HomeMy WebLinkAboutOrd. No. 1990-890ORDINANCE NO. 890
AN ORDINANCE OF TAE CITY COUNCIL OF THE
CITY OF LAKE ELSINORE APPROVING A
DEVELOPMENT AGREEMENT WITH ALBERHILL
RANCH ASSOCIATES.
WHEREAS, the Planning Commission of the City of Lake
Elsinore held a duly noticed public hearing on a proposed
Development Agreement between the City of Lake Elsinore and
Alberhill Ranch Associates on March 14, 1990, and found that
the Development Agreement is consistent with the City's
General Plan; and
WHEREAS, the City Council of the City of Lake Elsinore
held a duly noticed public hearing on the Development
Agreement on April 24, 1990, and found that (1) the
Development Agreement is consistent with the City's General
Plan and the Alberhill Ranch Specific Plan and (2) the
previously certified environmental impact report prepared for
the Alberhill Ranch Specific Plan is adequate and complete
for the Development Agreement;
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF LAKE
ELSINORE DOES HEREBY ORDAIN AS FOLLOWS:
Section 1. The Development Agreement between the City
of Lake Elsinore and Alberhill Ranch Associates, as set forth
in Exhibit A attached hereto, is hereby approved. The Mayor
is authorized to execute the Development Agreement and,
following such execution, the City Clerk shall cause"a copy
thereof to be recorded with the Riverside County Recorder
within ten (10) days.
Section 2. The City Clerk shall certify to the passage
and adoption of this Ordinance and shall oause the same to be
published in the manner required by law. This Ordinance
shall become effective upon the expiration of thirty (3oj
days from and after its passage.
PASSED UPON FIRST READING this 2'~*.M day of Ju.ne,r 1990
upon the following roll call vote:
AYES: COUNCILMEMBERS:
NOES: COUNCILMEMBERS:
ABSENT: COUNCILMEMBERS:
ABSTENTIONS:
BUCK, STARKEy, l,tqc}_!g+)nn;
NOPJE
DOP-1IN;UEZ, 4JINKLER
NONE
PASSED, APPROVED AND ADOPTED this lOth day of July_.,
1990 upon the following roll call vote:
AYES:
NOES: COUNCILMEMBERS:
ABSENT: COUNCILMEMBERS:
BUCK, DOP1IPIGUEZ, STARKEY, I~JINKLER, bJASHBLRPJ
P10PlE
NOfdE
ABSTENTIONS: COUNCILMEMBERS:
~ LU~~v6~--
~y M. Washburn, Mayo
_ty of Lake Elsinore
1~'P~TF~^i ;
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Vioki 'Lynn~Kasad, City Clerk
City of La ~lsinore
(SEPLJ
APPROVED S TO FORM AND LEGALITY:
~~
John R. a•pe , Ci y Attorney
City of La e 'lsinore
STATE OF CALIFORNIA )
COUNTY OF RIVERSIDE ) SS:
CITY OF LAKE ELSINORE )
I, Vicki Lynne Kasad, City Clerk of the City of Lake Elsinore,
DO HEREBY CERTIFY that the foregoing Ordinance had its first reading
on June 26, 1990, and had its second reading on July 10, 1990 and
was passed by the following vote:
AYES: COUNCILMEMBERS: BUCK, DOMINGUEZ, STARKEY,
WINKLER, WASHBURN
NOES: COUNCILMEMBERS: NONE
ABSENT: COUNCILMEMBERS: NONE
AESTAIN: COUNCILMEMBERS: NONE
C'~YNNE SAD C(~ ERK
CITY OF LAKE .LSINORE
(SEAL)
STATE OF CALIFORNIA )
COUNTY OF RIVERSIDE ) SS:
CITY OF LAKE ELSINORE)
I, Vicki Lynne Kasad, City Clerk of the City of Lake Elsinore,
DO HEREBY CERTIFY that the above and foregoing is a full, true and
correct copy of Ordinance No. 890 of said Council, and that the
same has not been amended or repealed.
DATED: July 18, 1990
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VI KC I LY NE SAD, CITY CLERK
CITY OF LAK~NORE
(SEAL)
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g .... . . . . .
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~ ._ .,
~ RECORDING REQUESTED BY
AND WHEN RECORDED RETURN TO:
City Clerk
" City of Lake Elsinore
130 South Main Street
Lake Elsinore, California 92330
DEVELOPMENT AGREEMENT
BETWEEN THE
CITY OF LAKE ELSINORE
AND
SRIGHTON ALBERHILL ASSOCIATES
FOR ALBERHILL RANCH DEVELOPMENT
, ..
TABLE OF CONTENTS
1. PARTIES AND DATE . . . . . . . . . . . . .
2. DEFINITIONS . . . . . . . . . . . . . . .
3. RECITALS.
3.1 Legal authority. . . . . . . . . . . . .
3.2 Consistency findiag . . . . . . . . . . . . .
3.3 Status of project. . . . . . . . . . . . .
3.4 Annexation to City . . . . . . . . . . .
3.5 Entitlements and approvals . . . . . . . . .
3.6 Consideration . . . . . . . . . . . . . . . .
4. PROPERTY COVERED . . .
5. INTEREST OF CONTRACTING PARTY . . . . . . . . . .
6. 'DURATION OF AGREEMENT . . . . . . . . . . . . . .
6.1 Scheduling . . . . . . . . . . . . . . .
6.2 Periodic review . . . . . . . . . . .
6.3 Certification of completion. . . . . . . . .
7. AMENDMENTS . . . . . . . . . . . . . . . . . . .
8. PERMITTED USES OF PROPERTY. . . . . . . . . . . .
9. VESTING OF RULES, REGULATIONS
AND OFFICIAL POLICIES . . . . . . . . . . . . . .
9.1 Effective standards . . . . . . . . . . . . .
9.2 No conflicting enactments. . . . . . . . . .
9.3 Initiatives and moratoria. . . . . . . . . .
9.4 Subsequent changes in state or
federal laws . . . . . . . . .
9.5 Fees, conditions and dedications ......
(1) Filing and processing fees . . . . .
(2) Taxing power . . . . . . . . . .
(3) Commercial rent control or
office condominium conversion . . . .
(4) Future tentative maps, specific plan
amendments and development impact fees
9.6 Life of subdivision maps . . . . . . . . . .
10. EFFECT OF AGREEMENT WHEN
RULES CHANGE . . . . . . . . . . . . . . . . . . .
11. COOPERATION AND COVENANT OF
FURTHER ASSURANCES . . . . . . . . . . . . . . . .
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11.1 Third party actions . . . . . . . . . . . . 25
11.2 Further assurances . . . . . . . . . . . . . 26
11.3 Processing. . . . . . . . . . . . .
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permits. . . . . . .
11.4 Other governmental 28
11.5 Financing of public facilities and/or
services. . . . . . . . . . . . . . 29
11.6 Utilities coordination. . . .
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fair dealing ..
