

1. 1. ·11 - "Mortgagee ri ttJ.eo.nr;1 a mort9u.gee·
mol:'t.gage, a, benefici~ry under. a deed· of truat 'oX" n.uy ocicuritr~df-Vi~e lende~ .~nu th~ir ~ucceoaoAO,AOd ~Raigna.

Of a.
other

1.1.12 11 Project_tt meana the, devclopriw~Ilt of the
l'.i:opert:y- allowed by the Exia,:ing Generi,J, Blan, t:he Mi.lrsh Creek Road Specific • Plan and this· 'i\greement -·a.a • such p'roject rnlly be. further defined, enhanced., or rnodHied. pursuant to the pro'finions· , ' ' of this Agreement.
l. l. ;l,3 . "l'roperty" means the J:"cal
described on Exhibit 11A 11 t?· this A~reemex:it;.:.
property
'l,l.H "Resc,rvatic:ina of Aut:hori~,Y" rneano the
rigl;l.tH and uutho;,:;lty -e><ce)?ted from the ,waurances and r~ght>l provided to West .Coast under thio Agreement and reserved t:o Ci_ty under Subsection 3. 7. l 'of 'this. Agreement-:
, 1. 1. 15 11 SubsGqu~nt· Developme_~t A.ppr.oval~ 11 mean □ • all Devel!Jpment l\.ppr.ovala. requii:e,;l or, requested by West Coast .and' approved by City suboequent l:o the Agreement Pal:e in connecl:ioh with develc:,pment of the· Px-op~rt:y.. •
·l .1 ~ :t.6. • 11 Subseque:nt'. DcveJ.opment: Bx.-a.c:iliion.s 11 • mcUno all ·Development Exactions applied to the Development ,:/lpproval-s fol.lowing the Agreement Date. ·
any Land
Agreement.

Use
D.ate.
l. l. ;l, 7 "Subsequent Land
Regula,tiona 'adopted . and
Use Regulations 11 me.o.no
effective af~er the·

1.1. l8 11 We:at Coast II means Wesi.: • Coast Home.
eu±ldero·, :tnC. a,nd. its succ~_s~c;,rs in' iritc:rest' t.o a11· .or any pa.rt. 0£ ):he_ ·west Coast )?,:opert:y.

1.2 ·ExhibitB·.
to,· and by this refex-ence
••c ay~on kb•~~
04/08/97
FRA11~: 000·04768
'rhe foll.owing docum_cnts are attached
made a po.rt:-o'f, this.,.Agrcemen_t:
7a Attachment 6
I,
Documen\ provided by Data Tree ~LC v,a ,rs .proprietary 11nag1ng and delivery system Copyright :J.003, All rights reserved • . . • I • I ~ . • '
'1.701.2
. ,
Exhib;lt 11 A 11 -- Lcgo.l: Det1cription of the West Coat:tt < • I '
e:~hibit 11 n11
Pr~porty dated May 20, ~991,
ConccptUn.1 Pla.n of the We::,t; coa.tJt
I

2. GENERAL PROVISIONS.
·2.1 aindina Effect Pt· Aarccment. The Prop~rty io
hereby mC1do subject to th;l:a Agro<oment. Development of. the Property ~ha.11 be c~-r:riecl out only ·in c.-ccorc.lQ.nco with the .termei • of. _this Agreement,·

2. 2 Ownerohi p ·Of· Prgnerty ~ West Coll.:;3t :re.Pref.lcnta -a.Qcl cavenunto that it is the owne:i:' • of. the fee simple title ta the • Property.

2. J :rm:m, 'rhe term of. this Agreement shC1ll commence on the Agreement Dato and shall continue for·.a. pcdad of. te:n (10) years thereafter unless this te~m ie. modified or cX~Cnded • pursui:mt to the·: provision,a of t.:h:l.a 1\grcement . . :2 .1 , Asai anmcnt. •
• 2.-i.l. • Rfohc ca·11aslgn. ·went:. coa,at:. aha:\.l 1ia,;e-tFi:c," •. ·ri,ght t:.o sell,· transfer,·.or aoo:l.gn it2 l?r<;>po,:ty in whol~ or in • part at _any t.ime ·dudng the term of thio Agreement;, providcct, however, .. that any si.u:;h • aale, • tranofer or assignment shall be made only wii::h notice to the City and·shall inc:ludc, th<: asalgnrnent. Q.Ild aasumpt::ion .of t'he' rights, dutie" and obligations aria:l.ng under or fl:'.om thia Ag:r:eement. , and be made in strict. compliance wJ. t.h the· following· conditions precedent: • ' • • . . • • •
(a) .No· oale, transfer or as(lignment of any right_
or interest: •under th:l'o Agreement shall be made unleas made together with the sale, transfer or assignment oI all or part of the • Pcoper.ty.
(b) concurre;;t with any . such o.ale, t;i,ar,sfer or , . l . , assignment, o:r within thirty· (JO) business• days thereufter,. Weat Coast shall notify .the City in writing· of such sale, transfer or assignment, The rights, duties and. obligat:l.ons or- this 1\greement sl}ull bfl b~nding upo1:1 such pu;r;-chUoer, tra~s~eree -Or Usoigncie. · :" _tJ.-c.l,.a,ytOn/.k,b/11111,1. 6-
==---eo~1,LQJ,L_~~~1-• __
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7a Attachment 6
, I Documents provided by Data Tree LLC v,a ,rs proprietary 11nag1ng and delivery system Copyn~ht 2003, All rights reserved - • I , , \ \
_, ____ I_ ==--=-,a--~==~~•--=--=-=-J-• .:..,,;,., ______ = =-~~~'•--• ~- ,: 1, ,.
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1701~
'A sa.le ,· t:i:-anafe:r, or a,~,a:lgnment 16f th{~ P,r.opertY, in whole or. _in pnrt, "h"ll not, in and of ttneJ.r, ·give City the right-. to ~pply oubiu:!quent Ot::::V(!lopment Ex.-~ction:~ or Buboequent1 Land Uoe Regul~tiona upon.the Project.

2. 4. 2 Rele~sc_of Trnnofei:ri ng Qwne.i:. Upon ouch
abo've-refercnced t.1~l'~, tr~n,uf~r or aoriignmcOt,. the· tro.nofer:t"ing Owner q_h;,11 be r-,l.,i,1,1cd from th"· obl:lgationu net forth in . thio A~reem~nt _oth<!r than thooe • in dcf~uit .and not cured . 'at the concluoion of the tr~nofar.

2.4..J SJltieeaueot Aaaianmcni::. Ar,.y oubsequcnt
a~lc.:, tr~n.ofer or· .aooignment a,ft~.r QO in~ti.o.~ .oa.le, l:n~nnfer' • or a'.ooignm.,nt ohall: _ be made' only in "cco,:,Janee with ;,nd ,rnbjr::ct to. the t:ermo ,rnd conditions of this Section.

2.4.4 :rermfnatioo of Agreerrienl·· With a,·eu<·ct to
Individual Ip1·a Up_on Sale to Public and CompletioO: Of ¢onatructi on. • The provi,iHonO of Sub.s~Ct·io_n 2-.. 4. t .sho,11 ·not apply to _the sale· or 1,,,,o_e of: uny lot _which han bcon subdivided and J.u _ ind:lvidu,.ily (and not in "bulk") .sold or ,leased to·,,· member of th,, pubfiq or other ultimate u1,1c,:, Notwlt:hstnnding ,1r1y other provio ions of this .Agreement,. ~h:l" Agr<:r::mcnt FJh'\ll tei:m:lr,;, t:e with reopcct .. to _nny lot and such lot shaU be releaocd· and ho longer ----~b~e~a_ul,_:)_ec.!:-_\;_o_J;bis. Agreem<>..nLw;LthouJ:.~the __ exc'cution __ or~_recordation:, ______ _ of -,my further document upon· aatis"raet:ion· of all of th,, following. 'conditions: • --- • - •
·(,,) The lot· han been nubdivid,ad and lndlvictunlly
(o.nd not in · 11 bulk 11 ) leo.sed· ·fo'.r a period' 1':")nger the\n one· y_ear,·or aolci t:o· a member· of. the_ .public or_ other 'Ult.i~at;.e uoer. • {-b) A certificnte ·ot oc.cupancy -_has bl!en issu~d
for <1 , bu'ilding on _ the • lot in 'hacordance -'with the Development _ • _ Approv~lo and th i's' Agreement.
(c) . No defaults - e~ist in the_ perrormance of
oblJ.g.>~:lon',, by West Coast under th,; provii,:l.;na 01'. tl:iio_A,ireement.

2.5 AmCnc1ror;;ot o:c· Cancc11nt:lon of Agreement·. This • Agreement • may be amended or canceled' in. whole o,:. in. p<>r't: only by ·wr.i.t ten • -frOOseO,t' of _the_ ,Pai-t'ies. i_n' the . manner provid_ed 't:o"r J..n Sections 101' antl 10~ of Article 1 of • the City's ".Regulat:lono • Establishing Procedures • and Requ.i.renlent·s for· Consideration of D"ve lop.men t !',g;reement:.~p_t:._e..cLl,y_ t;.he_Ci.l:;y_Collllc_i_l.._,o.,_rn..._.cA..,p,.,.__.....___._0c,_ ______ _ -~~~--,.c~~ • .1 • •.~d-.yton/k.b/tun.l.
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7a Attachment 6
,Documents provided by Data Tree LLC v,a ,rs proprietary 1171ag1ng and delivery-system Copyright 2003, All rights reserved . . I . . ; 17012
' I ' 1?67 ;,s Reaolution Na. J.6-87. ("Ci.ty Oev"lopment Agreement, Rqgula.tiona 11 ) and Govcrrimt:nt C_odt~ Sec.:t:1.on 65060. Th.l.P provision sho.ll not limit any·.r.,mccty of City or w.,ut .ca,,ut '"' pravict<>ct ·by thi~ Agreement.

2.6 Termination.
terminateq and of no furt;her
. the tollow~ng ev,;nta:'
Thi,; Agreement nh'all b,o ·deemed
effect uron the OCClO:·rencc of any· of
• (o.) • Bxpiri,tion of ,th"· utr,tcct 'term of ·l:hJ.a Agreement ao o~t forth ill Sec.t.ion :2. 3 .
. lb) Rntry, of " l:in"l judgment. set.ting ·aaid-,,
voiding ·or "nnulling the· adoption or th" ordin1>nce .o.pproving thin Agre~mcnt:
(c). .Completion· of· the development of the· Project
in uccord;mce with the terina of this .Agreement includt'ng :laouatu;:c .. of all r/!quire'd occupancy ·:permit.a ·and· acceptance by the CJ.t:y • and 'lppll.9a.ble • pubJ.:lc ngencies of 1'11 r<lqu:tred ctcdJ.ci.lt::lonll nnct public improvements and SJ>tiafaction of .. 11 obligations of • West Coaat ,. ~e~c~nde:C. ,.. • ' ,. 2 .. 1 J:Zotices.
(a) AQ used in th~a ·Agreement", 11 notiCe 11 includeo, but: · .1.s not lim~tccl .to, the comrnunicat:.ion· _ot riot:lce:·. ·request, • demand, o.pp:t'Ovi.1,l ,. statement., :repa:rt·, aacepta.nce, conacnt, wUi'ver, appointment or ,;,ther cominunication required- ·-or pex-rni tted herCunder: ..
·' (b) All notices shall _be in. writ:ing and ohuil • be conaidered given either: (i) when delivered in person to' t.he. recipient·,.n<1med beiow; or (ii) on the dute of d,;liyery -fll.1own on the x-eturn x-eceipt., • ilfter depo,eit' in 'the .United States muil in " sealed envelope 1'B either. registered. ·or certified • m"il with ret.ur'n receipt rcque,stcd, "'nd pdntagc anct p~st1'i ?h_argea .px-epaid,· and addresfied to the -r<~cipient named.below; or (iii) on the d1'te of cte livery shown :l:n • tnB record" 'of the . tcl.eg raph company aft.er ,, transmission by ·telegraph 'to the recipient numed' below.. Al'l • noticcrn ohaU be adctres·s<;d' ao· •. followp:
~Ar..l,•ytoo/kb/arn1
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~~-04/0Boh'l--~~==~==:~=c:=====.====:==::====~~:::-==;:="c==='== 7a Attachment 6
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Documents provided by Data Tree LLC v,a ,rs proprietary 11nag1ng an~ delivery system Copyright 2003, All rights reserved '. I I I ' • . ' I
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If to Weot Coast:
. . . . I . , . I
City 1o( CL"yton
P . o; ,aox. 2 6 o
Cli,yton, CA 9451'/
'J\TTN: C.i.t:y M~na~y.!r
, w~nt corrn,t Dev·elopment co.
1021 Port Chicugp Highw.:,y
, Concord,. Cl\ 91524
. ATTN: Albert IJ. sccno, .Jr.
17012
(c) Either p.;i,rty may, by notic1: given 0,.t"" uny
time, require oubf.le_gucnt notice1_1 i:o· be 9i ve_n to uno'th(;;r:- pnr_uotl or 'cnt.ity, ~li.r;'lth~r _u pro:tY 'o:r. a,o of::(:lcCx- of' rcpre:-:ientativc ,of i, purty, or "to .n different add~~na, or both. Noticcn given·before a.ct:.Ual i"t.~ccipt: of not;.ice 0.(- cha.!1ge, nhnll not l'm lnv,::i..llcl~tcd by ,the: ch~ngc.

