HomeMy WebLinkAbout2012-03-13 City Council Item No. 5CITY OF
L14KE L LSIl`IOI�E
-�� DREAM EXTREMEn
REPORT TO CITY COUNCIL
TO: HONORABLE MAYOR
AND MEMBERS OF THE CITY COUNCIL
FROM: BARBARA LEIBOLD, CITY ATTORNEY
DATE: MARCH 13, 2012
RE: SETTLEMENT AND IMPLEMENTATION AGREEMENT WITH K.
HOVNANIAN AT LA LAGUNA
Background
In July, 1990, the City and the original developer of La Laguna Estates entered into a
Development Agreement for the development of residential units on a 489 -acre project
site. The following year, the City approved the La Laguna Estates Specific Plan
( "Specific Plan "), which proposes the development of 660 dwelling units.
In 2001, the City and the original developer executed an amendment to the
Development Agreement extending the term of the Original DA to July 18, 2010, and
revising the schedule of development impact mitigation fees that were applicable to the
project, including a $1,000 per unit development agreement fee ( "DAG Fee ").
In connection with the development of the first four project tracts, the developer applied
for 515 building permits and erroneously paid certain City development impact fees not
listed in the Development Agreement in the amount of $566,284 and also erroneously
paid MSHCP fees in the amount of $536,721. Of the $536,721 of MSHCP fees
erroneously collected, $521,217 had been transmitted by the City to the Regional
Conservation Authority ( "RCA "). The City currently holds the balance, $15,504.
The developer has presented an analysis of the Project's vested rights and requested a
refund of fees in the amount of overpayment. In order to avoid the time and expense of
protracted litigation, the City and the developer have engaged in settlement discussions
under the direction of the City Council. An agreement has been prepared consistent
with those negotiations and is before the City Council this evening.
Discussion
A copy of the proposed Settlement and Implementation Agreement is attached. As
structured, the agreement only imposes a cash payment by the City of the MSHCP fees
currently retained by the City, that is, $15,504. The proposed agreement provides for
the following additional key terms: AGENDA ITEM NO. 5
Page 1 of 13
Settlement and Implementation Agreement
March 13, 2012
Page 2
• The City agrees to coordinate in good faith with developer to assist developer in
seeking a reimbursement or credit from RCA for the amounts of MSHCP fees
erroneously paid. The City also agrees to not impose further MSHCP fees on the
remainder of the project.
• The City shall retain the $566,284 in erroneously paid City impact fees but shall
forego any claim to further DAG fees under the Development Agreement.
• The City will continue to collect the library improvement fees of $150 per unit;
plan -check and processing fees, a parkland dedication in -lieu fees for the
remainder of the units as building permits are pulled as provided in the
Development Agreement.
Fiscal Impact
None. Although the City will refund $15,504 of erroneously collected MSHCP fees,
those fees would have otherwise been forwarded to RCA.
Recommendation
That the City Council approved the attached Settlement and Implementation Agreement
and authorize the Mayor to execute the agreement, subject to any minor modifications
as may be approved by the City Attorney.
Prepared by: Barbara Leibold, City Attorney
Attachment: Settlement and Implementation Agreement
Page 2 of 13
SETTLEMENT AND IMPLEMENTATION AGREEMENT
This SETTLEMENT AND IMPLEMENTATION AGREEMENT ( "Agreement ") is
entered into as of this 13th day of March 2012, by and between THE CITY OF LAKE
ELSINORE, a municipal corporation ( "City ") and K. HOVNANIAN AT LA LAGUNA LLC
(the "Developer ") with respect to the facts set forth in the Recitals below. City and Developer
shall hereinafter be referred to, collectively, as the "Parties" and, each, a "Parry."
RECITALS
A. On or about July 18, 1990, the City and La Lagmi 'Estates (the "Original Developer ")
entered into a Development Agreement pursuant to Govesninent Code section 65964, et seq. (the
"Original DA ") for the development of 600 residenfiai:iiwellfgg units on a 489 -acre site (the
"Project ") located within the City's jurisdiction.