11.7 Covenant of good faith and 30
12. PERMITTED DELAYS . . . . . . . . . . . . . . . . . 31
13. ESTOPPEL CERTIFICATES . . . . . . . . . . . . . . 31
14. RECORDATION BY CITY CLERK . . . . . . . . . . . . 32
15. DEFAULT . . . . . . . . . . . . . . . . . . . . . 32
15.1 Events of default . . . . . . . . . . . . . 32
15.2 Remedies . . . . . . . . . . . . . . . . . . 33
15.3 No waiver . . . . . . . . . . . . . . 33
15.4 Effect of termination . . . . . . . . . . . 33
16. ENFORCED DELAY AND EXTENSION OF
TIME OF PERFORMANCE . . . . . . . . . . . . . . . 34
17. APPLICABLE LAW . . . . . . . . . . . . . . . . . . 35
18. NO JOINT VENTURE OR PARTNERSHIP . . . . . . . . . 35
19. ADDRESSES FOR NOTICES . . . . . . . . . . . . . . 35
20. COVENANTS RUNNING WITA THE LAND . . . . . . . . . 36
21. EFFECT OF AGREEMENT . . . . . . . . . . . . . . . 37
22. CONSISTENCY OF FINDING . . . . . . . . . . . . . . 37
23. TERMS OF CONSTRUCTION . . . . . . . . . . . . . . 38
23.1 Severability. . . . . . . . . . . . . . 38
23.2 Entire agreement . . . . . . . . . . . . . . 38
23.3 Signature pages . . . . . . . . . . . . . . 38
23.4 Time . . . . . . . . . . . . . . . . . . . . 38
24. CONSENT OF OTHER PARTIES . . . . . . . . . . . . . 39
25. ASSIGNMENT AND NOTICE . . . . . . . . . . . . . . 39
26. ENCUMBRANCES AND RELEASES ON REAL PROPERTY. ... 40
26.1 Discretion to encumber . . .. .. 40
26.2 Entitlement to written notice of default .. 40
26.3 Property subject to pro rata claims. .... 41
26.4 Releases . . . . . . . . . . . . . . . . . . 41
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27. OPERATING MEMORANDA . . . . . . . . . . . . . . . 41
28. INSTITUTION OF LEGAL ACTION . . . . . . . . . . . 42
29. INSURANCE . . . . . . . . . . . . . . . . . . . . 43
29.1 Compensation insurance . . . . . . . . . . . 44
29.2 Fublic liability and property
~ damage insurance . . . . . . . . . . . . . . 44
EXHIBITS
A. Existing Alberhill Ranch Specific Plan
Land Use Plan
B. Golf Course
Draft Alternative Land Use Plan
C. Property Covered by Development Agreement
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DEVELOPMENT AGREEMENT BETWEEN
THE CITY OF LAKE ELSINORE
AND BRIGHTON ALBERHILL ASSOCIATES
FOR ALBERHILL RANCH DEVELOPMENT
1
PARTIES AND DATE
The parties to this Development Agreement ("Agreement") are
the City of Lake Elsinore, California, a municipal corporation
and political subdivision of the State of California ("City"),
and Brighton Alberhill Associates, a California general
partnership ("Developer"). The project to which this Agreement
applies is commonly known as "Alberhill Ranch." This Agreement
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is made and entered into on JG~H ~ , 1990.
It is the intent of City and Developer that Developer secure
the entitlement to 2,235 residential dwelling units pursuant to
approved Ci,ty of Lake Elsinore Specific Plan No. 89-2 in exchange
for payment of special fees in the amounts set forth in this
Agreement and compliance with all other terms and conditions of
this Agreement.
It is the further intent of City and Developer that
Developer have the opportunity to secure an additional
entitlement, through a Specific Plan amendment, to 500 additional
attached or detached residential dwelling units in exchange for
construction of a golf course/clubhouse facility, payment of
special fees in the amounts set forth in this Agreement and
compliance with all other terms and conditions of this Agreement.
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2. DEFINITIONS
2.1 "Agreement" means this Development Agreement made and
entered into by and between the City of Lake Elsinore and
Brighton Alberhill Associates in accordance with applicable state
law and local regulations.
2.2 "CEQA" means the California Environmental Quality Act
of 1970 (California Public Resources Code Section 21000 et sea.)
and the State CEQA Guidelines (California Code of Regulations,
Title 14, Section 15000 et se~c.).
2.3 "City" means the City of Lake Elsinore, including ic
' officials, officers, employees, commissions, committees and
boards.
2.4 "City Council" means the duly elected City Council of
the City of Lake Elsinore.
2.5 "Developer" means Brighton Alher~ill Associates,
including its successors and assigns.
2.6 "Development" means the improvement of the Property for
the purposes of constructing and otherwise effecting the
structures, improvements and facilities comprising the Project as
set forth in this Agreement, including but not limited to
grading, the construction of infrastructure and public facilities
related to the Project (whether located within or outside the
Property), the construction of structures and buildings and the
installation of landscaping.
2.7 "Development Approval(s)" means site specific plans,
maps, permits, and other entitlements to use of every kind or
nature approved or granted by City in connection with the
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development of the Property, including but not limited to general
plan amendments, specific plans and amendments thereto, EIRs,
negative declarations, categorical or statutory exemptions, site
~ plans, development plans, tentative and final subdivision tract
maps, vesting tentative maps, parcel maps, conditional and
special use permits, grading and building permits, and other
similar permits, maps, plans, authorizations, licenses and
entitlements.
2.8 "Effective Date" means the date this Agreement is
recorded with the Riverside County Recorder or the effective date
of the annexation of the Property to City, whichever occurs
later. The parties acknowledge that this Agreement shall not
become operative and enforceable until and unless such annexation
is completed.
2.9 "EIR" means an environmental imgact report prepared in
accordance with the provisions of CEQA.
2.10 "Existing Development Approvals" means those
development approvals in effect on the Effective Date of this
Agreement with respect to the Property, including but not limited
to Specific Plan No. 89-2 (as adopted or as may thereafter be
amended from time to time upon application by Developer),
annexation of the Property to City, this Agreement and general
plan and zoning provisions.
2.11 "Existing Land Use Ordinances" means all those land use
ordinances, resolutions, policies, rules and regulations adopted
by City in effect on the Effective Date of this Agreement,
including but not limited to those which govern the permitted
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uses of land, the density and intensity of use, subdivision
codes, fees and exactions, growth management, design improvement
and construction standards and specifications applicable to
development of the Property.
2.12 "LAFCO" means the Riverside County Local Agency
Formation Commission.
2.13 "Project" means the development project contemplated by
the Existing Development Approvals, including but not limited to
the land use plan encompassed by Specific Plan No. 89-2 with
respect 'to the Property, consisting of not less than 2,235 and
not more than 2,735 dwelling units (in accordance with Section 8
.below) and 2,722,500 square feet of commercial/industrial
buildings, including but not limited to all on-site and off-site
improvements, as such development project is further defined,
enhanced or modified pursuant to the provisions of this
Agreement.
2.14 "Property" means the real property which is the subject
of this Agreement and described in Section 4 below.
3. RECITALS
3.1 Legal authority. California Government Code Section
65864 et s~. authorize City to enter into development agreemer
in connection with the development of-real property within City.
This Agreement is made and entered into pursuant to those
provisions of state law.
3.2 Consistency findinq. By approving and executing this
Agreement, the City Council finds that its provisions are
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consistent with City's General Plan, Specific Plan No. 89-2, and
all other applicable Existing Land Use Ordinances of City.
3.3 Status of Proiect. Since November, 1987, various
property owners and developers have been in the process of
planning, financing and preparing for the Development commonly
known as the Alberhill Ranch, a large scale mixed use phased
Development of some 3705 dwellings on 1853 acres in the City of
Lake Elsinore more particularly described in City of Lake
Elsinore Specific Plan No. 89-2 and City of Lake Elsinore EIR No.
89-2. Additional land uses include commercial (neighborhood
commercial and highway and office commercial), schools, ooen
space and recreational uses,.including two 5-acre neighborhood
parks and one 30-acre community park. Exhibit "A" attached
hereto and incorporated herein by this reference shows the
intended land uses contemplated by the Specific Plan.
