HomeMy WebLinkAboutOrd. No. 1990-891ORDINANCE NO. 891
AN ORDINANCE OF THE CITY COUNCIL OF THE
CITY OF LAKE ELSINORE APPROVING A
DEVELOPMENT AGREEMENT WITH PARDEE-
GROSSMAN/COTTONWOOD CANYON.
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
Pardee-Grossman/Cottonwood Canyon 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 Pardee-Grossman/Cottonwood Canyon and (2) the
previously certified environmental impact report prepared for
the Cottonwood Canyon 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 Pardee-Grossman/Cottonwood Canyon, 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 cause the same to be
published in the manner required by law. This Ordinance
shall become effective upon the expiration of thirty (30)
days from and after its passage.
PASSED UPON FIRST READING this 8 th day of .May_ , 1990
upon the following roll call vote:
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AYES: COUNCILMEMBERS: BUCK, DOMINGUEZ, STARKEY, WINKLER
NOES: COUNCILMEMBERS: NONE
ABSENT: COUNCILMEMBERS: WASHBURN
ABSTAIN: COUNCILMEMBERS: NONE
PASSED, APPROVED AND ADOPTED this 2znd day of May, 1990
upon the following roll call vote:
AYES: COUNCILMEMBERS: BUCK, DOP4INGUEZ, STARKEY, WINKLER, WASHBURN
NOES: COUNCILMEMBERS: NONE
ABSENT: COUNCILMEI~IBERS: NONE
ABSTAIN: COUNCILMEMBERS: NONE
YVu~
. ,.~..w.. ,, uY.,
of Lake Elsinore
ATTE3To
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V"icki I~ nn Kasad, City Clerk
City of Lale ~lsinore
APPROVED AS TO FORM AND LEGALITY:
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John R. H- rper;,~Attorney
City of Lake E s' ore
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 May 8, 1990, and had its second reading on May 22, 1990 and was
passed by the following vote:
AYES: COUNCILMEMBERS: SUCK, DOMINGUEZ, STARKEY,
WASHBURN, WINKLER
NOES: COUNCILMEMBERS: NONE
ABSENT: COUNCILMEMBERS: NONE
ABSTAZN: COUNCILMEMBERS: NONE
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VICKI LYNN KASAD, CITY CLERK
CITY OF LA E EY~SINORE
(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. 891 of said Council, and that the
same has not been amended or repealed.
DATED: Ma~y 23, 1990
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VICKI LYb` KASAD, CITY C ERK
CITY OF LA E ELSINORE
(SEAL)
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, . ,.;
DEVELAPMENT AGREEMENT
BETWEEN THE
CITY OF LAKE ELSINORE
AND
PARDEE-GROSSMAN/COTTONWOOD CANYON
TABLE OF CONTENTS
DEVEIAPMENT AGREEMENT
BETWEEN THE
CITY OF LAKE ELSINORE
AND
PARDEE-GROSSMAN/COTTONWOOD CANYON
Page No.