B. Sections 3.5, 4.8, 4.8.1, and 4.8
DA set forth the exactions, dedications, and
Section 3.5 of the Original DA outlines
development of the 600 residential units,
obligations the "Developer shall have fulfill
impose nor assist any other entity in iprpo:
exaction or other requirement against anyprc
Original DA outlines a schedule of Develops
" [o]ther than the Development: Agreement lV
only those fees listediri Exhibit D "and/or exp
with only those conditions and make only th
Agreement or included asJ,a.condtrion apl
o ,ttie Original DA and khibit D to the Original
lther :; requirements for the Project in their entirety.
the xDevelopei s; - mitigation 'obligations for the
nd pro04es h if the Developer fulfills these
i its entire b ligation" and "the City shall neither
ng colle6 .any fee, charge, dedication, tax,
lerty owned b"eyeloper...." Section 4.8 of the
lent Agreement Mitigation Fees and provides that,
tigatioii Fees;:Developer shall be obligated to pay
esslypermitted.utider Section 4.8.1, and to comply
s6 and improvements specified in this
royal to the Tentative Map, which conditions and
aeaicanons snasi oe nmuea ro -nose perm. 1 ea unaer:me Hppucaose Law 01 me rroject. 1ne
Original:DA defines "ApplicAlo"Law of ihe'Proic& `to "mean all of the rules, regulations, and
official polices governing, permit uses of 't13e land, density, design, improvement and
construction ,standards and _specificd ibns in force as of the Effective Date [July 18, 1990]
including, without limitation; chose goveming the issuance of permits and approvals for the
Project. ." Section 4.8.1 provides: "[t]he City shall not (a) impose any fees, taxes,
assessments, conditions, dedications, exactions, or other requirements not expressly provided
herein ... or (b) increase existing fees, taxes, assessments, conditions, dedications, or other
exactions or other requirements:" Section 4.8.2 provides that "[t]he fees applicable to the
Project, as provided in Exhibit D, and any taxes, assessments, conditions, dedications, exactions,
or other requirements applicable to the Project shall not be modified or renegotiated by the City
as a condition of approval of the Tentative Map, or any final map, or as a result of the filing of
any new subdivision or processing of any lot -line adjustment " Finally, Exhibit D to the Original
DA limits "the fees applicable to the Project" to: (1) fees for the City's Master Entryway Sign
Program in an amount to be determined by the Tentative Map conditions, (2) Library Capital
Improvement Fees in the amount of $150 per unit; (3) planning application, plan- check, and
processing fees for land -use approvals at the rate in effect at the time application is made for
such approvals or permits; and (4) Parkland Dedication In -Lieu Fees in an amount to be
determined by the Tentative Map conditions.
119/024740 -0001 Page 3 of 13
2543863.5 a03/08/12 9
C. In 1991, the Original Developer applied for approval of the La Laguna Estates
Specific Plan ( "Specific Plan "), which proposes the development of 660 dwelling units on the
489 -acre Project site. Although the Specific Plan proposes 60 more units than were referenced in
the Original DA, the City made a finding of "substantial conformance." After completing the
environmental review required by the California Environmental Quality Act (Cal. Pub. Res.
Code §§ 21000 — 21177) ( "CEQA ") and the CEQA Guidelines (14 C.F.R. §§ 15000 — 15387), the
City approved the Specific Plan on November 10, 1998.
D. As part of the environmental review required by CEQA, the City and the Original
Developer created a Habitat Mitigation Plan in May 1994. The California Department of Fish
and Game ( "CDFG ") endorsed the Habitat Mitigation Plan as providing adequate mitigation to
offset impacts to biological resources caused by the implementation of the Specific Plan. In
December 1996, the City and the Original Developer re- evaluated and revised the Habitat
Mitigation Plan to ensure that it accurately mitigates impacts to sensitive biological resources on
the Project site. The United States Fish and Wildlife Service ( "USFWS ") reviewed the Revised
Habitat Mitigation Plan and concurred with the CDFG's determination that the Plan would
mitigate impacts to biological resources to less than significant levels.