Constructinq the Alberhill Ranch project pursuant to City's
approved Specific Plan and providing the mitigation set forth in
EIR No. 89-2 will require major investment by Developer in public
facilities and onsite and offsite improvements. The Development
has been analyzed and reviewed by City as part of its process of
granting Development Approvals in light of the enacted land use
standards and policies of.City embodied in its Existing Land Use
Ordinances and pursuant to state law, including but not limited
to CEQA. City and Developer contemplate that there may be a
future amendment to Specific Plan No. 89-2 proposed by Developer,
which City encourages and supports, to establish an 18-hole
championship public golf course, together with related
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facilities, including but not limited to a championship
clubhouse, within the designated open space area. The precise
nature and scope of the golf course and clubhouse, including a
phasing schedule therefor, shall be detailed in any amendment to
the Specific Plan. (A draft concept plan for the golf course is
attached hereto as Exhibit "B" and incorporated herein by this
reference. City and Developer agree that this draft is for
illustrative purposes only, is preliminary in nature, may be
revised in whole or in part, and shall not be binding on either
party.) The golf course and related facilties, to be operated
Developer or its assignee, shall be open on a priority basis to
members of the.public, including meetings of civic.and community
organizations in the following manner: within the fourth quarter
of each calendar year, City and the golf course/clubhouse
operator shall meet and confer to establish a mutually agreeable
priority use schedule for use of civic and community activities
to occur during the following calendar year. Meeting room
facilities shall be made available at no fee to the City Council,
City Manager's office and City commissions, boards and committees
not less than two (2) days per calendar month. Residents of Lake
Elsinore and municipal employees shall be granted a 10% discount
on green fees. City shall be entitled to periodically review t
public nature of the golf course operation, including the
schedules for use of clubhouse facilities. Developer shall use
its best efforts to evaluate and apply for a golf
course/clubhouse Specific Plan amendment as discussed above and,
in the event the amendment is submitted and approved, City agrees
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to permit the construction of 500 additional attached or detached
dwelling units on the Property (in excess of the 2,235 dwelling
units herein provided) at such locations as are indicated on the
Specific Plan amendment. In order to accomplish this golf
course/clubhouse Specific Plan amendment, the parties recognize
that a corresponding reduction in the amount of permanent passive
open space will be necessary. The parties acknowledge and aqree
that the establishment of the above-discussed golf course and
civic and community use of the clubhouse meeting facilities shall
be deemed to satisfy any and all deficiencies in required park
and recreational lands and/or in-l~eu fees pursuant to Specific
..P1an.No..89-2. Shared civic use of clubhouse facility by City
shall run in perpetuity as consideration for in-lieu fee offset.
3.4 Annexation to Citv. On August 8, 1989, at a duly
noticed public hearing, the City Council adopted Resolution No.
89-35, which granted its consent to the initiation of annexation
proceedings pursuant to the Cortese-Knox Local Government
Reorganization Act of 1985 (Government Code Section 56000 et
s~.) for the real property encompassed by Specific Plan No. 89-
2. A landowner-initiated annexation petition was thereafter
filed with LAFCO. If the annexation of the Property is approved
by LAFCO, the matter will be submitted to the City for final
approval pursuant to Government Code Section 57002(b) or, if
notice and hearing are required, the matter will be set for
hearing by City at the earliest possible scheduled time
following LAFCO approval.
3.5 Entitlements and aoorovals
In contemplation of the
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annexation of the Alberhill Ranch property, applications for
various Development Approvals have been submitted to City in
connection with the Development of the Alberhill Ranch project,
including but not limited to the following:
(1) Certification oE a Final EIR on the Alberhill
Ranch project.
(2) Specific Plan No. 89-2 approval (which shall
constitute the applicable zoning for the Alberhill
Ranch project).
(3) General Plan amendment approval.
(4) Preannexation zoning approval (consistent with
Specific Plan No. 89-2).
(5) Approval of this Agreement (which includes a
finding of consistency with the General Plan).
(6) Annexation of the project site to City.
It is contemplated that as of the Effective Date of this
Agreement, all of the above Development Approvals will have been
granted or approved by City.
3.6 Consideration. City has determined that entry into
this Agreement will further,City's goals and objectives of
becoming a major retail center and recreation and resort-oriented
community in the region. This Agreement will also further the
goals and objectives of City's land use planning policies by
eliminating uncertainty in planning for and securing orderly
Development of the Project so that adequate long-term plans
regarding the provision of necessary infrastructure for existing
and future City residents can be developed and implemented.
Further, the maximum effective utilization of resources within
City will be pursued at the least economic cost to its citizens.
City acknowledges that the Project is and shall be considered a
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single, integrated development project, that each phase of the
Project is dependent upon the completion and occupancy of each
other phase, and.that the viability of each phase of the Project
~ is and shall be dependent upon the completion and occupancy of
each other phase and the full performance of this Agreement. The
benefits conferred by Developer herein will facilitate the
installation of certain public improvements and will help
increase traffic capacity for the road system of City, both of
which will promote the health, safety and general welfare of
existing and future City residents. In exchange for these
benefits to City and its residents, Developer wishes to receive
the assurances permitted by state law that Developer may proceed
to develop the Project in accordance with Existing Land Use
Ordinances, and its existing financial and contractual
commitments, and at a rate of Development of its choosing,
subject to the terms and conditions contained in this Agreement.
The assurances provided by City and Developer to each other
herein are provided pursuant to and as contemplated by statute,
bargained and in consideration for the undertakings of the
parties, and are intended to be and have been relied upon by the
parties to their detriment.
- City and Developer agree that the following amenities and
improvements.being provided by Developer as part of the planning,
financing and construction of the Alberhill Ranch project will
result in substantial general public benefit:
a. As part of the Development of the Alberhill Ranch
project, Developer will provide a substantial amount of permanent
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passive and active open space, including the golf course and
related facilities referenced in Section 3.3 above, in accordance
with the applicable provisions of the Specific Plan. Develooer
agrees to provide as a turn key project the combined 15-acre
elementary school site/park for park purposes only in conjunction
with the first phase of the Project, and operational concurrent
with opening of project's Phase I model complex. The school site
portion, consisting of approximately 10 acres, shall be graded,
hydroseeded and irrigated by Developer, who shall also install
soccer and baseba~l fields in accordance with City standards f
such facilities. City acknowledges that Developer intends to
<convey the school site to the appropriate school district, and
City further acknowledges that the future availability of the
school site for City use after the conveyance shall be subject to
mutual agreement of City and the school-district.
b. The Development of the commercial portion of the
Alberhill Ranch project will produce new jobs and a positive
fiscal impact. The commencement of commercial development is
conditioned on the availability of utility services and the
assurances that the Project may proceed to its conclusion
pursuant to the terms and conditions of this Agreement.
c. Developer will design and construct a waste water
treatment plant with capacity greater than that required just ror '
the Alberhill Ranch project.
d. Developer will design and construct a water
distribution system including storage capacity in excess oF that
required just for the Alberhill Ranch project.
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e. Developer will design and construct improvements to the
circulation system located within the boundaries of Specific Plan ,
No. 89-2, including half-width improvements for Lake Street,
Nichols Road and Coal Road. These improvements will provide
street capacity in excess of needs generated by the Alberhill
Ranch project. The parties acknowledge that additional in-tract
and off-tract improvements and associated fees may be required in
connection with the subdivision review process occurring in the
future; provided, however, such improvements and fees must be
expressly authorized by state and local laws and must bear a
direct and reasonable relationship in fact to needs, impacts and
burdens:proximately created by the proposed subdivision.
f. Within one (1) month after the Effective Date of this
Agreement, Developer agrees to pay the sum of $100,000.00 to City
for the purpose of preparing a report to~study the needs
assessment, economic feasibility and evaluation of potential
sites for a possible mixed use cultural/performing arts center,
including enclosed theater and open air amphitheater facilities.
in the event the actual cost of the report does not exceed
$100,000.00, City shall refund the remaining difference to
Developer. The consideration to Developer for the provision
of these special amenities which are not otherwise legally
required of Developer is the consummation of this Agreement by
City.
g. In consideration for City's entering into this
Agreement and the uses permitted herein, Developer agrees to
support the annexation to City and further agrees that it will
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comply with all the conditions of approval during the time this
Agreement is in full force and effect. The parties acknowledge
that this Agreement by City is a material consideration for
Developer's acceptance of the conditions of approval as
specifically set forth herein.
h. Developer shall cooperate to the extent feasible to
work with City and the Lake Elsinore Foundation to keep the point
of sales tax within the city.
i. Developer shall pay to City substantial Development
Agreement Fees, as set forth in Section 9.5(1) below for
municipal capital facilities and impr:ovements and municipal
public services.
4. PROPERTY COVERED
The portion of the Alberhill Ranch property covered by this
Agreement is described in Exhibit "C" attached hereto and
incorporated herein by this reference.
5. INTEREST OF CONTRACTING PARTY
Developer has a legal and eguitable interest in the real
property subject to this Agreement and described above in Section
4.
6. DURATION OF AGREEMENT
6.1 Schedulina. Pursuant to Government Code Section
65865.2, the duration of this Agreement shall be for fifteen
(15) calendar years from and after the effective date hereof.