3. J. )~i'.llh1'!l._t._o_Oevclop. • Subject to. the tr.,rmu of tn:la Agreement, including the Rener_v.a.ti,ona· '·of • Authority, Weat;. ··c~ruit -. ·-·-nhall huvc a vcoted right· to develop the l'roperty in uccordancc • with and to the, extent of the Ex1oting Gen.,r11l Plan, the Murali Creek Road· Specific .P1un and .. all. applicable L,md Use Regulations '
----;-and Pevel6pment. Approv,;.-ln • ;,nd the· provi:,ionn·-:,et f;ort-h-in-t-h.i.-:,•------- purugr<>ph ·' 3.1 .for the· development of' five. (5) a.ingle-fumily reoidentiul loto ·and orie,-(1). parcel for dr<>_irwgc, detention on the .l?roperty .. Pev~lopment of -the Property sh.:,U be ,JUbject to 'all S~b~cqilent. • DevelOpmcnt Approyala, suboequent. L{.1,nd Uae ·Regulal:ionn a.nd .subfJequent Development_ Exact.,ionn . required by the Clty n.nd t;.hio Agreement ·:provided ouch st.l.bocquent oC:vr~lo,Prncnt Apf)rovQ'lfJ, ,Suboequent ·L~~d Uoe· RegV.lat.:lona f:\nd sUJ?nCqucpt; oa'Velopmcri,t Bxact·ionn do •not conf;l.ict 'with the J,:ldnting General· l'·lan, the Marsh Creek Roud. Specific !'lan and Went •• Coasi: 'n . qbili_ty '1:0 develop the Proper'ty thereunder. ·, The • City· ugt·eeo to process in • good, J;ulth the bnlu,,cc of: . approvuls needed to clcvolop .the Property ·:1.n uccordance wit:h· this ·Agreement. '.once· apj:,poved, u11· . subsequent Development 'Approvals ,shall be deemed .. part . of . the Pevelopment Approvals· and subj cct: • to the .vested· rights set forth herein. Except ua .. ot)lcrwiae prov.:ldcd . in • thin Agreement, ·the· pe:):m;l,tt:ed U.fl(.!:J of _th~ Propc:c:ty, '.the de:nsi_ty __ ·al)ct_·intenoity of: _ut.ie, t:he. muxi'mum height:. a.nd 'size of p,:oponecl b,dldingo, and p,:9~i::iionn'' for ·reservation und dcd:lc.a'tion of land for, public' purposes shall • be tllosc oat, f;ori:h in the Subsequent .Developm~nt 'Approvals.·· This • '
. ' . . ' ' . ' ' . ~ . -----.Agre emmrr-cnrtc-J;mr-we·m:-coa·st-to-dcv.elop-t. t,e Pt op~ rey-pucr:,ua n 1;-t;.,.,._ ______ _ ,. . ~ ' . • 9 -- ___ , .... "••-·•-•-'•-·
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7a Attachment 6
Documents provided by D.,taTree, LLC v,a ,rs prop"etlry 11na,gIng and delIv~ry system Copyright 2003, All rights reserved ,/
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, , :17012
tirn l'lxisti.ng General P:\ern and' t~c Mari,h • Creek Roo.d Speo,ific Plan on th~ followi.ng term" and conditions:

WES'!' COA.'JT ,
.(i) Went Coaat agreeB to dedico.tc thnt portion of it". property aa identified, in the June·2a, l995 Marah Cre"k Ro•~d Specific l'J."n for the right of w"y for Oak Creek Canyon Drive to the City o~ Cl"yton or the adj1>cent
; property owner upon. the earlier of ej.tber: ( l) the recordation of toe fJ.n,._1· "ubdivinion mup for .th<!
Property, or (,2) upon the requeat of the City if.
necessary for •the develop"!cnt of the udjaccnt: 11,Heartl~nd.11 property. 'Hi.

Wost Coaot;:. ·_agreea to dedicat;..e. that· Port:i.on of the We1:1t·~· Co.ast, property that. ii, identified "~ the' loca,tion for ,the atorm 'water detenti'on area irt the Marklh Creek Road Specific' Plan to the City or. adjucent .property o.wner upon the e<1rlier. of eith-cr: (J.) th." recorda.tion of the finul subdivision map for the Property or (2) upon the
request of the City if ·nccesn,.ry for the development' .of the .adj ;>,cell€ "!l~f.lrtli,nc)" prop_erty. •
Weut: _ Cop,st a_9xeea _to ~clfJdicntc .th.v.t pox-t.ion of the West Coaiit: • Property ·ad},cen~ to Mar'11>-Crcek--noact.-(FroperM,--~~--- frontagc) i,nd the necessary eaoement' for utility lineo to the, City pursuant to the Muroh. Creek Roo.d Specific:

Plan· upon ·the earlier of efther: ( 1) the r<acordation of the firial subdivi.,ion m,.p· for the· l?rope-rty· or (2) .upon • th',;, . request: ·of the'· City if necet,eo.ry for , the development' of the adjacent "llea.rCland" property.
iv;' Wost ·coas~•a obli,gatipns under. Sec;tion 3.1 • (i), . (ii) • and. (iii) to- dedicate upon. t.he .request of the _city_ tire contingent. upon· City· pro'viding West Coiwt writteri
-o.ssurn.nce that the .~pprovect. improvement:. plan~ for the • 1i.J-Je~rtland 11 •.. Property . show ·water, sani t'acy sewel:' and utility stubouts to• the propoued: re~ici.entiai' lots . ·on • the West Coast: Property and such•.improvernents ht,ve been bonded for 'by Heartland .. , ,Such utility st.uba shall • -- .-include ga.a; -e~ect~ic, ---t:cleph.on_e, .. a·nd __ ca.ble .... t.ele_v_is•:i,_o__n _______ ... serviCe ~ •~. •
A-~i~yton/kb/amA 10

0.4/0B/97
7a Attachment 6
• r
Docut~ents provided by 0ata;rree LLC via 1t1 pro~rrary 11na_g1ng and delivery systrm Copyright 2003, All ng~ts rese,ved , I \ , , ' , , : , • ' \ \ •
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( ··17012
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v. l'lo\:withstnnding the fo,:e51oing, "t ,the Ci.ty• a ,:equeat , 1 Wf!nt· Coo.at nh.ull d(!dica.te: the px-op~rty c;loocJ::'.ib~:d in Sect ion. 3 .1 (iii~ a.bovc ·in c6.noid~ration of the City conntructing ,- Ma.rah C;r:eek Ro~d ir~proVemcne projc:Ct: which fncluden imp~ovCment.n t.O t,he:
ffest -Coaat property trontage .. Su<;h <\edication nh,,J_J: h<l made, ".'itn the undcratnnding that the City wi:l.l cona~ruct the Ma,:an Creek -Road .. !mp,:ovein-enta along the Wost Coant f,:ontagc "t: no cost _ to west cOaQt N:ld. wi~h no :CC:quirement for _futuJ:"e rcimbu·x-aement to tile City by Went _Coaat for ouch :lmprovcmentu. -
, 3. 2 1"hr, (lesign of l'larsh Creek· Ro1>cl along the Wcat Co<0st f,:ontAge, if• undertaken by the City, •shall include the curb returns (o,: the futun, 0ak· Cr<rnk c,.,;yon Dx-ivc which shall 0be coordinated with We"t Coast·•" civil en_ginee,: ,rn~ ,nh,,ll b" submitted to Went count f.or review and comment pdor to the nta,:t of conotrt..ict:lon.
~. 3. 3 Effect of ·Agre·_cmrnt on General·. Pl au. The City 'arid Wellt_ Coudt. i!Cknowledge ·th"t t_he f"""ibi_l.lty ,;f -the d,welopment of the: l?;operty uncl t-he value,..of the_ i'roJ?;,rty io cleJ?<;nclent in J?",t upon the City penqJ.tting the develoJ?_ment, of ~he l?roperty in - accordance .w:lth tho ll;x:iot:l.ng <;:eneral • Pl.an <1110 the· .M<1rah Creek Road. Specifi.c Plan. Therefore, the· City i:ihall not amend the £;x:iat:l.ng. General l'lan_ or Marsh Creek Road Specific J.>lan in any '""nner which -would m<1l:erially ,and, -E1dveraely iinpacl:: --Weal: Coast I ----c,evelopmeriL.----.:i1cUO~t:he-'--Prope;rt:y-aa--protlded·-:lcn-t-h4.-a-J\9reemenc-.---'--~--~- , ' '

3. 4.. • chana'eB and Amendments. . ulllC:t;Jo othcrwia·e' .required by _law __ or aa determine<\ in the C:i.ty• S reason,,ble d:ls_cret:l.011, " _ change in PcvcloJ?ment AJ?J?rovals_ \'.¢anted_ for t:he __ l?roperty ·nhall be de,-med. "minor,~ shall ·not -require a public he,,ring, - and not require an _amendment, to this l\9,:eement, ·,rnd • sha:11 l::>e , made 'ad111inistratively- by, _the - C:lty - at the rcqueot of Weat Coast 'prov~ded such change.doeo not::
: (a) -Al.ter • the permitted ,uee·~. of· the rel.evant • P:t:'OJ?C,J:.t.y-~5-c,.-;w~bl~; oi,
(b) ' Increas_c • the 'd,eno:l.ty or ~nteno:i.ty; of. use of _ the. releva:nt. l?roperty ao _a whole; or,
-- --- - --- 0(c). ,;rncre"s~ 'the ~max~mum _ height ___ and, r,ize of pe:t"mitt~d\bU.il~ings; or,
- ' .~cl•yt;on/M,/•~i :n
09/29/97
7a Attachment 6
d~dication
, Documents provided by Dat,sTree LLC v,a ,rs pr~pnetlry "\aging and delivery system Copyngh_t 200~,•AII rights reserved . . . I . . '\ . \ •.• •.· . .I I I
. 1'.7h:i.z
(d)° D~let.e a. requirerne·nt f.Or. the reservation ar
of land for public • purppn.,o within thi, r'lleva.nt
Property no' A ~ho1~; .or,
(el Conotitute a Piojcct purouant • to Section
21000 ct oeq; of the Publi~ .Reoourccn Code.