E. On or about April 30, 2001, the City and the Original Developer executed an
amendment to the Original DA (the "Amended DA "). The Amended DA extends the term of the
Original DA to July 18, 2010, and revises the schedule of Development Agreement Mitigation
Fees. Similar to the Original DA, the Amended DA sets forth the exactions, dedications, and
other requirements for the Project in their entirety. Specifically, section 2.1 of the Amended DA
provides that "[o]ther than Development Mitigation Fees, Developer shall be obligated to pay
only those fees listed in Exhibit D" to the Original DA "and/or expressly permitted under Section
4.8.1" of the Original DA, "and to comply with only those conditions and make only those
dedications and improvements specified in this Agreement or included as conditions of approval
to the Tentative Map, which conditions and dedications shall be limited to those permitted under
the Applicable Law of the Project." Section 3.1 of the Amended DA clarifies that, "[e]xcept as
expressly provided to the contrary in this First Amendment [to the Original DA], all provisions
of the Original Development Agreement shall remain in full force and effect."
F. Developer subsequently became the successor in interest to the Original Developer.
Section 8.1 of the Original DA provides that "[p]ursuant to Government Code section 65868.5,
the burdens and benefits of this Agreement shall bind and inure to the benefit of all successors in
interest to the parties to the Agreement."
G. In 2003, after the approval of the Amended DA, the City Council adopted Ordinance
No. 1096 (codified at Mun. Code §§ 16.83.010 — 16.83.080), which establishes that the Western
Riverside County Transportation Uniform Mitigation Fee ( "TUMF ") would be assessed on new
development to mitigate the development's impact on the regional system of highways and
arterials. Ordinance No. 1096 specifies, however, that "[t]he following new development shall
be exempt from the TUMF:... [p]rojects which are the subject of a Development Agreement
entered into pursuant to Government Code Section 65864, et seq., prior to the effective date of
the ordinance codified in this chapter, wherein the imposition of new fees are expressly
prohibited; provided, that if the term of such a Development Agreement is extended by
amendment or by any other manner after the effective date of the ordinance codified in this
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chapter, the TUMF shall be imposed." (Mon. Code § 16.83.40.F.4.) The City Attorney, the
City Staff, the City Council and the Developer have each concluded that, pursuant to section
16.83.49.F.4 of the City's Municipal Code, the entire Project is exempt from the TUMF because:
(1) the Project was the subject of a Development Agreement entered into pursuant to
Government Code Section 65864, et seq. prior to the effective date of Ordinance No. 1096, (2)
sections 3.5, 4.8, 4.8.1, and 4.8.2 of the Original DA and section 2.1 of the Amended DA
expressly prohibit the imposition of new fees, and (3) the Original DA and the Amended DA
were not extended by amendment or by any other manner after the effective date of Ordinance
No. 1096.
H. On February 4, 2004, the Planning Commission adopted Resolution No. 2003 -02
recommending that the City Council approve Amendment No. 1 to the Specific Plan with
amended Conditions of Approval. Among other changes, Amendment No. 1 to the Specific Plan
specifically deleted a Condition of Approval from the Specific Plan that would have required the
Developer to pay regional fees, such as the TUMF. In accordance with the Planning
Commission's recommendation, the City Council adopted Ordinance No. 1090 on February 25,
2004, approving Amendment No. 1 to the Specific Plan, without any requirement to pay regional
fees, such as the TUMF.
I. On July 27, 2004, the City Council adopted Ordinance No. 1124 (codified at Mun.
Code §§ 16.85.010- 16.85.110), which established a local development mitigation fee for funding
the preservation of natural ecosystems in accordance with the Western Riverside County
Multiple Species Habitat Conservation Plan (the " MSHCP Fee "). The Implementing Resolution
for the MSHCP Fee (Resolution No. 2004 -11) specifies that "[t]his resolution shall not apply to.