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Construction of the Project covered by this Agreement-will be
diligently undertaken following receipt of requisite Development
Approvals from City. City and Developer acknowledge that
Developer cannot at this time accurately predict the time
schedule within which the Project will be developed, except that
it will be completed within the aPoresaid fifteen (15) year
period. Such decisions with respect to the rate of Development
of the Project will depend upon a number of circumstances not
within the control of Developer, including market factors,
demand, the state of the economy, and other matters. Therefore,
so long as the Project is constructed in a manner consistent with
City's_Existing Land.Use Ordinances and Existing Development
Approvals and this Agreement, Developer shall have the right to
construct the Project at the rate and in the sequence deemed
appropriate by Developer within the exer~ise of its sound
business judgment; provided, however, that Developer shall have
the vested right to construct a minimum of 745 dwelling units
(the "Residential Construction Minimum") and 907,500 square feet
of commercial/industrial buildings (the "Commercial/Industrial
Construction Minimum") per year on the Property, subject to
increase as hereinafter set forth. The Residential Construction
Minimum and the Commercial/Industrial Construction Minimum shall
be increased each year by the number of dwelling units or amount
of square feet, respectively, equal to any difference between the
Residential Construction Minimum and the Commercial/Industrial
Construction Minimum for previous years during the term oE this
Agreement, less the actual number of dwelling units or square
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footage of Development constructed in such previous years. It is
Developer's present reasonable expectation that Development of
the Project will be completed within the term of this Agreement.
For purposes of this Agreement, completion of the Project shall
mean the date on which a certificate of occupancy or comparable
instrument is issued for the last improvement or structure
constructed pursuant to this Agreement. Following the expiration
of the aPoresaid fifteen (15) year term, this Agreement shall be
deemed terminated and of no further force and effect; provided,
however, that such termination shall not affect any right of
Developer arising from City entitlements for the Project which
were approved prior to, concurrently with or subsequent to the
approval of this Agreement.
6.2 Periodic review. City shall, in accordance with .
applicable state law, review this Agreement at least once every
twelve (12) months from and after the Effective Date hereof.
During each such periodic review, City and Developer shall have
the duty to demor:strate their good faith compliance with the
terms and conditions of this Agreement. Soth parties agree to
furnish such evidence of good faith compliance as may be
reasonably necessary or required. City's failure to review at
least annually Developer's compliance with this Agreement shal]
not constitute or be asserted by either party as a breach of the
other party.
6.3 Certification of completion. Promptly upon completion
of the Project, City shall provide Developer with an instrument
so certifying. This certification shall be a conclusive
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f
•~ determination that the obligation of Developer under this
Agreement has been met. The certification shall be in such form
as will enable it to be recorded in the Official Records of
~ Riverside County, California.
7. AMENDMENTS
Except as otherwise provided herein, this Agreement may be
amended in whole or in part only by mutual written consent of the I
i,
parties and in the manner provided by Government Code Section ,
65868. Any minor deviation from this Agreement, as discussed ~
below, does not require an amendment to this Agreement. I
Upon the written,request of Developer for a minor amendment
or modification to Specific Plan No. 89-2, including but not !
I
limited to the location of buildings, streets and roadways and ;
other physical facilities, or the configuration of the parcels, ~'
lots or development areas set forth in the Specific Plan or the
subdivision maps, City's Community Development Director or
his/her designee shall determine whether the requested amendment
or modification is consistent with this Agreement, the City's
General Plan, Specific Plan No. 89-2 and applicable provisions of
City's zoning and subdivision ordinances in effect as o~ the
Effective Date of this Agreement. For purposes of this
Agreement, the determination whether such amendment or
modification is minor shall depend upon whether the amendment or
modification is minor in the context of the overall Alberhill
Ranch project. If the Community Development Director or his/her
designee finds that the proposed amendment is both minor and
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consistent with this agreement, City's General Plan, Specific
Plan No. 89-2, and applicable provisions of City's zoning and
subdivision ordinances, the Community Development Director or
his/her designee may approve the proposed amendment without
notice and public hearing. For purposes of this Agreement and
notwithstanding any City ordinance or resolution to the contrary,
lot line adjustments, or building construction or remodeling
projects confined within the exterior perimeter of the building
footprints shall be deemed minor amendments or modifications.
Such amendments or modifications approved pursuant to this
section shall not constitute su~sequent discretionary approvals
subject to further CEQA review or determination. In the event
that Developer's request for a minor amendment or modification is
denied by the Community Development Director or his/her designee,
Developer shall have the right to appezl such determination to
the Planning Commission, and thereafter to the City Council if
necessary, in accordance with the City's applicable appeal
procedures.
Upon the approval of any minor amendment or modification as
provided above in this section, City shall provide -Developer with
an instrument so certifying. The certification shall be in such
form as will enable it to be recorded in the Official Records o
Riverside County, California.
Except as provided above in this section, the amendment or
modification of Specific Plan No. 89-2 shall be subject to the
applicable substantive and procedural provisions of City's
zoning, subdivision and other applicable land use ordinances in
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effect (1) on the date of the request for the amendment or
modification as to changes relating to the permitted uses of the
Property and the density and intensity of use, and (2) on the
Effective Date of this Agreement as to all other amendments or
modifications.
8. PERMITTED USES OF PROPERTY
The permitted uses of the Property, the density and
intensity of use, the maximum height, bulk and size of the
proposed buildings on the property, the design standards for such '
construction, and provisions for reservation or dedication of
land for public purposes are all set forth in Specific P1an No. '
89-2.and are incorporated.herein by this reference. They are the i
i
uses of the Property covered by this Agreement 4dhich are i
specifically permitted by this Agreement and City is bound to ~'
permit those uses on the Property. Citp-agrees to grant and I
implement Development Approvals for the Project and to grant
other land use and construction approvals, subject to the
applicable review and conditioning process, including but not
limited to grading permits, building permits, subdivision maps,
lot line adjustments, use permits, variances and certificates of
occupancy reasonably necessary or desirable to accomplish the
goals, objectives, policies and plans shown and described in the
Specific Plan No. 89-2 and this Agreement. It is expressly
understood that Developer shall have a vested right and be
entitled to construct 2,235 dwelling units and an additional 500
dwelling units in the event of a Specific Plan amendment for a
golf course as referenced above in Section 3.3, and approximately
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47 acres of Neighborhood Commercial and Highway and Office
Commercial uses consisting of 2,722,500 square feet of buildings.
Multi-family uses may overlay the commercial zones, and
commercial uses may overlay the multi-family zones, but in no
event shall the total number of dwelling units exceed 2,735.
Multi-family density may be up to thirty (30) dwelling units per
acre and be constructed up to three (3) stories subject to design
review, in accordance with the criteria set forth in the Specific
Plan or as may be subsequently amended.
Developer will provide its fair share of affordable housin~
within the multi-family zones of the Specific Plan. If area
within the.multi-family zones prove deficient, areas with
Commercial zones shall be utilized. The total number of
affordable units in the low and very low income ranges, as
determined by the County of Riverside me~ian average, shall be
equal to 5°s of the total number of residential dwelling units
actually constructed by Developer. The affordable mix between
low and very low income ranges shall be based on the current
Housing Element standards. The affordable housing shall begin
construction upon the completion of 500 of the Specific Plan's
total units and shall be completed upon the completion oE 75% of
the Specific Plan's total units based on the estimated build-ou
City will assist Developer in providing its fair share of
affordable housing by providing access to available redevelopment
set aside funds. Other economic incentives such as bond
assistance, reduction of development standards, etc., may also be
offered at the discretion of City.
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Developer will be responsible
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~ for implementing changes that from time to time may occur to
City's Housing Element, where such changes occur on a city-wide
equitable basis. The affordable units shall remain in the
affordable categories as long as City maintains a regional
affordable housing requirement.
City further agrees to grant and implement subsequent
Development Approvals for the Project related to building
construction or remodeling confined within the exterior perimeter
of the building footprints identified on Specific Plan No. 89-2.
Any such building construction or remodeling shall be subject to
the maximum height and exterior architectural design
specifications set forth in Specific Plan No. 89-2.
The aforementioned subsequent discretionary approvals shall
be granted and approved by City on a timely basis, provided
applications for such approvals are submitted to City during the
term of this Agreement. Developer's failure to develop the
Project shall not result in any liability for Developer except as
is provided in this Agreement.