1.....5.. City o.gr~en to unc ito bept effort,:Q. tO cooperate with W~at Count in proc6aoi0.g the unn,~:x:at.:1.on requ~t~ta Pnd agrc.:ern .. to coopcr.:J.te ~nd \HJ<) .,itn .be/7.t' Cfforto _ to- ex:pedi~1oUuly· procemJ Applicationo for all nece,wa.ry Pevclopment J\pprova.lo neceaaary to imp).ement the:dcvelopment of.the Property .
.1...Ji.. Reservat:iona· ·of-'-Aut-hor:f.tx. •
~ t,im1tatiooe RcnefYat·ibne and Exc:eptiono. The
. deval,__£Pmen·t of the p·roJ?erty "1hall be 1Jovcrned by the ordinanceci, policieo-;-"feea_,,nd reguJ.ationo in e:t;fect at the time that Weo,t Coa..st'.S a.ppl.1.clo\t;i,on• 'co:r: £\ v~'atirig' t.c;:nt.at:.;1.':'c. _,.µubdiVinion map iD deiemC'tl Complete l?ro.vi"ded such ~rdi'nances, pol'iciea, ,feeo,. o.ntl • 'regulations do not conflict with the ~xiat:l.ng General Plan. and the Mcu:sh Cl:C'-'X:' Rd.ad· Specific_ l'lan Ol:" West ,Coaot'o 1>bility to ctevelop the Prop;;,:ty . pur,:1uant to Section'' 3, l ; above.

N,;,twithotrmding any other proviciion of 'thin Agreement, t):lc J;ollowing -Suboequent L{l.nd Uo~ • Regul«tiono, und no otheia,,• ma.y apply to ~h•e development oj: the Property:.
(al J\p]?liC!J,1:ion ,and }?roceaoing fees t\lld.· cnargca. rcun.onably impoaed by . City tb cover the ·reasonuble catimated actuu1 coo to to the City ·of processing ;,pplicl>tiona for·.

DeVelopment ApprOVL\l°~· or ·'for. mon:1.to'ring, • c:;o~pliAnce with ,a_ny Development Approvala' .granted or iasued provided that Ruch· fees llnd ~hargeR are apJ?lied un:i.formJ.r or. on ,m ""e" of benefit basis. t:d devolopmcnt :ln the .City. ' . ' ' '
(bl Procedural regulations rel1>ting to . hearing
bodies., petitions, apJ?Ucations, not£ces;, Tfodings,, recordn, hea"ringB,, re,1?orta., . ."recomm~ndo.tionO,.· appealo • and any other mahte,:
of procedure, • • • • ' • • • . '' . ',
(cl Regulations a_nd p~licies· - go~er1fang •
construction· otSndf.\.rds,, e:x:t:enSibnQ . o~-- t:i,mC and SpecifiCat:lona including; without. Hm;ltation, the C:l.ty; s auildJ.ng Code, Plumbing --:cacie:;~Mcchanical -Code, El"ectrica.l" -Code;· - !'ire - Code~ and • Grading, Code.

F_RAMg: 0000477=5
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7a Attachment 6
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i I
Documents provided by Dat,Tree LLC v,a ,rs propnetl'll 11nag1n9 and delivery system Copyright 2003, All ngh.ts reserved • I\ • \ • / \.
-----,., ---~-~===---''"""=-'---'''-'-~~-c.===-o~,_,,,,._,...__,_-:C.....,.---\_' • __ ' " ·/
I, ' •
{d) Development Ex:ci.ct~ono, dt,tvclopment f.{!ea,
a.aoeasment.o or other f::!Uch Ctia.rg~,1 leg?-lly a.nd prop"rly ch'o.rged by 't:h~ C_ity pravid,~ ouch. exaction_o, feeti i1.nd churgeo a;t;"~ a.ppl.ied -,-··--uniformly or on n.n EJ.r.~a.. of be.oef it bt.1,nio t:.o dt!:Vf;!lopment: in th(! City. I
(e) • • Regul,.tionfl which ""I' not· 'in conflict with the Exiot.ing General· Plan, the Mn.roh·Cret:!lt Ro<".d Spe61fic l:11;:i.n and. thici Agreement_; howeVer, any. Orcun~nce·, rcoolut.ion, :r:-cgUJ..i'.~tion, or 'me~nur_e whi~h i.13 e~1n.cted:, wbCthcr. _by t1,Ction C?f ttie _City_,· bY initia.ti Ve, roff!!;r;endum, or otherwiac., .. , which rclateo to t:hc · rat;:e, • tim:lng,4 or oeqw!Ocing· of the ·development. or. conntruction o( the -. _,Property., ahall_be ___ dcemed~t_o __ J":,_ti,_conil.lGlc_wJ,th • the ExJ.,,ting Gener,,l· Pl"n and oh,.11 therefore not be 'applicable to the ·development of the P,:ope,:ty. Without lim:1.tJ.ng ·the foregoing, any limitation _fl(foctlng timin)'J, of . t:hc . av<1iJ.flbJ.lity' of permit □, .. a,pprovn.l~, or othf!r c.nt:itlement:a relating to oubdJ.v.;i.oion"•mupo, building permit.a, utility conneC:tiono, or other • cnt:U:.lcment.:u.

Occesao.ry for the deveiopm~rit 'or the· .Proper.ty Ph;;J.li be .deerned to be in conflict with the· Existing ·oencr"l !'l;,n und eh"J,l t:h•>rcfore no·t -b_e applic?bJ.c to developm<>n,t:: of the l'roperty. . -·--·--

1...Ji.......2, Modification or ·suOoen'sion by State Or Pederal Lo'!(, !n ,the • event t.ha.t·· Sti\te • or Fcde:r:-/S\1: ia.wr:1 or x-egu,l.a.tiona, cno.cted•. c,ftcr the Ef frocti vc - P<1te• of thin .l\greemcid: ,. prevent: or pJ:<lcJ.uclc ·complla.nce .With one Or more •of·. thC provioiona jof. t:h.io ·1\greemeht., .. such provisions of thia Agreement· ah"ll be mbdified -or :.1uopenclcd' ,i",, m"y be ,m,ccso<1ry __ t.o_ .comply: with Buch State <;>r, Fede.:i:-al 'lawn ,or rcgulationn_, • ·provided,· IJ,owever, that· t.hifJ Agx-ee·mcflt ohall.- re~ain in ·ru11 force ·D.nd .fJffect to th(! citent _. :i.t; lo not . .lnconoiateµ.t . with· ,,rnch l"wo o·r • regula.t:lono and to the· extent ·ouch. Lw,, or ,:cgulations do n_ot re,ndcr such remaining provisions impractlca1 to enfo:rc.e·. •! ~~

1...Ji:......3, Intent. The pri.rt.i'es a.ckn6wledge .' o.nd agree .tha.t tht! City' is rcatrict'ect _in ).to uuthority to limit its poHce power .by coritra.ct_• and_· that the foresOing- iimitat,iono·,., reservatiOJ?,.O and exception" u're intended to reDerve to the City ull of its police powe,:. which cannot be. BO limit<::d. - This Agreement - shall be conotrucd, ·contra:i;-y. to i't:.o atated tcrmo· ·1f ncc·cnoa.ry, .- to :t:eOervc· to the City i>J.l such pow~,: find author:l.ty, which can,:,ot be. restricte·d by contract. • • •
•-Ch.yt:"on/kb/at'li
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7a Attachment 6
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·,1...1 Reoulation ,GY. Othftr Public A1;,wncipa, I:t' io. <1clmowleclge:d by the p"rtiee tha.t other publi,c 'agencie" not within the control of tho ·city pos11eao authority to regul£1te ""Peet;" of the dcrve,lopment of the Property oepar~tely., from.' or jointly with the City "nd thio Agri,ement ,:Ioea not limit the, uuthority of ouch oth,ar ,publii:: agr.ncien· actir1g ueparut.,ly from oi· jointl.y with the City. 1'hc City Agrcell to cooperate with mid uoe its rcaaonablr,, el:fortn in dealing ~1th agcncieo which may be· neceapary for. the dcv~lopmcnt o.f PropertY,. in accordance ~with thio Agreement.. i...Jl Tentative T:i::act Map· Ext_enoian. .'l'he tr,';c-mo of f\nY,. _tcl1,tcit:ivc. oubdiviaion or tentat:iv'e:_ PB.reel map here.:\fter .approved. ,in connection with tl,e development: of the Property pursuant to thi11 Agreement, shuli be the later of 'the term of th~ m,,p., or: the -----_-t-erm 'ofthTo 'Agreement' a,s aet·: f6x-th herci.n or un ·subncqu,:ntJ.y extended. • _ .,,,.,,
.J..,....9. Yeat ing Tent:at:ive Milos., •• • If, any tcntati ve'. or· .tinaf .oubdiViS"ion map,·, or ·-tentat.iv.e or fin_a.1 PArcel.' .map,· heJ:'ct:.o.t::oie or ·heieufter ,.,_ppr:oved · in connection with development ot' the· cPr:operty, is" ~eating map .under Subdivision Map Act (Government Cod,, Section' 664l,O, ·ct aeq.) arid i.f thid A9reement io determined );,y a .Hns1l j uctgment ,to be .. i!'lvalid. o,; unenl'or:ccv.l:lle Inoofor: "" ;l.t grants; a. v~a·ted- ri.g_h~ t.o· ~evclo_p to 1·wc~_1t Coo.at, then· and to t'hut extent the rights· unct . protectlonn' uf forded to We.at Coil pt, under:
thu lawo, ctnct oi:;dinQ.nceo C\~plicable to vcut:l.ng . ·mup,, nh<>lt oup.;rDede the provisionB of this Agr:eemcnt. Except' ''" aet:. forth -----1:mmedracely-ubove-, -devclopment-of-t:he-Propert-y---,,ha-H--occur~only-.:..:.... aa provided in this Agreem1>nt,. .and the provisiono h, · thI,a , Agreement ohal.l be controlling over. ;,ny· ·conf Hctin,r provfoliin of law or Ordinance· cox:icerning ventin~ mapa . . - " • · .l.,..1_Q. • Fee· Cha] 1 eno~n. · The particn ·o.cknowl.ed9e that·, ' ·by exect,lt ing this Agreement, , West· Coust is not: wav.ing .itD right , t·,o challenge ·any .Coe" imposed' by the City on the 'Prc;,perty. • . ' ' '.::\ . REVIEW FOR COMF_LTANCE .'.

4. l Periodj c Review. ·'l'he City ohull r:evi'ew this
Agreement . anriually, , in .order to ascertain the good f<\i th compliUiJ,C<J );,y Weat Coast ;.,ith ·toe termo of tre Agreement. Such review shull be conducted in accor:dance ;with Section0 ?Ol.-706 of , Article 7 of the City. Peve).opment Agr:ccment Regulutic;,ns, 'ouring .·,,u_;n· re.vi,.,), Went Cousi: shnH be required, to demc;,notrate good faith ··,;10mpli<>11ce with the •terms of thio Agreement. :'l'he burden of, ., ••cl•yton/kb/~ml l4
04/06/97
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1,7,01,~
p:r:oof on thin i'1AUe .Ahull be on West Coaoc. If th" CiLy finda on t:lle ;b,:;;w,in o( uubdt;,.nti~l evidenCe that WeQt" Coaot h~n compliec;l in, 9ooct f~it_h __ \,~i th t.hr.. tcrmn qnd condit.:1.ona of thio l\qrecnu!nt, the rrJ~ie,)" .ohall be con,clud0ed·, .If the City, findtl and dr,to;r;:mineu on, the lJlJ.uiu ,of tJiubat(:l.ntial evidence tha.t Went co.,,nt hun not • complied in· good faith with . the terms· and candi'tiano • of· the Agrc,cment during th.,•·p6:r:iod under review, the City mc,y mod:Uy or·· t1~rm;lrn~tc th1~ /\gr.e.em11nt in _a,ccord.~nc~ with Se:ctiono 60l a..nd 602 .. of Articl"- • G a( the City 1 r:I' PeveiiopmCjnt· J\gt',,cment. Reguloe1.tionu.