.. [a]ny project for which and to the extent that ... a development agreement pursuant to
Government Code section 65964, et seq., approved or executed prior to the adoption of this
Resolution, confers vested rights under the City's ordinances or state law to proceed with the
project notwithstanding the enactment of this Resolution." The City Attorney, the City Staff, the
City Council and the Developer have each concluded that, pursuant to Resolution No. 2004 -11,
the entire Project is exempt from the MSHCP Fee because: (1) the Project's Original DA and
Amended DA were approved and executed prior to the adoption of the Resolution No. 2004 -11,
and (2) sections 3.5, 4.8, 4.8.1, and 4.8.2 of the Original DA and section 2.1 of the Amended DA
confer vested rights under the City's ordinances and state law to proceed with the Project
notwithstanding the enactment of fees, taxes, assessments, conditions, dedications, exactions, or
other requirements not expressly provided in the Original DA or included as a condition of
approval to the Tentative Map.
J. Subject to certain limitations not applicable here, section 65961 of the Government
Code precludes a local agency from imposing any condition on a building permit that it could
have lawfully imposed on a previously approved tentative map. In the relevant part, section
65961 provides: " ... upon approval or conditional approval of a tentative map for a subdivision
of single- or multiple - family residential units, . . . during the five -year period following
recordation of the final map or parcel map for the subdivision, a city ... shall not require as a
condition to the issuance of any building permit .... conformance with or the performance of
any conditions that the city ... could have lawfully imposed as a condition to the previously
approved tentative ... map."
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K. Between July 2003 and August 2010, the City approved Tentative Tract Maps for the
six tracts that comprise the Project (Final Tract Map Nos. 30788, 30789, 31917, 32337 -1, 32337-
2 and 32337 -F). When the City approved these Tentative Tract Maps, it did not impose as a
Condition of Approval the future payment of local and/or regional fees, such as the City's
Transportation Impact Fees ( "TIF "), Development Impact Fees ( "DIF "), and Fire Fees, and
Western Riverside County's TUMF and MSHCP Fees. The City Attorney, the City Staff, the
City Council, and the Developer have determined that section 65961 of the Government Code
bars the City from imposing these fees as a condition of the issuance of building permits.
L. To complete the first four subdivisions of the Project (Final Tract Map Nos. 30788,
30789, 31917, and 32337 -1), the Developer applied for and the City issued approximately 515
building permits. In connection with the issuance of these building permits, the City charged and
the Developer paid City Impact Fees (consisting of the DIF, and Fire Fees) in the amount of
$566,284 and MSHCP Fees in the amount of $536,721. All Parties agree that these prior fees
were charged and paid in error. Of the $536,721 of MSHCP Fees erroneously collected,
$521,217 had been transmitted by the City to the Regional Conservation Authority ( "RCA ").
After discovering that these fees were collected in error, the City did not transmit the remaining
$15,504, and is currently holding those fees for return to Developer.
M. To complete the final two subdivisions of the Project (Tentative Tract Map Nos.
32337 -2 and 32337 - "F "), the Developer will need to apply for and the City will need to issue
approximately 117 building permits. The Parties agree that the $566,284 in City fees
erroneously collected in connection with previously issued building permits as described in
Recital L shall be retained by the City and that future City fees that would be due for the 117
building permits shall be pursuant to the fee schedule agreed upon in the Amended DA.
N. Pursuant to section 4.8.1 of the Original DA and section 2.1 of the Amended DA, the
Developer has paid the City Development Agreement Mitigation Fees.
O. Pursuant to the Original DA and the Environmental Impact Report ( "EIR" ), the
Developer has taken the following measures to mitigate the Project's impact on traffic: (1) the
Developer cooperated with the City to form a Mello -Roos District for the purpose of funding the
planning, design, and construction of the street improvements required by the Original DA; (2)
the Developer voted in favor of a special tax levy to the electors of the Mello -Roos District to
fund the street improvements required by the Original DA; and (3) the Developer provided two
new roads — an arterial highway and a secondary highway. The City has conclusively
determined that the Project has fully mitigated its traffic impacts.