Notwithstanding any provision herein to the contrary, City
agrees that Developer shall have the right to co.*nmence grading
the Property at any time after the effective date of this
Agreement (subject to securing a grading permit), and that
permits will not be denied based on season or date provided that
Developer agrees to comply with all required precautions, to use
due care in grading activities and to take reasonable steps to
prevent erosion, slippage or dangerous runoff conditions.
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9. VESTING OF RULES, REGULATIONS AND OFFICIAL POLICIES
9.1 Effecti:~e standards. Except as otherwise provided in
this Agreement, the written rules, regulations, official policies
and conditions of approval (as adopted by ordinance, resolution,
minute order or other such official method) governing permitted
uses for the Project, development, density and intensity of use,
design, improvement, construction and building standards,
occupancy and specifications applicable to the Project, and all
on-site and off-site improvements and appurtenances in connecti~n
therewith, including without limitation the conditions of
approval shall be those rules, regulations and official policies
in force upon the Effective Date of this Agreement which are not
inconsistent with Specific Plan No. 89-2.
9.2 No conflicting enactments. Neither City nor any agency
of City shall enact an ordinance, resolution or other measure
which relates to the rate, timing or sequencing of the
Development or to the construction of the Project on all or any
part of the Property, including but not limited to the
development standards therefor, which is in conflict with this
Agreement.
9.3 Initiatives and moratoria. In the event an ordinance,
resolution or other measure is enacted, whether by action of
City, by initiative, referendum or otherwise which relates to the
rate, timing or sequencing of the Development or construction of
the Project on all or any part of the Property, City agrees that
such ordinance, resolution or other measure shall not apply to
the Project, the Property, or the Existing Development Approvals
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to the extent that such ordinance, resolution or other measure is
in conflict with this Agreement. Without limiting the foregoing,
City agrees that no moratorium or other limitation (whether or
not relating to the rate, timing or sequencing of Development)
affecting subdivision maps, building permits or other
entitlements to use which are approved or to be approved, issued ~
I
or granted within City, or portions of City, shall apply to the !
i
Project, the Property or the Existing Development Approvals to '
the extent it is in conflict with this Agreement. To the maximum
extent permitted by law, City agrees to use its best efforts to
prevent any such ordinance, measure, moratorium or other '
limitation.from.invalidating or prevailing over all or any part ,
i
of this Agreement, and City agrees to cooperate with Developer in
a reasonable manner in order to keep this Agreement in full force
and effect. City shall not support or adopt any initiative,
referendum, moratorium, ordinance, policy or take any other
action (including but not limited to the delay or stoppage of the
development, processing or construction of the proposed project)
which would violate the intent of this Agreement. Developer
reserves the right to challenge any such ordinance or other
measure in a court of law should it become necessary to protect
the development rights vested in the Project and the Property
pursuant to this Agreement.
9.4 SubseQUent chanqes in state or federal laws. This
Agreement shall not preclude the application to the Project of
any state or federal laws or regulations enacted after the
Effective Date of this Agreement cahich prevent or preclude
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compliance with one or more provisions of this Agreement pursuant
to Government Code Section 65869.5. In the event such changes in
state or federal law prevent or preclude compliance with one or
more provisions of this Agreement, City and Developer shall take
such action as may be required pursuant to this Section 9 and
Section 11 of this Agreement.
9,5 Fees, condi*_ions and dedications. Developer shall make
only those dedications and pay only those fees expressly
prescribed in this Agreement, the Existing Development Approvals,
and subsequent Development Approvals, provided that such
dedications and fees are imposed on a city-wide basis.
(1) Filina and processinq fees. The filing and
processing fees for all Development Approvals for the Project
charged by City shall be those fees which are in force and effect
on a city-wide basis at such time building permits are issued.
In addition, Developer agrees to pay a special fee ("Development
Agreement Fee") for each residential dwelling unit at the time of
building permit issuance for municipal capital facilities and
improvements and municipal public services, including but not
limited to a civic center, police stations, fire stations,
libraries, cultural facilities, senior citizen facilities,
recreational facilities and corporate yards, in the following
manner:
(a) For the Project as approved by Specific Plan No.
89-2 and reflected on Exhibit "C" attacned hereto, Developer
agrees to pay a fee of $3,000 per unit at the time of building
permit issuance during the period from the Effective Date of this
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Agreement to the fifth anniversary date thereof; a fee of $4,000
per unit at the time of building permit issuance during the
period from the fifth anniversary date of the Effective Date of
this Agreement to the tenth anniversary date thereof; and a fee
of $5,000 per unit at the time of building permit issuance during
the period from the tenth anniversary date of the Effective Date
of this Agreement ta the expiration date hereof.
(b) For the Project as may be amended by a future
amendment to Specific Plan No. 89-2 providing for a golf course
and related facilities as described in Section 3.3 above,
Developer agrees to pay a fee of $1,000 per unit at the time of
.building permit issuance during the term of this Agreement;
provided, however, that at least 9 holes of the golf course are
operational and open to public play by the fifth anniversary date
of the Effective Date of this Agreement and that the remaining 9
holes and clubhouse are operational and open to public play/use
by the seventh anniversary date of the Effective Date of this
Agreement. If either (i) 9 holes of the golf course are not
operational and open to public play by the fifth anniversary date
of the Effective Date of this Agreement or (ii) the remaining 9
holes of the golf course and the clubhouse are not operational
and open to public play/use by the seventh anniversary date of
the Effective Date of this Agreement, then the fee shall be
$2,000 per unit at the time of building permit issuance Eor each
permit not yet issued Por the remaining term of the Agreement
following the fifth or seventh anniversary dates, respectively,
provided that the entire 18-hole golf course and clubhouse are
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e
operational and open to public play/use by the tenth anniversary
date of the Effective Date of this Agreement. If the entire 18-
hole golf course and clubhouse are not operational and open to
public play/use by the tenth anniversary date of the Effective
Date of this Agreement, then the fee shall be $3,000 per unit at
the time of building permit issuance for each such permit not yet '
issued for the remaining term of the Agreement.
City agrees to provide Developer with a periodic accounting,
or upon reasonable request by Developer, set~ing forth the amount ,
of Development Agreement Fees levied and collected by City and
the specific purposes and/or projects for which such fees are
expended. City agrees in good faith to use its best efforts to
locate certain new municipal capital facilities and improvements
on the Property in consultation with and with the consent of
Developer.
(2) Taxina power. Nothing in this Agreement shall
prohibit the adoption and application of a special tax approved
by City's voters, provided that such tax is imposed on a city-
wide basis.
(3) Commercial rent control or office condominium
conversion. During the term of this Agreement, City shall not
impose or enact any ordinance, regulation, fee or condition wh h~
directly or indirectly controls or otherwise restricts market '
forces on commercial or residential rents charged within the
~
Property, or applies directly or indirectly to the conversion of
office or residential rental units to condominiums within the
Property.
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(4) Future tentative maps, specific plan amendments
and develoAment impact fees. Developer will be subject to
conditions as a result of tentative map review or specific plan
~ amendments and to any developmelt impact fees that may be adopted
by City on a city-wide basis.
9.6 Life of subdivision maos. Pursuant to Government Code
Section 66452.6(a), the term of any subdivision maps approved for
the Project shall be extended for the term of this Agreement.
10. EFFECT OF AGREEMENT WHEN RULES CNANGE
City's rules and regulations governing permitted uses of the
;Property,.its.density ot development, and its design, improvement
and construction standards are those rules and regulation in
force at the Effective Date of this Agreement. However, this
Agreement does not prevent City in subsequent actions generally
applicable to the Property and other similarly situated real
property within City from enacting and imposing changes in City's
uniform building, plumbing, mechanical, electrical and fire
codes, providing said changes are (1) necessary to protect the
public health and safety and (2) not in conflict with the rights
conferred by this Agreement.
11. COOPERATION AND COVENANT OF.FURTHER ASSURANCES
11.1 Third oartp actions. Dev2loper and City shall
cooperate in defending any action or proceeding instituted by any
third party challenging the validity of any provision of this
Agreement or any action taken or decision made hereunder.