Weat. Co~at may appeal auch' a detcrmi~ation to the Cir.'y Council J:n~- • . . . . I . . . • accordu.nce with tho Ci~Y-' o rulon for conoi.d.cr,"'\tion of a.ppea.1. 4 . 2 Proceed i ogo Upon Modi f i cat i on_t,u~ 'l'ermi nation~ If, upon ,, .. finding.under 'Section 4.l., the City deterrninea to 'proceed ---,-~-with· ·moditication·-or--i:ermination of thio Agreement, the, City ohal.l give written notice tc\ Wc~t ,Coaot of ito intention • to sit> ,,o: The .notice ·,ihall be ·given at least thirty (Jo) cr,lendur d<iyo pdor to the. ocheduled hearing .~nd a hull .. cont,~in:
(a) ,The time and· place of the hearing;
Jbl .A
propoAeA ta terminate
at.a.terncnt. a.a • t:o whcthc:t:' , ,_or
or to _modify ~he 1!-greimcnt; and,
,not
(c) Such 'other information 1>n ·1,:, • reanonably
neC:eooo.ry to inform West Cous~ of the na·turc of proceedil'!g. ,. • ·4.3 liea:ci~g on Mod.iffcation'o:r:·Term·loot·fon.', At the; U,me and place • set for • the • heuring on • mo,U.f.'ica:t;.on • C!r ·. termination, West Coa;.t ohc\ll be given un opportuniti' to. be heard.· , Weot ,Couat sh"ll be required to demonotrnte good ffdth. compliance with th<> terms und. Conditioni1 of. th;l.o Agreement.:.. The burden ,o.f.' ·proof on thJ.13 J.ssur, nhull, be. o~ West • CoasL . H .th~· City Councii finda; based· upon aubdtuntinl evidence thut 'west'. , Count hao· not, complied •,in good f~J.th witlt the l\greement, and. that the decision of the City council i.o in the bent intereot of the City, then ·p\.lrouant to autho'rity o.J; Oovernm<mt Code. Section 65865 .1 the· City- 6:iun,cil. may ext.end, terminate or modify this.- Agreement aD it .. applies to We11t Coast': and imfose, such conditiono· ,iu are reanonably.,nepessary to prot<ec:t the. intere.sts. of· the City subject:. to firAt . curing any outotirnding ,defaults .of the <;ity. properly noticed under. Sectipn .5 .• 3., . Toe' dec:l,iion of the City Council. 13hall. be final,. subject onl·y to j ud1cial review pursuant t:o Sect.ion 1094.S· of the. Code·of Civil Procedur'e. 'l. - ____ ,_ ~-c1Aytqn/kb/A~t 15
04/08/9',
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,DE.FAUt t -AND
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llEMEDTEfL
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5 :·1 • d..ica._ in Gcuer.JJ..l.. In gcn·e:r:~r. r.a.c~ or, the~ ·5.
17012
partier.~ hereto m"y puroue. any remedy at la.w or <~qu.ity .a.vui-~o..blc for the breACh of z;\l'AY pr.oviaion ot th;l,1 ·Agr.ecment. s. 7. $_\.iil~eoei on of • Aare,·m!"ot for .P<· rllult o_LQ_'tt..uu.r.. . The ; _ City rna.y. a~ripend WeHt • CoQu,t 1 ·righta uncl~r ·th:la -Agret>;it)~nt for. any fQ..ilti;-_e of Went Cor,.at to. perform uny mi:.t.tcrii°'l duty or· o_blli::,<'-lt:.ion - of Went Coan,t under • t:hiB l\9reemen1: or t:o comply in good faith • with the termt1 of thia Agreemont (hf!reinattC;r; referr~d to . l:!\fl 11 dcfault"),; pi:-ovided, howicivcr, • tllf.~ City_ mr,.y Buspcnd t.hia Agreement puruuant' to t.hiQ _Section onl,y 11ftcr provi<H_ng writ.ten ·noUco - to.· WeBt Coast ot: the det:ault Bett:lng fortlr the Oi'ltUre of the det1;>ult: arid. the act.:lon<J, if :any, required by ,West Coast to take ouch .>cticma and cur·e such defaul,t w:lthin B,ixty (GO) dnyu - after the effective date of such not.,ice or, :ln _ the event, that , : - ouch default c,mnot. be ,cured within nuch oixty_ (6,0) d~y period_ ··put" can be cured' within 1/, longer time, h"" • f,dlcd to commencr, _the "ctiona nei::,wsary to cure Auch defpult within ,,uch o:lxty (60-) clay period and_ to diligently proceed tp complete -.,uch • "ct1on" . "ncl cure ouch &,fault, "

5.3 A<'rmination· of Agreement· ·for Default of Cit..Y.,.- Wcat Couot ·_max termihate thiB Agreement 'in· the evcn·t o·f a. def a.ult by the City in the p·erformunce of _a • material term· of t1\is - /\greem<.!nt • and· only 'ut:ter providing wr:ictten nqticu to the City of _ clefaul,t Betting forth the nature_ ,of the_ default ctnd. uhe actiono, 'if any, required by_ the City to take uuch actionu and cure ouch default _wi°thin aixty (60) d<>yll aftC,r thp eH•~c:tivu ,cJr,,tc, of f;'UCh notice· or, , in the event.· t:hat ouch .defl'J.ult cannbt .be cured within Buch a'ixty, (60) duy pciriod b1H: CC\n be .cu:rcd' whhin" J.ongcr ·time', ha.o fo.il.cd to cOrnmencfl. the' uct:.i6n·o necconury to ·-cure ouch. dcfa.ul·t within· ouch sixty (60) clay period and ,_to, diligently proceed t·o complete such· act·ionb And cu:t"e ouch default.

GJ THIRD PARTY LTTIGATTO«-
' . • • ' . '
6 .1 . ?.'hird Pil:rtv Id t ioat ion ·concet'ni og Aarcement·. West Co<>St shall, ·det:end, at _ito expe'nse, including at.torncyo' fees, •1;,·demni:fy, and hold he.rmJ,es,s the City, ito agcnt;o,- o:f:f:ice,; □,, • emplOyees and au,bcontl:'actors :or illdependcnt contracto:r.o from any cla:lm,- C\Ction- or proceeding against - the C:lty, '•j, ts agento, · officers,•, or employees to. utt.a,ck, set an.i,dc~ void., or anriul 'the approvnl,, enforcement o,:--- operation- _of-.,-this -/\grecment_i-- The--aity ---- ~ a.~d.-.yt0n/kb/~~~ 16
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nh/411 promptly riotHy Went Co,1,;t of any ouch cl.:dm, actio~ or ptOCf'ed{n'.g,. ;,,ml the City "ha,11 coop.,d,te in the def.,m,e. H th-, City within ·oixt:y (60). da,ya of b<,ing ·ao noU.{ied ot'•o.ny cl1'im,. act:lon or pr.oceect'in.g .f.ailn to r1ot;ify W~ut· Coa.a't~ any ouch c;l~im, a.ct.:lori or procc~d:t'ng, on i.f the Clty fi\flu ·to_ ~opf:lru.tt'l in the defenoe,. Weat coa,it, ohall 11ot therc,.ftcr l.m ;n>tJponoible. to defend, in,demnif.y, ·or. hol.d harmleao t.he • City. '!'he City '""Y in ·itn noJ.<i, diocr,;tion participate in the ue'fenm, of "nY ouch cluim, Action or._ p,:ocecding . .

6. 2 Iodemni ty. In ~cldit.iori to the provinion~J of '6 .1 above, Weot COllllt nhi>J.J. indemnify anct· hold. th,:, City, ito agentn, • officcra, ernplo)'ee1:-:1, aubcont:r.actoro und indep·endent. contractora free and' ha,:;mleda from a.ny Hability wh,.tsoc;,er, • baaed or - a~serted. upon any a.Ct. or . ominolon of Wt!Pt Coa.ot, • its • aqent.o, off icor,1, employccf.l, , oubco~t·rnctort] a.nd independent contra~tora, fqr property. d"m;,ge, bodily. injury,· ·or d<,'lth (Wc:,t . Com,t - employee,i. incluu1.:ul o.,:; any ot;lier .element of clam,,gc of: 11ny kinu. or , nil.t:ti.t:'<.~,· .:i-:eI"li.ting to or· in l,l,n'Y way coririected with or ·.o.rif1t!lg from West Coa.pt ·, a.cts. or om:i.ao:lons • r~J.a.tec,f to .tb£J deveJ.opment of the !'roperty, 'except cluima for ct:-mageo . ..i>rioin\! through the i,ctive ,negligence or willful miac:onduct of t.he City,_ We,it Coast ahi,11 defend,,· at ·ito exp"n"e, • including attorm:yf)' feea,. the CHy, ,H.o agent fl, a..gento, •• employceo, subc0ntruct6r:J a.nd independent.· "corifro.c.tOru in legO:l ,let.ion based upon uuch uJ.leged'' .ucts • or omiaoiono. '!'he _City , may,· in ito discretion· p'aitl~ip~te, in the dcferioe of O.!)-Y such l~g?'l, {l.Ctiol'!~ • •
G .1 ·Atto1;nevn Peen• and Contn. ·, .Should «ny action o·r judicinl • proceeding •be· brought by any_ party h~reto «gainat c,ny other , purty ·,hereto .to enfo'rc!' the J?rovisiono ot • thio .Agreement:
the prevniling purty . "halr be entitled to , recover from t.hc non-prevailing party (a) '.its reuaonublc attorney' Cl fec,s and costs.

6.5 thr·ough 6, 5,
·Agreement'. •
Survival .. ~ The
incJ.usi ve, a hall
. 7 .. MORTGAGEE· PROTECTtoN .•
'
pro".i,,'ions • of ttl:lo section 6. ~
nurvi'Vc the t:crmi.natipn sif. • thia
, 'l'l!C parties. hereto ·ag,ree · that t·h~.s Agreement ,ihalJ .not prevent or. l·i'mit west coast~: ill. any manne·r,· at -Wcot Const 1 s ool.e dia~retion, from enCumbcX'ing ·the Property -or ,'3-.nY port.ion thereof o, any private improvement thereon by any mortg.,ge, deed o{ tru"t or ·othe, oec:uri ty device • aecu:l'.'ing f inuncj,ng with re ope ct to the a.-d-yt.co/k.b/.,.rn.l, 17 "
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1.701.Z
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, P;i:-op~Fty. Th6 City acknowled,9uu t'ha.t th6 l~Ot~"r.,,. p:r.ovicUng HUch finB.ncing may require certain /\greemc.pt intc::rpr<.:tat.ionu ,3,nd modi-ficationo a.nd i.l.greea upon rcquicut, ·t.t"offi time· to t.ime, toimee:i:. w.:i,.th w(~tlt Coaat:· and repr~Sent1,1.ti'ves: of such lendeJ:'f,l. t.o ne9otia.t~ .i.n ,good f~it:.h ~ny "uch ·, requewt fo;r: iriterpret:~~t;lon or rno<.IHlcution. 'rli•a City • will uot unrc,won'-lbly ·withholcl it:n concu.~nt. to uny ouch requested intcr,Prctation or mod:l.Cico.tign prov:lctCd • nuC:h interprctAtion or mou'i'fica.tiori in cono_iotcnt w;i_th the i?t4nt· a.n.d p\lrpon~u o( th.lo _Agreement.
, 0. · MISCFt,LANEOUS PROV:ISIONS.

B. 1 Recordilt: ion· o:t;;. Aareement· .
tunCndmcn·t or Cuncello.tion t:.l~ercof uhu11
county Recorder· by the qlerk of the Clty
. cxe_cut:ion of this Agrce_ment.

Th:lu Agreement and any •-
'"' cccorclcd, .with t:he
within ten d~ys after
O ~ 2 ent 1· re: ·Agt'ee_ment. Thio • Ag:teem~n .. t aeta for_t.h .and cont,lim, the ent:lre uncleriit'-lncling at;>c.l '-lg,,,emcnt.. of the parties;· und there .a;z:-e, no o+-~;l oi w;z:-it.t:cn rcpreoerituti.Onp, 'utidcr,;ta,nd;lngo or ,,1ncill~ry ·covenantll, -uncte,:tak:lngo or i:19reemcnt'ci which arc· not. contaJ.ncct or. e:x:p,:-cissly ,\iferrect t.a • herein, No tcnt:lmony or • 'evidence .of nny • sUch :repreae:ntati'ona, underata.ndingo or cOveno.nt:.o shall be. "dmim,ible in <1ny proceeding 6r - ,my kind or nature to ,1nt..erpret or ,Ucter.m:i.ne t:.tlc_ t.crms or conditiona ·of. t'hia Agre.effient_ . . 0, 3 Sf'Yerflbilit·y.. If any_ tCrm, ~ov:lnion_, covenant o.r condit;ion_o of- th:lo Agreement .shall. be' dctermin•od fovaIIc1,· .. ·vo:l<.I or uiienforceo.ble I the remO.ind,f!r of t:h:l'n • Agreement shUi:t ~Ot be affected thereby" to 'the extent ouch l:'emuin:lng provisiono a,:c, ,not _ rende_red :1.mpract:ical to per7;oxm' t<\king into cono:lclcration. the pu'rpooeo of th:ls Agreement .. •.