P. Pursuant to the Original DA, the Specific Plan, and the Habitat Mitigation Plan, the
Developer has taken the following measures to mitigate the Project's impact on sensitive
biological resources on the Project site: (1) the Developer hired consulting firms to perform
multiple environmental assessments of sensitive plant and animal species; (2) the Developer
complied with the Habitat Mitigation Plan endorsed by the CDFG and the Revised Habitat
Mitigation Plan endorsed by the USFWS; (3) the Developer paid $176,000 in Parkland
Dedication In -Lieu Fees; (4) using Mello -Roos funds, Owner Park Fees, and Development
Agreement Mitigation Fees, the Developer acquired a Park Site; and (5) the Developer reserved
approximately 140 gross acres (29% of the Project site) as natural open space and approximately
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142 acres as open space. The City has conclusively determined that the Project has fully
mitigated its biological impacts.
Q. With the exception of the final 121 building permits and the specific on -site
improvements relating thereto, the Original Developer and the Developer completed the
development of the Project in accordance with the Original DA and the Amended DA prior to
the expiration of the DA. Much of the development of the Project occurred prior to the City's
2003 adoption of Ordinance No. 1096 and its 2004 adoption of Ordnance No. 1124.
R. In a letter dated September 14, 2011, the Developer notified the City that the
Developer had erroneously paid MSHCP Fees in connection with the issuance of prior building
permits. The Developer further notified the City that its future permits were not subject to
MSHCP Fees and TUMF Payments. In the letter, the Developer explained that: (1) the
resolutions and ordinances enacting the TUMF and the MSHCP Fee exempt pre- approved new
development, like the Project, from their mitigation fee requirements; (2) section 65961 of the
Government Code bars the City from demanding TUMF and MSHCP Fees in connection with
the building permits needed to complete the final subdivisions of the Project because the City did
not impose these fees as a Condition of Approval when it approved the Tentative Tract Maps for
these subdivisions; (3) pursuant to the Original DA, the Amended DA, the Specific Plan, and the
Habitat Mitigation Plan, the Developer has already taken measures to fully mitigate the future
impact of the entire Project, and accordingly, requiring duplicative mitigation measures would
violate the Mitigation Fee Act (Government Code §§ 66000 — 66025) and the takings clauses of
the State and Federal Constitutions; and (4) by fulfilling its mitigation obligations under the
Original DA, the Amended DA, the Specific Plan, and the Habitat Mitigation Plan, the
Developer acquired a vested right to complete the Project without paying newly- imposed TUMF
and the MSHCP Fees. The City has determined based upon its independent evaluation of the
Developer's position that the Developer's position is meritorious.
S. This Agreement is entered into in good faith for the purpose of settling all disputes
between the Parties relating to the payment of past and future fees relating to the Project.
NOW, THEREFORE, in consideration of the mutual covenants set forth in this
Agreement, and for other good and valuable consideration, the receipt and adequacy of which are
hereby acknowledged, the Parties to this Agreement covenant and agree as follows:
1. Prior MSHCP Fees Erroneously Assessed For the building permits previously
issued in the Project, Developer was erroneously assessed and erroneously paid, $536,721 for the
Western Riverside County MSHCP Fees. The City has turned all but $15,504 of funds over to
the RCA. Within 30 days of the execution of this Agreement, the City shall refund to the
Developer the $15,504 in funds that were retained by the City. The City and the Developer
agree that these funds were assessed and paid in error for the reasons stated in the Recitals. The
City agrees to coordinate in good faith with Developer to assist Developer in seeking a
reimbursement or credit from RCA for the amounts erroneously paid. City Staff will provide
documentation, declarations, and/or testimony as needed to assist Developer in establishing that
the MSHCP fees were erroneously assessed and collected.