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PARTIES AND DATE ............................... 1
RECITALS ....................................... 1
2.1 Developer's Interest in Property.......... 1
2.2 Development Agreement Fee ................. 1
2.3 Environmental Report ...................... 2
2.4 Development Approvals ..................... 2
2.5 Approval of Development Agreement......... 2
2.6 Legal Authority ........................... 2
2.7 Consideration ............................. 2
DEFINITIONS ................................... 6
PROPERTY COVERED ............................... 8
INTEREST OF DEVEIAPER .......................... 9
DURATION OF AGREEMENT .......................... 9
6.1 Effective Date and Term ................... 9
6.2 Scheduling .. ............................ 9
6.3 Periodic Review.... .. ................ 10
6.4 Certification of Completion ............... 12
VESTED RIGHT ................................... 12
7.1 Acknowledgment of Vested Right............ 12
7.2 No Conflicting Enactments ................. 13
7.3 Intent of Parties ......................... 13
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8. GENERAL DEVEIAPMENT OF THE PROJECT ............. 14
8.1 Project .. . . . ... .................... 14
8.2 Phasing of~Developments ................... 15
8.3 Reservations or Dedications ............... 15
8.4 Administrative Changes and Amendments..... 16
9. RULES, REGULATIONS AND OFFICIAL POLICIES....... 17
9.1 Effect of Agreement on Land Use
Regulations ............................... 17
9.2 Modified Rules ........................ . 18
9.3 Fees... .... . ..................... 20
9.4 Comparative Evaluation .................... 21
9.5 Subsequent Actions and Approvals.......... 21
9.6 State and Federal Laws .................... 21
9.7 Unforeseen Circumstances ................. 23
I0. COOPERATION AND COVENANT OF FURTHER ASSURANCES. 24
10.1 Third Party Actions ....................... 24
10.2 Further Assurances ........................ 25
10.3 Processing...... ....................... 25
10.4 Governmental Permits.. ............. 26
10.5 Financing of Public Facilities
and/or Services... ..................... 26
10.6 Utilities Coordination.. . .... .... 28
10.7 Covenant of Good Faith and•Fair Dealing.... 28
10.8 Stephens Kangaroo Rat ..................... 28
11. PERMITTED DELAYS ............................... 29
I2. ESTOPPEL CERTIFICATES .......................... 29
13. RECORDATION BY CITY CLERK ...................... 30
14. DEFAULT ........................................ 30
14.1 Events of Default ......................... 30
14.2 Default by City ........................... 32
14.3 No Waiver.... . ...................... 32
14.4 Effect of Termination ..................... 32
15. ENFORCED DELAY AND EXTENSION OF TIME OF
PERFORMANCE .................................... 33
16. APPLICABI,E LAW ................................. 33
17. NO JOINT VENTURE OR PARTNERSHIP ................ 33
18. ADDRESSES FOR NOTICES .......................... 34
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19. ASSSGNMENT AND NOTICE .......................... 35
20. ENCUMBRANCES AND RELEASES OF REAL PROPERTY..... 36
20.1 Discretion to Encumber.. ...............
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Conveyances....
20.2 Subordination to Liens and 37
20.3 Entitlement to Written Notice of Default.. 37
21. AFFORDABLE HOUSING ............................. 37
22. CONSISTENCY FINDING ............................ 38
23. CONSENT OF OTHER PARTIES ....................... 38
24. RELEASE ........................................ 39
25. OPERATING MEMORANDA ............................ 39
26. INSTITUTION OF LEGAL ACTION .................... 40
27. INDEMNITY ...................................... 41
28. INSURANCE ...................................... 42
29. TERMS AND CONDITIONS ........................... 42
29.1 Entire Agreement .......................... 42
29.2 Signature Pages ........................... 42
29.3 Time ...................................... 43
EXHIBITS
EXHIBIT A: Legal description of the Property
EXAIBIT B: City ordinance adopting Specific Plan
EXHIBIT C: City ordinance adopting General Plan amendment
EXHIBIT D: Conditions of Approval for Specific Plan 88-1
(Cottonwood Hills)
EXHIBIT E: Addendum Re: Implementation of Conditions
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DEVELAPMENT AGREEMENT BETWEEN
THE CITY OF LAKE ELSINORE
AND PARDEE-GROSSMAN/COTTONWOOD CANYON
i. 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 PARDEE-GROSSMAN/COTTONWOOD CANYON, a general partnership
organized and existing under the laws of the State of California
("Developer°). The project to which this Agreement applies is
commonly known as Cottonwood Hills. This Agreement is made and
entered into on Sulv 9, 1990 with reference to the following
14II facts:
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2. RECITALS
2.1 Developer's Interest in Propertv. Developer has an
option to purchase certain real property located in the County of
Riverside, California, more particularly described in Exhibit
°A~p attached hereto and incorporated herein by reference ("the
Property"). Developer has an equitable interest in the Property.