B .'4 Interpretation and Gover01nci I,fJ.'t;{. Thin Agreement' aryd any _ d/apute aris:lng herc,undex-, , shall be gove,:ned and interpreted in accordance w:lt:h th.;· laws· of, the State of • California. , This Agreement'' sh'-lll be construed as • a whole. '-lccorcling 'to J. ts f'-lir language and c_ommon meani.ng: to ach:leve the object::lves _a_n<.I purposes of the p'-1:r_t:ies· hereto, ond the rule of const:ru¢,tion t:_o ·-the ; effect :that amb:lgu:lties are to be ,:esc;,1 ved ag'-linst t:tie dr'-lft::lng )?a,ty. shall not: be employed in :lnterpreting t:his Agreement, all partfes ha'!:lng been- reprcnented- by counsel in ---~-i::n£:ncgot::lutioti i;lrid- p:repal:'at:Lon hereof, , ' • I ,. i..-c:l•yt:on/k.b/lllnl. 18
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, 8.5 fle'.ction Ueadinua. All. aection headi11;1 □ <>nd ·tJubhu..;1.d..ingtJ 1 ,;..re inaert.ed • for 1cOnvenlonCe only and ohul~ not · o.t.e~ct any c,onnt:ruction o;r: /ntcrp·.r-ctat-io_n o·f thiu Ag:r;eemt"!'nt. a .. 6 Si ngu'J ar and p'J ura·J . Ao uoed herein, the 1Jiri.9ul.:~r . of any word inc:ludeo the plural . . . . ~.

8. 7 Qllli~illl.Jl.un...J'l;l..t:.11_,i,b.e L;uul. I 1 , ·ut ,,ny ·Um" .d,uring the. tex-m of this.,_Agreement, an ownernhlp 1ntr:'.'r~nt in the _Property is trun,it:erred to ,mother entity, (i) -~ny obl lg,~tion unclc:t" thi,.,, Agr~eineni: _whJ.ch ,;('olntco to _or <l,;!p~:hdr~ on • the i __ re.:, o( land owned 'iih<>11 be apportioned to • the und,,rlying own_.,r1Jhip intc:be_at (by ar(::a. of land) as though t:hC m1ccflf~uor o\•m~r h 0 1'd b~e11
un original party. to:. thi" A9recment 1'nd (ii) "U oblJ.gatJona which arc .not subje'ct to llpportJ.onment ahall adtUtion~lly becomi, • o.n ·obligation· ~of such successor owner. Notwithnt1'nding_ the fore.going,. no . owner_ of a single lot_ which )Hw been Unally .oubdivid.ed Un.ct sold to aqch Owner "D,µ ,a memlmr ·of,, the gen,~ro.l publJ.c or otherw'ise as an: ultimate user ah_1'11 .have uny oblig£1tion under thio Agr':.ement. • •·
e ."6 !rime of BoeeoCe. ·r:tlllo. • :lu of th<.! ,~1:1nence in t.11c performance, of the proviaions of. this J,grc_erttcnt ,.u,. to whJ.cih Unic ia• an element. ..
.'0,9, )'.leiver. Failure: by, a purty to inoiot 1.1pon the of:rict performance .. of any ol;· the proviniono of. this Agreement by the, othcr. party, or the failure by· a -party to exerc:_i~c itQ right~ up,;,n th<' defuuit of. tho other· party, oh1'11 not ·constitute n Wt;'i ve.r .of!. au.ch pUrty I o ":t"ight: to inaiot o:r d~innntl ut:rlt.:t compliance by the other party with the tcrmn of thJ.« Agreement 'thereafter. ~
"{L10.No Third,·'Pa:Cty Bcnefic:lprii:s. Thi's Agreement :lo made and entered into tor the aole prot.ection nnd benefit of th" pi:\rtiea and their, successors and assigns', No othex- person sh,.11 nave a·ny right_. t.o action based • upon. uny provision of· thnl-· Agreement.. '
,.'e.11 Fo.rcci Mo1611re. , Ncithe'l;' p.{l.rt.y· ah~~l 'be de·erncd to be in default. where faJ.lure·or deilay in performance ot r,ny of .it.a obligations und<;ix- . ,,thia • Agreement is cuused by flood □,. _ carthquake_p, otho:i;- A.cits of GO~,·· fl~cs, wars, ribts Or. oimila'r· hos,til:it:J.os., si:::dkeia and otner labtir • difficult.ieo beyond the • •.•Cl•wton/kb/and,
04/08/97
:FRAME• 00004762 __
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Documen~s provided by DataTr~e LLC v,a ,rs proRnetlry _11;ng1ng a~? delivery system Copyright 2001 All rights reserved i
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'1.7012
party' a cont,rol, ( including the party' a '.,mployment forces) , 90Vcrnrn~r1t r<~gulationa/ court actiona (puch a.fl n,~t.:r.qining or.dern · or inju.nction[-1), or oth"r c~\.l.fHW beyond lhr, p,~rty •·p control. :rf uny si'tc::h event a ~hun oCcur, t.he term ot thio Agreement fl.nd. the t;im<, for' p<srform<1nce by eit.he,:- po.rty of' ,,.ny of- ito obligation :hereunder m4y ,be exten~ed bY .. tttc: .~ritten ag~cc~ent _of the purtie.a for th~ period of time ~hc.-t fJUCh • cvcutu· prevented 01.1ch . performanc,_,, prov:l.cl.ed th4.t the t(!:tm -of thiu Agreement. sho.11 not 0(~ ~xtendetl .und~r _any ci,:curnntanceu rOr ,morr=. th~n five {5) yei::\rn. , a .12 Mutual Covenants. '.l'he covcn~ntu con.t;,i.ined he:r::-c:l,n are mutuo.'l covenanta and alao. constitute conctit.:.:loflo to the conCuJ:'rent ~ or auba<!quent performanc~ by the party Penefited thereby, , of the covenant" to,. be perfoi:m,,d theret,nder by • rmch bene(;l,te<\ purty,
. e .13 Succeesora :t n Interest. The 'bUrdenS,,.. or thJ.e:1· ~ Agreemen,t shall be,, binding upon, and the benefits of t,hi" _Agreement Pho.1.1 i.nure to, all ouccesuo:t't:l in< int~reot: to t_he· purties to' thia , Agree;.,ent. All proviaions of t:hifl J\greetnent:
shall );,,;' enforceable as equi,t:able r,e,:;vitudea and constitute covenants .running. with the' land. Each, .covehnnt 'to do or, r.efro.in from, doing" some ac,t herellpder,,with regar<\ to .~evcl.optnent 'oi: the.

J?rope·rty: (i) ia for the benefit--of- rind. io. a burd<,n upon <,very , portion of: ouch Property; (ii) runo with, the l?ropert:y "ncl.' c"ch , portion "thereo( 1 ,ui'd (iV), i~ binding upon each party und imch :mc:cesso,:- , in intereat during ownerohip of ouch P,i:-opcrty or uny ,portion thereof,· , , •
e .;J..4_ Couoternat:te; Thif.l Ag.recmei1t muy· be executed by • tl1e part-ieo .in counterparts, which count:.el;"pnrto ·, nhull bG. construed together,· imd h,we the, Sl\nle effect "" , if· al.l. of' th~, pe1rties h'>ct ei<ec:uted 'the same in,;itrurncnt. '
' , , . a.1.s Jur:i"nd:ict1on ·and ,Venue: ,Any a.ctio.n· a~ law or .in equity nriaing under thia,Jlgreement: or brought by n party hereto for the purpooe of enforcing, construing or dote,:-mining, the', valicUt.y of an:;, prov;l,s;l,on of th;l,s Ag'reeinc'nt ,sha),J.', he, HJ.ad, und ':
tr:led, in the Super:lo:t Court: of the,County of Cont:r:u Cahta, St'lte at, CaHfornfo; and the parties hereto woive all p:r.'ovisiona '.of' '1aw , providing 'for' the fil.ing,, rem,;val or chnnge, of; v,;:Oue ta «ny dth<:;;;, court:..
~•Cl~y~o~/kb/amt
,04/08/97
20 7a Attachment 6
..'.

8.16 Project ua Priya~e t2odertnkjoq. It io
i.ipeCi.f:ic~lly' unde:rat.ood tJ.Od agreed by' an,d between the· pa;r;-tieo h~x-eto that tthc devf!lOptllent o[ t;hc Px-ope,:-ty La • a. fl:z:-ivo.t:e 'undertaki1ng, tha.t ii.either .. paxty is o.ctlng au the .,a.gent O't:. th(~ other i.n nny T.enpoct he:r:eunder, and th~t each , p<J.rty io ao ind<0[>endent contracting entity wil;h respect to the term,;, coven~ntn t.\Od conditiono • contained in .. thia ·1\greemeot. No pa:t'tnc:rahip, jo~nt ·ve~tu,:-e or othei- a~aocL:""tfon o·t any )t:lnct ·ia fqrmcd by thio• A.9r.eemcnt. The o_nJ..y rel"tionohip betw'een the .Cit:y and Wcot. Coaot lo that of ,.· gov,irnrnent entity ~reguluting the development ·of. pr:l VJJ.te px-ope:d:.y.
8 .17 further A.ctiooe alld Instruments. Each~ o,f the
• parties shall cooperate with and p,ovide reAnoo<1ble a,rnintunce 'to the other to thCeXtent cohte'mn.iated h<.!reunder • :l.n ·the po"rforrna.nCrx-·~ of all Obligations under thio • Agreement nnd . the 1ee1tin[acHon 6r the conditionn of: thin Agreement; Upon .tlle . rcqu<:ot 01: ,,ithci:
party at ,my t·im", the ot>hcx· p;.,rty ohal'l promptl.y execute, with· Aclmow1edgment of affidavit if. re<1sonably' required; and f.Uc or ·record'", such;. X'cqu:l::t'ect ';lnatx-tim~nt.s and w~J.tlngu a.nd t;.a.Jt.e • uny . ·actiono • a.a may be reasonAbly neccsoary under the tcrmo. of thin Ag,eement to carry out the . ;lntcnt and • to fulUll th<> provJ.oiona ·a.e· thia . Agreement or to evide:nCe o:i::' cbnf.Jummate ,the tro..nsV:ct.:l.onA coi,templ.uted by thin. 1'greement.
'.B ·~ 18 Emi oeOt: oo'm;)j o. ~o provision of thlo. l\greemen_t ohal.l l:le construed to limit ·or rest,'.ict the exercioe by ·the -City ol: its 'power of ~mincnt ·domain;
'
' • • · a .'19.· Ant bc;;ri t"y t:o • Exec;utf!. 'l'he pel:'oon. or pcroons .execut.ing this Agreement on behulf. ·of Wcat Coast W'\r,cirnt." unct represents that he/she .ha:s • the authority• to execute this Agr'<\ement an:. beh'alf 'af. • the corporation', partnership . or busincoa entity and wa:tranto and rep,:-esen,ts i:ti,,t he/she. has authority ta binct Wwat Co;_.flt tq the perEormancea of :ltn obligution·a hereunder ..