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2. Future MSHCP Fees Based upon facts and legal authorities set forth in the
Recitals and in Developer's prior correspondence to the City, the Parties agree that the remaining
building permits for the Project are not subject to the MSHCP Fees. If it is subsequently
determined by a court of competent jurisdiction in a final judgment that future Project building
permits are subject to the MSHCP fees, Developer will be entitled to a credit of up to $521,217
subject to and to the extent such credit is approved by RCA in lieu of the refund to be requested
from RCA pursuant to Section 1 herein.
3. Regional Transportation Uniform Mitigation Fee (TUMF) Based upon the facts
and legal authorities set forth in the Recitals and in the Developer's prior correspondence to the
City, the Parties agree that future building permits for the Project are not subject to TUMF
payments.
4. City Impact Fees Based upon the facts and legal authorities set forth in the
Recitals and in the Developer's prior correspondence to the City, and in settlement of such other
matters involving fees, the City shall retain the City Impact Fees referenced in Recital L.
5. Future Development Impact Fees under Amended DA Based upon the facts and
legal authorities set forth in the Recitals and in the Developer's prior correspondence to the City,
City agrees that future building permits for the Project shall be subject only to the development
fees under the fee schedule agreed upon in the Amended DA.
6. Representations. Warranties and Covenants Each Party to this Agreement (each,
the "Representing Party ") hereby represents and warrants to the other Parties as follows:
a. The Representing Party has the right, power, legal capacity and authority to
enter into and perform its obligations under this Agreement, and no approvals
or consents of any person or entity other than the Representing Party are
necessary in connection with it. The execution and delivery of this
Agreement and the documents related hereto by the Representing Party have
been duly authorized by it, and this Agreement and the documents related
hereto, when executed and delivered, shall constitute a legal, valid and
binding obligation of the Representing Party enforceable against it in
accordance with their terms.
b. Each person executing this Agreement on behalf of an entity, other than an
individual executing this Agreement on his or her own behalf, represents that
he or she is authorized to execute this Agreement on behalf of said entity.
c. The Representing Party has not assigned or transferred to any third party any
of the rights, claims, causes of action or items to be released or transferred,
which it is obligated to transfer or to release as part of this Agreement. If a
Representing Party breaches the foregoing representation and warranty, such
Representing Party shall defend, indemnify and hold harmless the non-
breaching Parties, of, from and against all liabilities, claims, demands,
damages, costs, expenses, and attorneys' fees incurred by such non - breaching
Parties as a result of any person or entity asserting any such assignment or
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transfer in violation of this paragraph's representation and warranty. It is the
intention of the Parties, and each of them, that this indemnity does not require
payment as a condition precedent to recovery.
7. Indemnification Developer shall defend, indemnify, and hold the City harmless
from any of the following:
a. Any lawsuit filed against the City, the City Council, or any City official or
employee (collectively, "the Indemnified Parties ") challenging this
Agreement;
b. Any lawsuit filed against the Indemnified Parties arising from the City's
determination that the remaining building permits in the Project are exempt
from the MSHCP fees and TUMF payments.
c. Any administrative proceeding or claim against the Indemnified Parties
arising from the City's determination that the remaining building permits in
the Project are exempt from the MSHCP fees and TUMF payments, provided,
however, that at the Developer's option, the Developer may choose to
voluntarily pay the disputed fees and upon such payment, its obligation to
defend, indemnify, and hold the Indemnified Parties harmless shall be
satisfied in full.
The City shall promptly notify the Developer of the assertion of any claim, lawsuit, or
proceeding against the Indemnified Parties, and shall fully cooperate in the defense against the
claim, action or proceeding. Any such action shall only be settled with consent of Developer.
To the extent that any of the litigation or administrative proceedings referenced above also
involve projects or fee disputes other than the Project and specific fee dispute outlined in the
recitals herein, Developer's obligations under this section shall be limited to providing the
defense and indemnification only with respect to the matters specific to the Project and fee
disputes described in the recitals.
8. Entire Agreement This Agreement contains the entire agreement of the Parties,
and supersedes any prior written or oral agreements between them concerning the subject matter
of this Agreement. This Agreement may only be waived, modified or amended by the written
agreement of all Parties to this Agreement.