The Property constitutes approximately 1,968.7 acres of
undeveloped land in the western portion of Riverside County. The
Property is located between Interstates 15 and 215.
2.2 Development Aureement Fee. Developer has agreed to pay
City a development agreement fee equal to $2,000 times the number
of residential building permits to be issued to Developer under
this Agreement, subject to the credits set forth in this section.
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Developer has agreed to undertake responsibility for construction
of Railroad Canyon Road as set forth in this Agreement. City
acknowledges that the value to City for such undertaking is at
least $1,000 times the number of residential building permits to
be issued to Developer under this Agreement. City agrees
therefore that Developer is entitled to a credit against the
$2,000 per residential building permit fee of $1,000 per
` residential building permit. In light of the foregoing, the
parties agree that Developer will pay a development agreement fee
to City of $1,000 per residential building permit issued pursuant
to this Agreement. Said fee shall be paid at the time of issuance
of each building permit.
2.3 Environmental Report. An Environmental Impact Report
has been submitted to City in connection with the Specific Plan,
General Plan amendment, sphere amendment, City annexation, and
Phase 1 Vesting Tentative Map applications.
2.4 Develooment Avbrovals. Developer submitted and City
considered and approved a Specific Plan covering all of the
Property. The Specific Plan addresses conformance with General
Plan policies and objectives and provided the basis for a General
Plan amendment enacted by the City. The Specific Plan includes
prezoning for the Property and provision for municipal services.
On March 14, 1989, the City Council adopted the Cottonwood Hills
Specific Plan (S.P. 88-1) by duly enacted ordinance and adopted
Conditions of Approval for Specific Plan 88-1 (Cottonwood Hills).
On March 14, 1989, the City Council also enacted an amendment to
the General Plan consistent with the Specific Plan. Copies of
the resolutions of the City Council adopting the Specific Plan
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and the General Plan amendment are attached hereto as Exhibits
°B~ and °C.° A copy of the Conditions of Approval For Specific
Plan 88-1 (Cottonwood Hillsj is attached hereto as Exhibit °D."
Developer has submitted a Vesting Tentative Map for Phase 1 of
the Specific Plan which was approved by the City.
2.5 ~~roval of Develonment Agreement. On April 5 ,
1990, the Planning Commission of City, after giving notice
~ pursuant to Government Code sections 65854, 65854.5, 65856, and
section 17.92.020 of the City of Lake Elsinore Municipal Code
held a public hearing on the application for this Development
Agreement. The City Council of City, after providing public
~ notice as required by law, similarly held a public hearing on
April 24 , 1990. On May p~ , 1990, the City
Council of City adopted Ordinance No. gg7 approving the
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I Development Agreement with Developer and the Ordinance thereafte:
took effect on ,n , 1990.
2.6 Leaal Authoritv. California Government Code Sections
65864 et seq. authorize City to enter into binding development
agreements in connection with the development of real property
within City. This Agreement is made and entered into pursuant to
those provisions of state law and local regulations.
2.7 Consideration.
(a) Constructing the Cottonwood Hills project pursuant '
to City's Approved Specific Plan will require major investment by
Developer in public facilities and on-site and off-site
improvements. The Development has been analyzed and reviewed by
City as part of its process of granting development approvals in
light of the enacted larnl use standards and policies of City
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1 embodied in its Existing Land Use Ordinances and pursuant to state
2 law, including but not limited to CEQA. City has determined that '
, 3 entry into this Agreement will further the goals and objectives of '
4 City's land use planning policies by eliminating uncertainty in
5 planning for the orderly Development of the Project so that
6 adequate long term plans regarding the provision of necessary
7 infrastructure for existing and future City residents can be
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8> developed and implemented. Further, the maximum effective '!