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,, , •• , Doc;uments prov,~~d by 0'1,taTree LLC v,a ,rs ~ropnetlry 11nag1ng and delivery.system Copyright 2003, All rights \"served t \ \ . - \ \, . . • . . ·, . \ • __ \ _____ "'-_, _1 ___ ·----~~-----·------·------------~ ,, • I ' .. 1 {
• CALIFORNIA AL"-PURPOSE ACKNOWLEQOME,tT
state of _._L=./r_-E=c,.:~ _ _,-_q:_ __
Counly of _&.a'_/.,02 &a:~ <=i:...:_
On _.Lo-.,_,.--:.. ?ae. before me, __ I •• • • !UIIL • ,.....,,.,llflt'.Of"otlll:llt.tU.•.t,,,,Hf'tJQt_'.' r.-..'1YMfflU(,~.• person;illy app<l~r'eq '---LZf!ccL: ,P,,,,_tfi;.[{.;,'a~. • ~onally known to me - OR - 0 proved to m~ on the basis of s~llsfs1ctory evidence • ' . to bo the porson(s) whose name(st@!aro.
subscribed to_ tho within instrument rrnd acISA L. COJIINELLEY COMt,1;'1052743
ttOTMY f'U'llJC • CAUfOANI-'
CONTfl.'I COST" couITTY - :'! Comm. -::r:-.....,, ,. , ... 1, knowledged to mo _t o/ he/they executed •
the s11mo In ts/ er/tho.Ir. authorized
capaclty(Jes), and that by~er/t,hoir
signature(s) on tho Instrument the pers9n(s),
or the. entity upon behalf of which lhe •
person(s) acted, executed the Instrument.. . . WITNESS my hand and official' seal . {_
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BION~l\lfff),OF t'Kl'rAAY
------------·OPTIONAL----------•
' • Tho!Jgh lho dat~ below. f.s not required by Jaw, II may prove valuable lo persQns relylnp on 1t:10 documeflt and could Prevent tmudulent r~~t1achmenl or lhts form. • 1 •
CAPACITI CLAIMED BY·SIG!{ER
Q l!;!PIVIDUAL
Lµ-'l;OAPORATE OFFICER.
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0 GUARDIAN/CONSERVATOR 0 ,OTHER:_· _________ _
SiGNER IS REfRESENTING; rw.11: or rc~oo ctmTY~r.s1'
, . -------- _,_

DESCRIPTION DFATTACHED DOCUMENT
-c------='-'·..::,_..,....._· ------ NUMBER OF PAGES

DATE OF DOCUMENT
. SIGNEA(S) OTHER THAN NAMED ABOVE
ou,a3 ~Tl()NM.~AflY f.SSOCIATK)N • 8Z)G f\omme1 !,ve., P.O.~ 7UM •~ Part.. CA si1ll»-11~ '
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\ I Cornms,,s oms,oeo o; """" CCC"' ,es omomsb,/ ""'0"0 r ,.,,,,~ s1s<s}" Co,>"O"' ,co, A" me~ \semS,, -•-,.------'--~-'------~----'---------~---"-----~i,-----'- ' I
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LEGN. DESCRIPTION
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All that renl property siti.m,ted h1 the· State of Callfornfo, County ol' Contra Cost.Ii an unJncorporate{area, described as follows:

That portion 'of Pared "B" ol' Pa.reel Map fll~d August i.'9, l962 in Book . JOZ or Pared flfaps, Pai:c 29, Contr<1 Costa Cqunty Rccorc\5, lyh1g . northerly of the nonhel'ly llne of Marsh Creek Roa.cl, ;1:; said Marsl1 • Creek Road is shown on si1id !nup.

EXCEPTING ·fr1EIU:FROM:
• Alt oil, gas,. cuslnghead gas; asphaltum and other hydroc~rbons 'ilnd • .111. chemic.ii g;is now or here.ifter Jou.nd, situated or located in ali or .iny • part of said lands ·1ying more th.in S00 fee( below the· su1:foce thereof, • together wHh the right to slant dJ.ill for and remove ull or. any of said oil, _gas, . casingbead gas; asphaJtl!m. i>.nd • oilier hydrocarbons '!nd cl/,emlcal ga,s .lying bel?W a depth pf m,ol'C tlian 500 feet. of the s1.1.-face of the lands described In this deed, incl1.1ding the right to g.-am leases for all or any of said p1.1rposes, bl.It wi\ho1.1t any rights whatsoever· .to ente1•· 1.1pori the s1.1rfa.c<\ of sai.d land or upon •\llY. pa.-l of said 1,1nd, within 500 feet of the surfa<;e· the.-eof, as resei:ved in the ·cteed from· Congregati<:•n _of' the Sons of the lnimaculate ttea.-t of Ma.ry of th<:
. Western Province, dated .December 27, 'l963, .-eco1iled December 3 l. 1963 .in llook4522, Pai~ 703, O,ffid;il Records.
(Being APN H9-070-008·6J
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Exhibit B
Letters

1. Rick Angrisani – August 28, 2020

2. Randy Hatch – August 30, 2020
7a Attachment 6
7a Attachment 6
7a Attachment 6
7a Attachment 6
7a Attachment 6
From: Doug Chen
To: Dana Ayers
Cc: David Fish; Doug Chen
Subject: RE: Oak Creek Canyon, Moita"s Appeal of Planning Commission Approval of the Extension of Development Plan Permit
Date: Wednesday, May 1, 2024 9:17:56 AM
Dana: Please let me know if you want me to add anything else. I did insert a word “letter” behind 3/8/2024 in the 3rd paragraph below. Also, Moita is asserting that the 3-yr statue of limitation under CCP 338 could apply, but our in-house counsel indicated to me that it would not. I can provide his explanation in my response, or just have him email the City Attorney directly.

Thanks,
Doug
Doug Chen, RCE, LS
ADSCO/Legacy Builders Inc
4021 Port Chicago Hwy
Concord CA 94520
Main 926-671-7711; Direct 925-602-7211; Cell 925-250-2658 From: Doug Chen <[email protected]>
Sent: Tuesday, April 30, 2024 5:11 PM
To: Dana Ayers <[email protected]>
Cc: David Fish <[email protected]>; Doug Chen <[email protected]> Subject: Oak Creek Canyon, Moita's Appeal of Planning Commission Approval of the Extension of Development Plan Permit
Dana: Sorry about my late response. I want to follow up with you on the 3/8/2024 letter from Vincent Moita, representing Clayton Estates LLC (“Moita”). Moita owns the adjacent property to the east of Oak Creek Canyon (“Project”), and is appealing the Planning Commission’s 2/27/2024 approval of extension of the Development Plan Permit (DP-01-19) for the Project.

The Project’s Environmental Review (ENV-02-16), General Plan Amendment (GPA02-18), Specific Plan Amendment (SPA-01-18), Tentative Subdivision Map (MAP-01- 16), Development Plan Permit (DP-01-19), and Tree Removal Permit (TRP-31-19) were approved by City Council on 6/29/2021. The Ordinance approving the Zoning Map Amendment (ZOA-01-19) was introduced on 6/29/2021 and adopted by City Council on 7/20/2021. After considering public comments and deliberating, City Council made the necessary findings and approved the Project.

Because Moita’s 3/8/2024 letter raises several objections to the City Council’s 2021 approval of the Project, it should be pointed out that only the current decision by Planning Commission to extend the Project’s Development Plan Permit is subject to appeal. The other approvals cannot now be appealed.
7a Attachment 7
Issues raised in Moita’s 3/8/2024 letter:

Project violates the Marsh Creek Road Specific Plan (MCRSP). (page 2 of the Moita letter).

Response: The City Council has already determined the Project to be consistent with MCRSP, among other requisite findings in approving the Project in 2021. The Planning Commission decision on 2/27/2024 is limited to the extension of the Development Plan Permit only and cannot re-open any previous 2021 approvals by City Council.

Inadequate detention basin sizing. (page 2 of the Moita letter).

Response: In approving the Project in 2021, the City Council already considered all public comments, including those raised by Moita, which comments included the sizing of the detention basin, width of the road, connection to the Moita property, sizing of utilities, etc. (pages 34-39 of the attached Addendum to Item 8b from the 6/29/2021 City Council meeting, printed from the City’s website). After consideration and deliberation, the City Council found the Project to be consistent with the MCRSP in approving the Project. Furthermore, the 1995 MCRSP predates the current stringent stormwater treatment requirements (e.g., C.3 provisions of the Municipal Regional Permit), which requirements go beyond simple detention and which Moita would be subject to.

City’s failure to comply with the State Housing Element Law. (page 3 of the Moita letter).

Response: I find Moita’s assertion to be incoherent. My understanding is that the City is currently cooperating with the Department of Housing and Community Development (HCD), and is close to having a Housing Element approved. Moita seems to want the City to annex its property but that is beyond the scope of the subject Appeal. Incidentally, the Moita project is not only outside the City boundary, but is mostly beyond the voter-approved Urban Limit Line. For the City to include the Moita property in its Housing Element inventory map would likely raise questions from HCD on the remote likelihood of development of the Moita property.

GPA-02-18 and SPA-01-18 have not been incorporated into the City of Clayton’s General Plan and Specific Plan in accordance with Gov. Code, Section 65359.

Response: Perhaps this is a misunderstanding by Moita of the amendment process, but the approval itself incorporates those amendments into the General Plan and Specific Plan. Moita is certainly free to submit an application to further amend the General Plan and Specific Plan.

Claim under Code of Civil Procedures 338. (page 4 of the Moita letter) 7a Attachment 7
Response: This claim, even if shown to be valid, is beyond the scope of the Appeal.

Please let me know if you have any questions. More than glad to get on a call or meet with you in person.

Thanks,
Doug
Doug Chen, RCE, LS
ADSCO/Legacy Builders Inc
4021 Port Chicago Hwy
Concord CA 94520
Main 926-671-7711; Direct 925-602-7211; Cell 925-250-2658 7a Attachment 7
City Council Agenda Item 8a Page 1 of 3 August 20, 2024 City Council Agenda Item 8a

STAFF REPORT
TO: Honorable Mayor and Councilmembers
FROM: Regina Rubier, Assistant City Manager
DATE: August 20, 2024
SUBJECT: Receive Presentation on the City of Clayton Strategic Plan, Implementation Action Plan

RECOMMENDATION
Receive an update from the City Manager’s Office on the City of Clayton Strategic Plan, Implementation Action Plan.
(The Budget and Audit Committee reviewed and recommend this item at their August 12, 2024, meeting; Item 6.).

BACKGROUND
In February 2024, the Clayton City Council unanimously approved five goals for the strategic plan and started setting strategies and priorities to guide the City’s work over the upcoming years (Attachment 1).

The plan outlines the City’s priority areas of focus aimed at supporting public safety, infrastructure, and accessibility; community parks and recreation division; economic development; balanced budget and landscape maintenance district.

The plan outlines the City Council’s core goals

1. Public Safety and Infrastructure: Enhance the provision of public safety resources, invest in technological solutions, and maintain, repair, and improve public facilities and infrastructure.
(Back to Agenda)
City Council Agenda Item 8a Page 2 of 3 August 20, 2024

2. Parks and Recreation Division: Evaluate the feasibility of expanding the usability of Clayton Community Park by adding lighting, upgrading fields, and enhancing related facilities. Additionally, explore options for recreational activities tailored to both youth and seniors.

3. Economic and Community Development: Promote effective use of existing amenities and resources to create future opportunities that enrich the community and promote a vibrant downtown business atmosphere.

4. Balanced Budget: Support fiscal health through long-term planning, cost control, heightened efficiency, increased revenue, and cost recovery.

5. Landscape Maintenance District: Prioritize funding for the Landscape Maintenance District (LMD) to develop a comprehensive maintenance and repair strategy, including detailed mapping and a timeline that identifies repair locations, completion schedules, and associated costs.

Staff presented the initial Implementation Measures at the August 12 Budget and Audit Committee and received feedback and direction from the committee members.

DISCUSSION
The City Council completed its first strategic planning meeting on February 6, 2024, creating nine (9) initial strategic goals. The City Council broke out into various Ad Hoc committees to work on the strategic objectives related to each strategic goal. On February 20, 2024, strategic planning meeting #2 was held and the City Council narrowed down the nine (9) strategic goals to the final five (5) and brought back the work completed on the strategic objectives.

To bridge the work of the City Council to establish Goals and Objectives back in February, Staff has identified Implementation Measures that align with the Council’s Goals to move the objectives forward between now and January of 2025. In January or 2025, Staff recommends reviewing the Goals, refreshing the objectives, and updating the Implementation Measures to align with the Resource Allocation Plan (the Budget).

City staff propose that the following Implementation Measures:

Goal 1 - Public Safety, Infrastructure and Accessibility • Develop a sidewalk repair pilot program.
• Climatec to complete installation of the HVAC system in the Clayton Community Library.
• Issue a Request for Proposal (RFP) for Landscape Maintenance services.