9. Partial Invaliditv In the event that any term, covenant, condition or provision of
this Agreement shall be held by a court of competent jurisdiction to be invalid or against public
policy, the remaining provisions shall continue in full force and effect.
10. No Waiver The waiver by one Party of the performance of any covenant,
condition or promise shall not invalidate this Agreement, nor shall it be considered as a waiver
by such Parry of any other (or the enforcement for subsequent breaches or failures of the same)
covenant, condition or promise. The delay in pursuing any remedy or in insisting upon full
performance for any breach or failure of any covenant, condition or promise shall not prevent a
Party from later pursuing remedies or insisting upon full performance for the same or similar
breaches or failures.
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11. Headings The headings, subheadings and numbering of the different paragraphs
of this Agreement are inserted for convenience and reference only and are not to be taken as part
of this Agreement or to control or affect the meaning, construction or effect of the same.
12. Governing Law This Agreement shall be interpreted and enforced in accordance
with the laws of the State of California.
13. Successors In Interest This Agreement shall inure to the benefit of, and shall be
binding upon, the assigns, successors in interest, agents and related entities of each of the Parties
hereto.
14. Necessary Acts Each Party to this Agreement agrees to perform any further acts
and execute and deliver any further documents that may be reasonably necessary to carry out the
provisions of this Agreement.
15. Advice of Counsel Each Party hereto, by its due execution of this Agreement,
represents to every other Party that it has reviewed each term of this Agreement with its counsel
in the above - referenced litigation, and that hereafter no Party shall deny the validity of this
Agreement on the ground that the Party did not have advice of counsel generally or advice of its
counsel in the aforementioned litigation.
16. Construction Each Party has cooperated in the drafting and preparation of this
Agreement. In any construction to be made to this Agreement, or of any of its terms and
provisions, the same shall not be construed against any Party.
17. Notices Any notice or demand which by any provision of this Agreement is
required or permitted to be given or served shall be deemed so given or served if sent by United
States mail, certified or registered mail, postage prepaid, with return receipt requested. Such
notices or demands shall be effective upon the earlier of (a) three (3) business days after mailing,
or (b) actual receipt as evidenced by the return receipt, and shall be addressed as follows:
To: City of Lake Elsinore
130 South Main St.
Lake Elsinore, CA 92530
With a Copy to: Barbara Leibold, Esq.
Leibold McClendon & Mann, P.C.
23422 Mill Creek Dr
Suite 105
Laguna Hills, CA 92653
To: K. Hovnanian Forecast Homes,
dba K. Hovnanian at La Laguna
2525 Campus Drive
Irvine, CA 92612
With a Copy To: M. Katherine Jenson, Esq.
Rutan & Tucker, LLP
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611 Anton Boulevard, Suite 1400
Costa Mesa, CA 92626
18. Either Party may change its address for service of notices by giving written notice
to the other Party of the new address.
19. No Third Parties Benefited This Agreement is made for the sole benefit and
protection of the Developer (and its successors, if any) and Committee. No other person shall
have any right of action or right to rely thereon, and the Parties hereto hereby agree that nothing
contained in this Agreement shall be construed to vest in any other person or entity any interest
in or claim upon the funds that may be advanced pursuant to this Agreement or any rights under
this Agreement.
20. Execution This Agreement may be executed in counterparts.
[Remainder of Page Intentionally Left Blank]
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IN WITNESS WHEREOF, the Parties have executed this Agreement as of the date first
written above.
Dated: March 2012
APPROVED AS TO FORM:
BY:
Name: Barbara Leibold
Title: City Attorney
Dated: March 2012
APPROVED AS TO FORM:
By:
Name: M. Katherine Jenson
Title: Special Counsel
CITY OF LAKE ELSINORE
By: _
Name:
Title:
City Manager
K. HOVNANIAN AT LA LAGUNA LLC
By: _
Name:
Title:
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