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Developer agrees to assume the lead role in the defense of any
such action or proceeding so as to minimize litigation expenses
incurred by City. In addition, any court action or proceeding
~ brought by any third party to challenge this Agreement or any
other permit or approval required from City or any other
governmental entity for Development or construction of all or any
portion of the Project covered by this Agreement shall constitute
a permitted delay under Section 12. Notwithstanding the
foregoing, the filing of any third party litigation against City
and/or Developer relating to this Agreement or any provision
thereof shall not be a reason to delay or stop the Development,
processing or.construction of the Project (including but not
limited to the issuance of building permits or certificates of
occupancy) uniess the third party obtains a court order
preventing the activity. City will not stipulate to the issuance
of any such court order.
11.2 Further assurances. Each party covenants on behalf oP
itself and its successors and assigns to take all actions and do
all things, and to execute with acknowledgments or affidavits if
required any and all documents and writings that may be necessary
or proper to ac~ieve the purposes and objective of this
Agreement. Each party shall take.all necessary measures to see
that the provisions of this Agreement are carried out in full.
11.3 Processina. If necessary or required, upon
satisfactory completion by Developer of all required preliminary
actions and payments of appropriate filing and processing fees,
if any, City shall use its best efforts to promptly commence and
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diligently proceed to complete all steps required or r.ecessary
for the implementation of this Agreement and the Development by
Developer of the Project in accordance with the Existing
" Development Approvals, including but not limited to the
following:
(1) The City Council shall instruct City's Planning
Department, City's Planning Co.~unission and all other relevant
agencies of City which are affected or may be affected use their
best efforts to diligently process any and all Development
Approvals necessary for Developer to obtain all necessary permits
to begin and complete construction of the Project.
(2) City.shall use its best efforts to schedule,
convene and conclude all required public hearings in a diligent
manner consistent with applicable laws and regulations in force
as of the Effective Date of this Agreement.
(3) City shall use its best efforts to process and
approve in a diligent manner, all maps, plans, land use permits,
building plans and specifications and other applications for
Development Approvals relating to the Development of the Project,
filed by Developer, including but not limited to all General Plan
and Specific Plan amendments, zoning, final development plans,
tentative maps, parcel maps, final maps, resubdivisions,
amendments to maps, subdivision improvement agreements, lot line
adjustments, encroachments, grading and building permits,
variances, use permits and related matters as necessary for the
completion of the development of all lots and parcels comprising
the Project, to the extent permitted by law.
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(4) City will use its best efforts to maximize the
amount of acreage which is released for grading and allocated to
City pursuant to the Riverside County Short-Term Habitat
Conservation Plan for the Stephens Kangaroo Rat and will take
such steps as may be necessary or appropriate from time to time
to secure such maximum allocation.
(5) Developer agrees to process such ~ermits as may be'
necessary for its golf course plan with the U.S. Army Corps of
Engineers, U.S. Fish and Wildlife Service and California
Department of Fish and Game in an expeditious manner and to
report monthly to City on the progress of same.
Developer will use its best efforts to timely provide
City with all documents, applications, plans and other
information necessary for City to carry out its obligations ;
hereunder and cause Developer's planners, engineers and all other'
consultants to submit in a timely manner all required materials
and documents therefor. It is the express intent of Developer
and City to cooperate and diligently work to implement any
General Plan amendment, zoning, final Development plan and/or
other land use, grading or building permits or approvals which
are necessary or desirable in connection with the development of
the Project in substantial conformance with this Agreement.
11.4 Other vovernmental permits. In addition, DevelopeL
shall apply in a timely manner for such other permits and
approvals as are required by other governmental agencies having ~
jurisdiction over the Project in connection with the development
of, or provision of services to, the Project. City shall i
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cooperate with and use its best efforts to assist Developer in
coordinating the implementation of the Project with such other
governmental agencies and in obtaining permits, approvals and
~ services from those agencies as may be necessary to implement the
Project.
11.5. Financinq of public facilities and/or services. City
and Developer shall in good faith use their best efforts to
establish one or more community facilities districts (pursuant to
the Mello-Roos Community Facilities Act of 1982 as set forth in
Government Code Section 53311 et se~c.) and such other assessment,
improvement or maintenance districts, as may be appropriate, for
the purpose of funding the planning, design, construction and
maintenance of publio facilities, including related fees
(including those referenced above in Section 9.5) and the
acquisition of land therefor, and/or the provision of public
services for the Project. The parties expect that bonds,
assessments, liens or other such financing devices would be
issued or levied to provide sufficient funds for the above-
mentioned purpose. City and Developer agree that the proportion
of assessed real property value allocated to real property taxes
and aggregate debt service may go up to but shall not exceed two
percent (2s), and City shall take no action to limit such
allocation to less than two percent (2%). City acknowledges
that completion of proceedings to establish one or more public
financing districts as discussed above is critical to provide the
parties with security for performance by Developer of its
obligation to commence and complete construction of major
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infrastructure.
To the extent that the infrastructure required
by City to be constructed by Developer is in excess of the needs
and demands of the Project and will be utilized by future
developments, City agrees to use its best efforts to cause such
future developments to contribute to the costs of the
infrastructure (including but not limited to the formation of an
assessment district) and, from such funds, cause appropriate
reimbursement payment(s), including interest at the legal rate,
to be made to Developer after first reimbursing the public
financing district to the extent district funds were expended '
construct the infrastructure. Developer understands that City
has f.ormed a joint powers authority under the Marks-Roos Local
Bond Pooling Act of 1985 known as the "Lake Elsinore Public
Financing Authority" and that City policy requires all public
financing by City to be funded through said Authority.
11.6 Utilities coordination. City shall use its best
efforts to assist Developer in obtaining all electrical, gas,
telephone and other necessary utility connections required by the
Project. Within a reasonable time after request therefor by
Developer, City shall approve all connection and access points
for such utilities if in compliance with all applicable
ordinances,.rules and regulations.
11.7 Covenant of aood faith and fair dealinq. Except as
may be required by law, neither party shall do anything which
shall have the effect of harming or injuring the right of the
other party to receive the specified and described benefits of
this Agreement; each party shall refrain from doing anything
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~ which would render its performance under this Agreement
- impossible or impractical; and each party shall do everything
which this agreement describes that such party shall do.
12. PERMITTED DELAYS
Developer shall be excused from performance of its
obligations hereunder during any period of delay caused by acts
of God or civil commotion; riots, strikes, picketing, or other
Iabor disputes; unavoidable shortage of materials or supplies;
damage to work in progress by reason of fire, flood, earthqua;ce
or other casualty; litigation; initiatives or referenda;
.,moratoria; acts or neglect of City; or unanticipated restrictions ~
imposed or mandated by other governmental entities. Each party
shall promptly notify the other party of any delay hereunder as
soon as possible after the same has been ascertained, and the
term of this Agreement shall be extended by the period of any
such delay.
13. ESTOPPEL CERTIFICATES
Either party may at any time, and from time to time, deliver
written notice to the other party requesting the other party
certify in writing that to the knowledge of the certifying party:
(1) this Agreement is in full force and effect and is a binding
obligation of the parties; (2) this Agreement has not been
amended or modified, and, if so amended or modifi'ed, to identify
the relevant documents; and (3) no default in the performance of
the requesting party's obligations under this Agreement exists
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or, if in default, the nature of any default. A party receiving
a request hereunder shall execute and return the certificate
within thirty (30) days following the receipt thereof.
14. RECORDATION SY CITY CLERK
Pursuant to Government Code Section 65868.5, within ten (10)
days of City's execution of this Agreement the City Clerk shall
record a copy with the Riverside County Recorder. Therearter,
the burdens of this Agreement shall be binding upon, and the
benef,its of this Agreement shall inure to, all successors in
interest to-the parties to this Agreement.
15. DEFAULT
15.1 Events of default. Subject to any written extension
of time by mutual consent of the parties, and subject to the
provisions of Section 12 regarding permitted delays, the failure
of either party to perform any matsrial term or provision of this
Agreement sha11 constitute default if such defaulting party does
not cure such failure within thirty (30) days following written
notice of default from the other party; provided, however, that
if the nature of the default is such that it cannot be cured
within thirty (30) days, the commencement of a cure within sucr
period and the diligent prosecution to completion of the cure
shall be deemed to be a cure within sucn period. Any notice of
default given hereunder shall specify in detail the nature of the
alleged default and the manner in which such default may be
satisfactorily cured in accordance with the terms and conditions
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of this Agreement. During the time periods herein specified fcr
cure of a failure of performance, the party charged with such
failure of performance shall not be considered to be in default
~ for purposes of termination of this Agreement, or for purposes of
institution of legal proceedings with respect thereto, or for
purposes of issuance of any building or grading permit with
- respect to the Project (provided that failure of performance is
unrelated to the entitlement to obtain such permit).