Goal 2 - Parks and Recreation Division
• Review and Develop a Special Events Permit process to include:
 City sponsored events;
 Co-sponsored events; and
 Community sponsored events.

City Council Agenda Item 8a Page 3 of 3 August 20, 2024  Review fees, insurance and other requirements for each of these three categories.
• Review and propose staffing needs to support Special Events.

Goal 3 - Economic Development
• No action, wait to review and discuss after the Council elections and the new City Manager is acclimated.

Goal 4 - Budget
• Present, review Quarterly Financial reports to verify that revenues and expenditures align with forecast.
• Evaluation of Front Desk staffing needs to support the organizational efficiencies. • Review, evaluate and manage existing contracts.
• Evaluate the option of outsourcing planning services or consider returning to a traditional model by recruiting and hiring a Planning Director, Code Enforcement Officer and Assistant Planner.

Goal 5 - Landscape and Maintenance District
• Review the 2024-25 adopted budget with the Trails and Landscape Committee (TLC).
• Along with the new City Manager and the two (2) Council member liaisons, meet with the TLC to review and affirm the stated charge as established by the City Council .
• Begin visioning process – determine the long term and short-term needs of the community for improved trails and landscape maintenance City-wide.

NEXT STEPS:

With Council concurrence, Staff will work on the proposed Implementation Measures between now and January 2025 and return to Council with updates, and with Actions items for Council’s review, discussion, and approval.

FISCAL IMPACT
Receiving this report of the Strategic Plan, Implementation Action Plan does not establish any financial obligations for the City. Current-year costs of the Strategic Plan Implementation Action Plan will be defined in a budget amendment proposed for Council adoption within the next several months. Future year costs will be included in future-year budgets.

CEQA IMPACT
None

ATTACHMENTS

1. Goals and Objectives List
1 Public Safety, Infrastructure, Accessibility
2 Community Parks & Recreation Division
3 Economic Development
4 Balanced Budget
5 Landscape Maintenance District
GOALS

CITY OF CLAYTON

STRATEGIC PLAN
8a Attachment 1
Goal: 1
Public Safety, Infrastructure, Accessibility
Strategy

1.A Develop a sidewalk repair
pilot program.

1.B Climatec to complete
installation of the HVAC system
in the Clayton Community
Library.

1.C Develop a city-wide
improved pedestrian
accessibility plan that includes
general pedestrian and
roadway safety
(striping/repaving/bicycle
lanes), safety around schools,
and ADA improvement.

1.D Create a comprehensive
Maintenance and Repair
strategy with mapping and a
timeline that identifies where
the work/repairs need to be
done and costs for completion.

1.E Conduct an assessment
study of the current irrigation
system at our 5 largest
parks/fields.

1.F Add fast electric charging
station in the corporation yard.

1.G Replace the 3 oldest
maintenance trucks and
replace them with 3 new Ford
F150 Lighting trucks for the
Maintenance Team.

1.H Post online quarterly
maintenance schedules with
high level maintenance
objectives listed for the
quarter: Fall Objectives, Winter
Objectives, Spring Objectives
and Summer Objectives.
8a Attachment 1
Goal: 2
Community Parks & Recreation
Strategy

2.A Review and Develop a
Special Events Permit process
to include 1.) City sponsored
events, 2.) co-sponsored
events and 3.) community
sponsored events. Review
fees, insurance and other
requirements for each of these
three categories

2.B Review and propose
staffing needs to support
Special Events.

2.C Determine feasibility of
expanding
usability of the Clayton
Community
Park by adding lighting,
improving
fields, and related facilities.

2.D Explore options and
locations for youth and/or
senior recreation.
8a Attachment 1
Goal: 3
Economic Development
Strategy

3.A Create a vibrant
downtown business
atmosphere that is compatible
with the size and needs that
our community will support.

3.B Create business and tax
revenue beyond just Clayton
residents.

3.C Commission an "Economic
Development Plan" to evaluate
support existing and create
new businesses. Include the
review of prior plans/studies
plan (as appropriate).

3.D Instite a conscious "City
Business Spotlight" though city
media (e.g., city website, city
manager newsletter) to
highlight new and existing
businesses.
8a Attachment 1
Goal: 4
Balanced Budget
Strategy

4.A Present, review Quarterly Financial
reports to verify that revenues and
expenditures align with forecast.

4.B Evaluation of Front Desk staffing
needs to support the organization
efficiencies.

4.C Review, evaluate and manage
existing contracts.

4.D Evaluate the option of outsourcing
planning services or consider returning to
a traditional model by recruiting and
hiring a Planning Director, Code
Enforecement Officer and Assistant
Planner.

4.E Create a balanced budget for this
year and future years.

4.F Create a comprehensive a long-term
fiscal plan and forecasting.
8a Attachment 1
Goal: 5
Landscape Maintenace District
Strategy

5.A Review the 2024-25 adopted
budget with the Trails and Landscape
Committee (TLC).

5.B Along with the new City Manager
and the two (2) Council member
liaisons, meet with the TLC to review
and affirm the stated charge as
established by the City Council .

5.C Bgin visioning process - determine
the long term and short-term needs of
the community for improved trails and
landscape maintenance City-wide.

5.D Prioritize funding of the Landscape
and Maintenance District (LMD).

5.E Create a comprehensive
Maintenance and Repair strategy with
mapping and a timeline that identifies
where the work/repairs need to be
done and costs for completion.
8a Attachment 1
City Council Agenda Item 8b Page 1 of 2 August 20, 2024 City Council Agenda Item 8b

STAFF REPORT
TO: Honorable Mayor and Councilmembers
FROM: Mala Subramanian, City Attorney
DATE: August 20, 2024
SUBJECT: Authorize the Mayor to Execute the City Manager Employment Agreement

RECOMMENDATION
Authorize the Mayor to execute the City Manager’s Employment Agreement.

BACKGROUND
The City Council has been in the process of looking for a new City Manager since the resignation of the City Manager. The City Council directed the City Attorney to prepare an employment agreement with Kris Lofthus for City Manager.

Kris Lofthus currently serves as Recreation, Parks and Marina Director for the City of Suisun and prior to that as the Deputy City Manager for the same City. He has over 28 years of professional experience in finance, capital projects, community engagement, staff development, negotiations, and facility management.

The City Manager’s Employment Agreement provides for a start date of September 16, 2024, a 3-year term, salary of $240,000 for the first year and the potential to increase to $250,000 the second year with a satisfactory review, a car allowance of $400 per month and a technology allowance. The City Manager’s Employment Agreement is attached here for your consideration.

FISCAL IMPACT
The City Manager salary was approved with the Fiscal Year 2024-25 General Fund Budget and staff salary schedule, approved June 4, 2024 (Resolution 29-2024). (Back to Agenda)
City Council Agenda Item 8b Page 2 of 2 August 20, 2024

CEQA IMPACT
None.

ATTACHMENTS

1. City Manager Employment Agreement
1 EMPLOYMENT AGREEMENT
THIS AGREEMENT is between the City of Clayton, a municipal corporation of the State of California (the “City”) and Kris Lofthus (“Employee”). It is made effective as of the first date of Employee’s employment with the City.

This Agreement is entered into on the basis of the following facts, among others:

A. The City desires to employ the qualified professional services of Employee as City Manager of the City of Clayton, as provided by the Clayton Municipal Code.

B. Employee desires to accept employment by the City as its City Manager.

C. The City Council and Employee desire to establish this employment relationship, subject to the terms and conditions set forth in this Agreement pertaining to compensation and benefits, performance evaluations, and related matters.

BASED UPON THE FOREGOING, THE CITY AND EMPLOYEE AGREE AS FOLLOWS:

1. Employee Appointed. The City appoints and employs Employee as City Manager, and Employee accepts the appointment and employment. Employee will commence work on September 16, 2024 (the “Effective Date”).

2. Duties of Employee. Employee shall perform the duties established for the City Manager by State law, the Clayton Municipal Code, the City Manager job description, the directions of the City Council, or as otherwise provided by law, ordinance, or regulation. (a) Full Energy and Skill. Employee shall faithfully, diligently, and to the best of Employee's abilities, perform all duties that may be required under this Agreement. Employee agrees that Employee has a duty of loyalty and a general fiduciary duty to the City. Employee shall devote the whole of Employee's working time, skill, experience, knowledge, ability, labor, energy, attention, and best effort exclusively to the City’s business and affairs.
8b Attachment 1
2 (b) No Conflict. Employee shall not engage in any employment, activity, consulting service, or other enterprise, for compensation or otherwise, which is actually or potentially in conflict with, inimical to, or which interferes with the performance of Employee’s duties for the City.

Further, Employee shall not, during the term of this Agreement, individually, as a partner, joint venture, officer or shareholder, invest or participate in any business venture conducting business in the corporate limits of the City of Clayton.
(c) Outside Activities. Employee shall not spend more than eight (8) hours per month in teaching, consulting, expert witness testimony, speaking, or other non-City connected business for which compensation is paid without express prior consent of the City Council. Employee will take personal leave (i.e. vacation time) for all outside activities of this nature.

3. Hours of Work. Employee is an exempt employee and is expected to engage in those hours of work that are necessary to fulfill the obligations of the City Manager’s position.

Employee does not have set hours of work as Employee is expected to be available at all times. It is recognized that Employee must devote a great deal of time to the business of the City outside of the City’s customary office hours, and to that end Employee’s schedule of work each day and week shall vary in accordance with the work required to be performed and in accordance with any specific direction provided by the City Council.

4. Term. The term of this Agreement shall be for three (3) years from the Effective Date through September 16, 2027, unless terminated earlier by either party in accordance with the provisions set forth in Section 9.

5. Annual Evaluation. On or about six months of September 16, 2024 and then each year on or about September 16 thereafter or (Employee’s anniversary date), the City Council shall conduct an evaluation of Employee’s performance and provide guidance and direction regarding the 8b Attachment 1
3 City Council’s goals and objectives which Employee shall be tasked with implementing. At the time of the evaluation, Employee shall be eligible to receive an increase in base salary, as determined by the City Council in its sole discretion. Employee shall be eligible for the first increase on Employee’s first anniversary date, and then annually with the performance evaluation thereafter. Employee is not automatically entitled to any increase, which is subject to the sole discretion of the Council. While a formal evaluation will be conducted annually, the Council, at more frequent intervals and at times selected by the Council, can also conduct an informal review and/or provide other input to Employee regarding Employee’s job performance.

6. Compensation. Employee shall receive the base annual salary of Two Hundred Forty Thousand Dollars ($240,000), payable on a pro-rata basis on established paydays and in accordance with payroll in the same manner as all full time City employees, and subject to all applicable payroll taxes and withholdings. In accordance with Section 5, provided that Employee receives overall satisfactory marks from the City Council on his first annual evaluation (conducted on or about the completion of his first year), Employee’s salary will be increased to Two Hundred Fifty Thousand Dollars ($250,000) effective on Employee’s first anniversary date. Any increases awarded thereafter will be in accordance with Section 5.

7. Regular Benefits and Allowances. Employee shall be entitled to those employee benefits (in the form of health insurance and retirement benefits), adopted by Employer for department manager employees from time to time, subject to applicable qualification requirements and regulatory approval requirements, if any. Employer agrees to provide and pay the City allowance for vision, dental, and medical insurance for Employee and his dependents, if any, equal to that which is provided to department manager employees of Employer. Similarly, Employer agrees to enroll Employee in the City-provided disability insurance program and to obtain a life insurance policy in the amount of 8b Attachment 1
4 $50,000, for which Employee can designate the beneficiary(ies). All benefits provided to Employee are subject to change consistent with City policy, Council approval, and applicable law.

8. Additional Benefits and Allowances. In addition to the benefits specified in Section 7, Employee shall receive the following additional benefits and allowances. (a) Vacation; Sick Leave; Administrative Leave
(i) Vacation. Employee shall accrue one hundred sixty (160) hours of vacation each year, earned on a pro rata basis each pay period, and subject to use in accordance with the vacation policy established for all full-time City employees. (ii) Sick Leave. Employee shall be allowed to accrue and use paid sick leave in accordance with the sick leave policy established for all full-time City employees. As a onetime award, in addition to accruing sick leave on a monthly basis as hours are worked, Employee shall be provided with forty (40) hours of sick leave on his date of hire, available for use in accordance with the City’s sick leave policy applicable to full-time City employees. (iii) Administrative Leave. Employee will be granted up to a maximum of one hundred twenty (120) hours of paid Administrative Leave each fiscal year. This amount is awarded to Employee on July 1 of each fiscal year. If Employee has any amount of Administrative Leave remaining at the conclusion of the fiscal year, on July 1, the Employee will be awarded with however many hours are necessary to bring the total number of Administrative Leave hours to 120. (For example, if Employee has 80 hours of Administrative Leave remaining on June 30, 2024, Employee will be awarded with 40 hours on July 1, 2024, so that the total Administrative Leave equals 120 hours).

Unused Administrative Leave will not be paid in cash or any other form of compensation upon separation from City employment. It remains available to Employee only to use in connection with active employment. On the Effective Date of this Agreement, Employee will be awarded one hundred 8b Attachment 1
5 (120) hours of Administrative Leave, on account of commencing employment part-way through the current fiscal year.
(b) Automobile. Employee shall receive a monthly vehicle allowance of Four Hundred Dollars ($400.00) per month. The parties intend for this taxable allowance to be in in lieu of reimbursement on an itemized basis for mileage, gas, maintenance of a vehicle, etc. Employee shall not be separately reimbursed for mileage driven in a personal vehicle. (c) Retirement.
(i) CalPERS: Employer agrees to enroll Employee into the California Public Employees Retirement System (“CalPERS) and shall pay the PERS Employer share subject to this section. Employee shall be responsible for paying the PERS Employee share. (ii) Deferred Compensation: Employer maintains a deferred compensation plan pursuant to Internal Revenue Code Section 457 (“the Plan”). Employer shall provide a monthly contribution of $400, paid directly into the Plan on Employee’s behalf. In addition, Employee shall be allowed to make contributions from his own wages to the Plan, subject to limitations and restrictions imposed by the Plan and applicable law.
(d) Technology Allowance. Employee shall receive a $50 monthly taxable technology allowance to use towards his personal discretionary technological purchases and expenses in furtherance of City employment (e.g. cellular phone, tablet, data plan, laptop computer). The parties intend this allowance to cover all technology-related costs that Employee incurs in the course and scope of employment with the City.

9. Termination of Employment.
(a) No Property Interest. Employee understands and agrees that Employee has no constitutionally-protected property or other interest in Employee’s employment as City Manager. 8b Attachment 1
6 Employee understands and agrees that Employee works at the will and pleasure of the City Council, and that Employee may be terminated, or asked to resign, at any time, with or without cause, by a majority vote of its members. Notice of termination shall be provided to Employee in writing. “Termination,” as used in this Agreement, shall also include 1) a request that Employee resign; 2) a reduction in salary or other financial benefits provided by the City in a significant amount which is inconsistent with a reduction in salary or financial benefits for employees in the executive management unit; or 3) the elimination of the City Manager’s position.
(b) Termination Immediately Before or Following City Council Election. No action by the City Council to terminate Employee, other than for gross mismanagement or an act of moral turpitude (as described in Section 9(f)), will be made within ninety (90) days either before a City Council election or immediately following a City Council election. Nothing in this paragraph alters the “at will” status of Employee’s employment with City.
(c) Notice Required Of Employee. Employee may voluntarily terminate employment at any time by giving not less than sixty (60) days notice. (d) Severance Pay. If Employee is asked to resign or is terminated as City Manager, then Employee shall be eligible to receive a cash payment equivalent to the sum of Employee’s then-current monthly salary multiplied by three (3) (or by the remaining number of months in the Agreement, whichever is less) and the cash value, as determined by the City, of Employee’s monthly nonsalary COBRA-eligible benefits multiplied by three (3) (or [pursuant to Government Code section 53260] by the remaining number of months in the Agreement, whichever is less). Notwithstanding the above, if in or around September 2025, Employee receives a positive annual performance evaluation, as determined in the sole discretion of the City Council, then the amount of severance Employee is eligible to receive under this paragraph shall be equivalent to the sum of the Employee’s then-current monthly salary multiplied by 8b Attachment 1
7 six (6) (or by the remaining number of months in the Agreement, whichever is less) and the cash value, as determined by the City, of Employee’s monthly non-salary COBRA-eligible benefits multiplied by six (6) (or [pursuant to Government Code section 53260] by the remaining number of months in the Agreement, whichever is less). This cash payment will be made on a pro-rated, monthly basis over the number of months involved, subject to termination of the severance requirement set forth below. Employee shall also be paid for any accrued, but unused, vacation leave, but not accrued sick leave. Eligibility for such severance payment is expressly conditioned upon Employee’s execution of (i) a waiver and release of any and all of Employee’s claims against City, and (ii) a covenant not to sue. All normal payroll taxes and withholdings as required by law shall be made with respect to any amounts paid under this section.

Employee expressly agrees to provide notice to the City within two (2) business days of accepting employment elsewhere, and the City’s obligation to pay any remaining severance benefits to Employee shall terminate upon Employee’s acceptance of such alternative employment. (e) Long-Term Disability. If Employee is unable to perform assigned duties because of sickness, accident, injury, mental incapacity or health for a period of four consecutive months (with or without reasonable accommodation), Employer shall have the option to terminate this Agreement.

Employee agrees that, due to the importance of Employee’s position with the City, an inability to perform duties for a period in excess of four consecutive months could not be reasonably accommodated. If Employee is terminated because of long-term disability, Employee shall be compensated in a lump sum for any accrued and unused vacation. Employer shall have no further responsibility to make, and Employee shall be deemed ineligible for, severance payments pursuant to subdivision (d). Eligibility for such severance payment is expressly conditioned upon Employee’s execution of (i) a waiver and release of any and all of Employee’s claims against Employer, and (ii) a covenant not to sue in a form provided by Employer.
8b Attachment 1
8 (f) Ineligibility for Severance Under Certain Conditions. If the termination of Employee is the result of “good cause,” Employee shall not be paid any severance pay. For purposes of this section, “good cause” includes: (i) gross neglect of duties which has a negative impact on City operations; (ii) gross mismanagement which has a negative impact on City operations, and/or (iii) an act or acts of moral turpitude determined to have a negative impact on City operations or the Employee’s ability to serve the City. If Employee disagrees with the City’s determination of “good cause,” Employee’s sole remedy shall be a judicial action in declaratory relief to determine whether there was evidence of “good cause” as established above. If the court determines there was not substantial evidence of “good cause,” Employee shall receive the severance pay provided in this subsection, but no other damages.

10. Statutory Requirements. This Agreement shall be deemed to incorporate by reference the provisions of Sections 53243 et seq. of the Government Code, as it may be amended or renumbered.

11. Payment of Expenses of Employment. The City shall pay to Employee the usual and customary employment expenses incurred while performing the duties described in this Agreement, which may include travel, meals, lodging expenses, and parking fees, consistent with the City’s reimbursement policies. Employee shall submit a receipt and a description of the expenses to the City’s Finance Manager within thirty (30) days of the date each expense is incurred as a condition of obtaining reimbursement. In addition to these expenses, the City shall pay:
(a) The cost of any fidelity or other bonds required by law for the City Manager.
(b) Subject to Section 12 of this Agreement, the cost to defend and indemnify Employee to the full extent of the law as provided by the California Government Claims Act (Government 8b Attachment 1
9 Code §810 et seq.), or otherwise. Notwithstanding the foregoing, City’s obligation to defend and indemnify Employee shall extend only to the entry of a final judgment by the trial court, and shall not extend to providing defense or indemnity in connection with an appeal of the judgment, unless otherwise specifically provided by law. City will determine, in its sole discretion, whether to compromise and settle any such claim or suit against Employee and the amount of any settlement or judgment rendered thereon. (c) Reasonable dues for Employee's membership in the International City Management Association (“ICMA”). The City will allow Employee reasonable time away from the City to participate in the annual conference of this organization. (d) Subject to budget approval, the cost of attending conferences or other events (i.e. retirement dinners, out-of-town meetings, professional seminars, etc.) necessary for the proper discharge of Employee’s duties. The City will not reimburse Employee for any expenses related to membership in service clubs.

12. Miscellaneous.
(a) Notices. Notices given under this Agreement shall be in writing and shall be:
(i) served personally; or
(ii) sent by facsimile (provided a hard copy is mailed within one (1) business day); or
(iii) delivered by first-class United States mail, certified, with postage prepaid and a return receipt requested; or
(iv) Sent by Federal Express, or some equivalent private overnight delivery service.
8b Attachment 1
10 Notices shall be deemed received at the earlier of actual receipt or three (3) days following deposit in the United States mail, postage prepaid. Notices shall be directed to the addresses shown below, provided that a party may change such party's address for notice by giving written notice to the other party in accordance with this subsection.

CITY:

City of Clayton
Attn: Mayor
6000 Heritage Trail
Clayton, CA 94517
Phone: (925) 673-7300
Fax: (925) 672-4917
EMPLOYEE: Kris Lofthus
(Address in Employee’s Personnel File)
(b) Compliance with Government Code §§53243, 53243.1, & 53243.2. If Employee is convicted of a crime involving an abuse of his office or position, all of the following shall apply:
(i) if Employee is provided with administrative leave pay pending an investigation, Employee shall be required to fully reimburse the City for such amounts paid; (ii) if the City pays for the criminal legal defense of Employee (which would be in its sole discretion, as it is not generally required to pay for a criminal defense), Employee shall be required to fully reimburse City such amounts paid; and (iii) if this Agreement is terminated, any cash settlement related to the termination that Employee may receive from the City shall be fully reimbursed to the City or void if not yet paid to Employee.

For this subsection, “abuse of office or position” means either (1) an abuse of public authority, including waste, fraud, and violation of the law under color of authority, or (2) a crime against 8b Attachment 1
11 public justice, including but not limited to a crime described in Title 7 (commencing with Section 92) of Part 1 of the Penal Code.
(c) Entire Agreement/Amendment. This Agreement constitutes the entire understanding and agreement between the parties as to those matters contained in it, and supersedes any and all prior or contemporaneous agreements, representations and understandings of the parties. This Agreement may be amended at any time by mutual agreement of the parties, but any such amendment must be in writing, dated, and signed by the parties and attached hereto. (d) Attorney's Fees. If any legal action or proceeding is brought to enforce or interpret this Agreement, each party shall bear their own fees, including such fees and costs as may be incurred in enforcing any judgment or order entered in any such action. (e) Severability. In the event any portion of this Agreement is declared void, such portion shall be severed from this Agreement and the remaining provisions shall remain in effect, unless the result of such severance would be to substantially alter this Agreement or the obligations of the parties, in which case this Agreement shall be immediately terminated. (f) Waiver. Any failure of a party to insist upon strict compliance with any term, undertaking, or condition of this Agreement shall not be deemed to be a waiver of such term, undertaking, or condition. To be effective, a waiver must be in writing, signed and dated by the parties. (g) Representation by Counsel. The parties acknowledge and agree that they were, or had the opportunity to be, represented individually by legal counsel with respect to the matters that are the subject of this Agreement and that they are fully advised with respect to their respective rights and obligations resulting from signing this Agreement.
8b Attachment 1
12 (h) Governing Law and Venue. This Agreement shall be governed by and construed in accordance with the laws of the State of California. Employee and City agree that venue for any dispute shall be in Contra Costa County, California. (i) Section Headings. The headings on each of the sections and subsections of this Agreement are for the convenience of the parties only and do not limit or expand the contents of any such section or subsection.
(j) No Assignment. Employee may not assign this Agreement in whole or in part.

Dated: CITY OF CLAYTON

Jim Diaz, Mayor
Dated: EMPLOYEE
Kris Lofthus
Attest:

Stephanie Cabrera-Brown, City Clerk
Approved as to Form:

Mala Subramanian, City Attorney
8b Attachment 1

Clayton City CouncilAugust 20, 2024

Clayton City Council
August 20, 2024