15.2 Remedies. Upon the occurrenc~ of default under this
section and the expiration of any applicable cure period, the
non-defaulting party shall have such rights and remedies against
the.defaulting party as it may have at law or in equity,
including but not limited to the right to terminate this
Agreement.
15.3 No waiver. Failure by a party to insist upon the
strict performance of any of the provisions of this Agreement by
the other party shall not constitute waiver of such party's right
to demand strict compliance by such other party in the future.
All waivers must be in writing to be effective or binding upon
the waiving party, and no waiver shall be implied from any
omission by a party to•take any action with respect to such
default. No express written waiver of any default shall affect
any other default, or cover any other,period of time except that
specified in such express waiver.
15.4 Effect of termination. Termination of this Agreement
by one party due to the other party's default shall not affect
any right or duty emanating from City entitlements or approvals
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on the Project, but the rights, duties and obligations of the
parties hereunder shall otherwise cease as of the date of such
termination. If City terminates this Agreement because of
Developer's default, City shall retain any and all benefits I
including money or land received by City hereunder. If Developer
terminates this Agreement because of City's default, Developer
shall be entitled to a return or a refund of all unused benetits
and exactions paid, given or dedicated to City pursuant to this
Agreement.
16. ENFORCED DELAY AND EXTENSION OF TIME OF PERFORMANCE
In addition to specific provisions of this Agreement,
performance by either party hereunder shall not be deemed to be
in default where delays or defaults are due to war, insurrection, '
strikes, walk-outs, riots, floods, earthquakes, fires, I
casualties, acts of God, litigation, referenda, initiatives,
moratoria, governmental restrictions imposed or mandated by other ',
governmental entities, enactment of conflicting City, county,
state or federal laws or regulations, judicial decisions, or
similar basis for excused performance which is not within the
reasonable control of the party to be excused. If written notice
of such delay is given to either party within thirty (30) days f
the commencement of such delay, an extension of time for such
cause will be granted in writing for the period of the enforced
delay, or longer as may be mutually agreed upon.
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17. APPLICABLE LAW
This Agreement shall be construed and enforced in accordance
with the laws of the State of California.
18. NO JOINT VENTL'RE OR PARTNERSHIP
City and Developer hereby renounce the existence of any form
„ of joint venture or partnership between City and Developer, and
expressly agree that nothing contained herein or in any document
executed in connection herewith shall be construed as making City
and Developer joint venturers or partners. It is understood that
the contracbual relationship between City and Developer is such
that Developer.is an independent contractor and not an agent of
City. Furthermore, this Agreement is not intended, or shall it
be construed, to create any tnird party beneficiary rights in any
person who is not a party to this Agreement.
19. ADDRESSES FOR NOTICES
Any notice sent to either party under this Agreement shall
be in writing and shall be given by delivering the same to such
party in person or by sending the same by registered mail, return
receipt, with postage prepaid, to the following addresses:
City of Lake Elsinore
130 South Main Street
Lake Elsinore, CA 92330
Attn: City Manager
Brighton Alberhill Associates
505 North Tustin Avenue
Suite 250
Santa Ana, CA 92705
Attn: Mr. Todd Cunningham
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20. COVENANTS RUNNING WITH THE LAND
- All of the terms, provisions, covenants and obligations
contained in this Agreement shall be binding upon the parties and
their respective successors and assigns, and all other persons or
entities acquiring all or any portion of the Property, and shall
inure to the benefit of such parties and their respective
successors and assigns. All the provisions of this Agreement
shall be enforceable as equitable servitudes and constitute
covenants running witr. the land pursuant to applicable law,
including but not limited to California Civil Code Section`146k
Each covenant to do or refrain from doing some act on the
, property covered by.this Agreement is for the benefit of such
property and is a burden upon such property, runs with such
property and is binding upon each party and each successive owner
during its ownership of such property or any portion thereof, and
shall b'enefit each party and its property hereunder, and each
other party succeeding to an interest in such property.
Notwithstanding the foregoing, upon the sale or lease for more
than one year of a dwelling unit or office or commercial or
industrial space by Developer to a member of the public, but not
upon the bulk sale thereof to any person or entity for resale to
the public, such residential unit or office, commercial or
industrial space shall be automatically released from the terms,
provisions, covenants and obligations of this Agreement without
the necessity of executing or recording any specific instrument
of release.
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21. EFFECT OF AGREEMENT
City and Developer agree that unless this Agreemerit is
amended or terminated pursuant to its provisions, this Agreement
`shall be enforceable by any party hereto notwithstanding any
change hereafter enacted or adopted in any General Plan
amendment, Specific Plan, zoning ordinance, subdivi~ion
ordinance, or any other land use ordinances or building
ordinances, resolutions or other rules, regulations or policies
of City which change, alter or amend the rules, regulations and
policies applicable to the Development of the Project as of the
Effective Date of this Agreement as provided by Government Code
Section 65866. This Agreement shall not prevent the City from
taking subsequent actions applicable to the project from applying
new rules, regulations and policies which (1) are necessary to
protect the public health and safety, (2) are not directly or
indirectly in conflict with those rules, regulations, policies
applicable to the Project as set forth herein, and (3) do not
prevent or materially frustrate the Development of the Project as
contemplated herein.
22. CONSISTENCY FINDING
By approving and executing this Agreement, City finds that
its provisions are consistent with City's General Plan and with
Specific Plan No. 89-2, and City further finds and determines
that execution of this Agreement is in the best interests of the
public health, safety and general welfare of City's residents,
property owners and taxpayers.
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23. TERMS OF CONSTRUCTION
23.1 Severabilitv. If any term, provisions, covenant or
condition of this Agreement shall be determined invalid, void or
` unenforceable by judgment or court order, the remainder of this
Agreement shall remain in full force and effect, unless
enforcement of this Agreement as so invalidated would be
unreasonable or grossly inequitable under all the circumstances,
or would frustrate the stated purposes of this Agreement.
23.2 Entire aareement. This written Agreement contains all
the representations and the entire agreement between City and
Developer.- Any prior correspondence, memoranda, agreements,
- warranties or sepresentations are superseded.in total by this
Agreement. This Agreement shall be construed as a whole
according to its common meaning and not strictly for or against
any party in order to achieve the objectives and purposes of the
parties hereunder. Whenever required by the context of this
Agreement, the singular shall include the plural and vice versa,
and the masculine gender shall include the feminine or neutered
genders. "Shall" is mandatory and "may" is permissive.
23.3 Sianature pages. For convenience, the signatures of
the parties to this Agreement may be executed and acknowledged on
separate pages which, when attached to this Agreement, shall '
constitute this document as one complete Agreement.
23.4 Time. Time is of the essence of this Agreement and of
each and every term and condition hereof. ''
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.~ 24. CONSENT OF OTHER PARTIES
Developer may, at its discretion, elect to have other ,
holders of legal, equitable or beneficial interests in the j
~ Project, the Property or portions thereof, acknowledge and ,
consent to the execution and recordation of this Agreement by 'I
executing an appropriate instrument therefor. It is understood
by the parties that the execution of such document by other '
i
holders of legal, equitable, or beneficial interest in the ~
i
Project is not a condition precedent to this Agreement. j
25. ASSIGNMENT AND NOTICE
Developer shall have.the right to assign or transfer all or
any portion of its interests, rights or obligations,under this
Agreement to third parties acquiring an interest or estate in
Project, the Property or portions thereof, including but not
limited to purchasers or long-term ground lessees of individual
lots, parcels, or of any of the buildings located within the
Project. Developer shall give prior written notice to the City
of its intention to assign or transfer any of its interest,
rights or obligations under this Agreement. Any failure by
Developer to provide said notice shall be curable in accordance
with the provisions of Section 15 hereof. The express assumption
of any of Developer's obligations under this Agreement by its
assignee or transferee shall thereby relieve Developer of any
further obligations under this Agreement. Notwithstanding the
foregoing, Developer shall have no obligation whatsoever to
provide said notice when it intends to assign an interest in this
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Agreement in connection with a conveyance or transfer to a bank
or other financial institution or corporation for financing
purposes of an equitable interest in the Project and/or the
~' Pro~erty whether by means of a deed of trust or other instrument.
26. ENCUMBRANCES AND RELEASES ON REAL PROPERTY
26.1 Discretion to encumber. The parties hereto agree that
this Agreement shall not prevent or limit Developer in any
manner, at Developer's sole discretion, from encumbering the
subject real Property or any portion of any improvement thereo
by any mortgage, deed of trust or other security device securing
financing with.respect to the Property. City acknowledges that
the lenders providing such financing may require certain
modifications and City agrees, upon request, fro~ time to time,
to meet with Developer and/or representatives of such lenders to
negotiate in good faith any such request for modification. City
further agrees that it will not unreasonably withhold its consent
to any such requested modification so long as the modifications
do not materially alter this Agreement.
26.2 Entitlement to written notice of default. The
mortgagee of a mortgage or beneficiary of a deed of trust, and
their successors and assigns, or any mortgage or deed of trust
encumbering the property, or any part thereof, which mortgagee,
beneficiary, successor or assign has requested notice in writing
received by City, shall be entitled to receive written ~;
notification from City of any default by Developer in the
performance of Developer's obligations under this Agreement which II
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is not cured within thirty (30) days.
26.3 Property subiect to pro rata claims. Any mortgagee
who comes into possession of the property, or any part thereof,
pursuant to foreclosure of the mortgage or deed of trust, or deed
in lieu of such foreclosure, shall take the Property, or part
thereof, subject to any pro rata claims for payments or charges
against the Property, or part thereof secured by such mortgage
which accrue prior to the time such mortgagee comes into
possession of the Property or part thereof.
26.4 Releases. City hereby covenants and agrees that upon
completion of the public improvements and payment of all fees
:,required under this Agreement with:respect to the Property, or
any portion thereof, City shall execute and deliver to the
Riverside County Recorder appropriate release or releases of
further obligations in form and substance acceptable to the
County Recorder or as may otherwise be necessary to effect such
release.
27. OPERATING MEMORANDA
The parties acknowledge that from time to time it may be in
the mutual interest of the parties that certain details relative
to performance of this Agreement be refined. Therefor, to the
extent allowable by law, the parties retain a certain degree of
flexibility with respect to those provisions covered in general
under this Agreement which do not relate to the term, permicted
uses, density or intensity of use, height or size of buildings,
provisions for reservation and dedication of land, timing, rate
;
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, or sequence of development, conditions, terms, restrictions and
.. requirements relatinq to subsequent discretionary actions,
development of public improvements or monetary contributions by
~ Developer or any conditions or covenants relating to the use of
the Property. When and if the parties find it necessary or I
appropriate to make changes or adjustments to such provisions,
they shall effectuate changes or adjustments through operating '
memoranda in recordable form approved by the parties in writing ',
which reference this Section 27. For purposes of this Section I
27, the City Manager or his/her designee upon report to and '
approval by the City Council, shall have the authority to approve '
,.. the operating.memoranda on behalf of City. No operating
memoranda shall require notice or hearing or shall be deemed to
constitute an amendment to his Agreement.
28. INSTITUTION OF LEGAL ACTION.
In addition to any other rights or remedies, either party
may institute legal action to cure, correct or remedy any
default, to enforce any covenants or agreements herein or to !
enjoin any threatened or atter,pted violation thereof or to obtain
any remedies consistent with the purpose of this Agreement. In
the event of any such legal action involving or arising out of
this Agreement, the prevailing party shall be entitled to recover
reasonable litigation expenses, attorneys' fees and costs
incurred. It is understood between the parties that in the event ~,
a breach of this Agreement by City occurs, irreparable harm is
likely to occur to Developer and damages may be an inadequate I
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remedy. To the extent permitted by law, therefore, it is
expressly recognized that specific enforcement of this Agreement
by Developer is a proper and desirable remedy in addition to any
A and all"other remedies which may be available to Developer under
law or at equity.
29. INSURANCE.
Developer agrees to and shall hold City, its officers,
agents, employees and representatives harmless from liability for
,
damage or claims for damage,for personal injury including death
and claims for property damage which may arise out of the direct
or..indirect operation.of Developer. or.those of their.contractors,
subcontractors, agents, employees or other persons acting on
their behalf which relate to the Project. Developer agrees to
and shall defend City and its officers, agents, employees and
representatives from actions for damages caused or alleged to
have been caused by reason of Developer's activities in
connection with the Project.
This hold harmless agreement applies to all damages and
claims for damages suffered or alleged to have been suffered by
reason of the operations referred to in this paragraph,
regardless of whether or not the City prepared, supplied, or
approved plans or specifications or both for the Project and
regardless of whether or not the insurance policies referred to
below are applicable.
Before beginning work on the Project, Developer shall obtain
the insurance required under this paragraph and receive the
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approval of City Attorney as to form, content, amount and
carrier. Developer shall maintain the insurance during the term
of this Development Agreement. The insurance shall extend to
City, its elective and appointive boards, commissions, officers,
agents, employees and representatives and to Developer and each
contractor and subcontrac:or performing work on the Property:
29.1 Compensation Insurance. Developer shall maintain
Workers Compensation Insurance for all persons employed at the
site of Project. Developer shall require each contractor and
subcontractor similarly to provide Workers Compensation Insura ~
for their respective employees. Developer agrees to indemnify
..City for damage..resulting-from the failure to take out and
maintain such insurance.
29.2 Public Liability and Prooertv Damaae Insurance.
Developer shall maintain public liabili.ty insurance in an amount
not less than One Million Dollars ($1,000,000.00) for injuries
(including death) to any one person and in an amount not less
than One Million Dollars ($1,000,000.00) on account of any one
occurrence; and property damage insurance in an amount not less ,
than One Hundred Thousand Dollars ($100,000.00) for damage to the ,
property of each person on account of any one occurrence.
Developer shall furnish City before beginning work on the
Project with a Certificate of Insurance constituting satisfactory ,
evidence of the insurance required and providing that each
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carrier is required to give City at least ten (10) days prior
written notice by certified mail of the cancellation or reduction I
in coverage of any insurance. ~
bEVELOPER:
BRIGHTON ALBERHILL ASSOCIATES, a
California genera~artnership
By. ~~'
Ge ra tner
CITY:
CITY OF LAKE ELSINORE, a
municiyfal corporation and political
subdiv jsion of the State of
Califo~Mia , i _ e
By:
A TEST: ~
City Cler
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STATE OF CALIFORNIA )
) ss.
COUNTY OF ~,e,v.~4.E )
On this /7~ day of ~~~ v , 1990, before me the
undersigned, a Notar~ Public in and for said State, personally
appeared ~'on S(.~,~,~,vo-.w,a~.~, personally known to me (or
proved to me on the basis of satisfactory evidence) to be the
person who executed the within instrument as the General Partner
of Brighton Alberhill Associates.
WITNESS my hand and official seal.
A~1D Cd11m. E%p. OCL 4. 7992
ary
STATE OF CALIFORNIA
COUNTY OF RIVERSIDE
On this llth day of ~U~Y , 1990, before me the
undersigned, a Notarp Public in and for said State, personally
appeared Gary M. 4lashburn , personally known to me
(or proved to me on the basis of satisfactory evidence) to be the
person who executed the within instrument as the Mayor of the
City of Lake Elsinore, California, and acknowledged to me that
said City of Lake Elsinore, Califo'rnia executed it.
WITNESS my hand and official seal.
' ~ ,
Notary Public
8/066/012051/0001/006
°°
' ~
~~~~~Y~"'~ OFFICIAL SEAL
s
=
t~"E==-3•~,
: ADRIA CEE BRYPJING
NOTARY PUBLIC -
,
4^; s
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, ~ CAUFORN~q
R)VEP.a"IDE COUNTY
"'., c~^~m. ex;:ires M~.SR 3, I;M3
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