9 utilization of resources within City will be pursued at the least
10 economic cost to its citizens. City acknowledges that the Project ~
11 is and shall be considered a single, integrated development I
12 project, that each phase of the Project is dependent upon the
13 completion and occupancy of each other phase, and that the
14 viability of each phase of the Project is and shall be dependent
15 upon the completion and occupancy of each other phase and the fulll
16 performance of this Agreement. The benefits conferred by ~
17 Developer herein will facilitate the installation of certain vital
18 public improvements and will help increase traffic capacity for
19 the road system of City, both of which will significantly promote
20 the health, safety and general welfare of existing and future City
-21 residents.
22 (b) In exchange for these benefits to City and its
23 residents, City desires to make a commitment to Developer that
24 Developer may proceed to develop the Project in accordance with
25 Existing Land Use Ordinances, and its existing financial and
26 contractual commitments, and at a rate of development of its
27 choosing, subject to the terms and conditions contained in this
28 Agreement. The assurandes`provided by City and Developer to each
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1 other herein and provided pursuant to and as contemplated by
2 statute, were bargained for and given in consideration for the
3 undertakings of the parties, and are intended to be and have bee~
4 relied upon by the parties to their detriment.
5 (c) City and Developer agree that the amenities and
6 improvements being provided by Developer and others as part of the
7 planning, financing and construction of the project will result in
8 substantial general public benefit. A description of those
9 amenities and improvements is set forth in the Specific Plan,
10 General Plan Amendment, and Conditions of Approval.
11 (d) Because of the complexities of financing an urban
12 infrastructure, certainty in the development process is an
13 absolute necessity. The phasing, timing and development of public
14 infrastructure including community parks, fire station, roads,
15 signals, neighborhood parks, sewer and water facilities, other
16 utilities, and open space maintenance necessitates a significant
=17 commitment of resources, planning and effort by Developer in order
18 for the public facilities financing to be successfully completed.
19 Accordingly, City desires to make a commitment for certainty in
24 the development process.
21 (e) City acknowledges that Developer would not enter
22 into this Agreement, and would not consent to annexation of the
23 Property by City, or agree to provide the public benefits and
24 improvements described in this Agreement (which exceed the public
25 improvements Developer would be required to provide as part of the
26 normal subdivision process), if it were not for the agreement of
'27 City that the Property can be developed in accordance with j
28 Existing Land Use Ordinaric~s throughout the term of this Agreeme
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and the commitment of City in good faith to pursue public
infrastructure financing.
(f) City acknowledges that it would not be economically'
feasible for Developer or any other developer to develop the
Property and incur the obligations required, pursuant to this
Agreement without having the assurances as provided herein that
.Developer will be able to develop the Property consistent with the
Specific Plan submitted by Developer and the terms hereof.
(g) In consideration for City's entering into this
Agreement and the uses permitted herein, Developer agrees that it
will comply with all the Conditions of Approval during the time
this Agreement is in full force and effect. The parties
acknowledge that this Agreement is a material consideration for
Developer's aeceptance of the Conditions of Approval.
3. DEFINITIONS
3.1 "Agreement" means this Development Agreement made and
entered into by and between the City and Developer in accordance
with applicable state laws and local regulations.
3.2 "CEQA" means the California Environmental Quality Act of
1970 (California Public Resources Code Section 21000 et s~.) and
the State CEQA Guidelines (California Code of Regulations, Title I
14, Section 15000 et se~c.). ~
3.3 "City" means the City of Lake Elsinore, including its
officials, officers, employees, commissions, committees and '
boards.
3.4 "City Council" means the duly elected City Council of
the City of Lake Elsinore.~
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3.5 °Developern means PARDEE-GROSSMAN/COTTONWOOD CANYON and
its successors in interest to all or any part of the Property.
3.6 NDevelopment° means the improvement of the Property fo2
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.
3.7 °Development Approval(s)H means the Specific Plan,
General Plan Amendment, and Conditions of Approval as in effect on
the date of this Agreement.
3.8 °Effective Daten means the date described in Section 6.1
of this Agreement.
3.9 °EIRn means an environmental impact report prepared in
accordance with the provisions of CEQA.
3.10 "Existing Land Use Ordinances" means the Specific Plan,
as in effect on the date of this Agreement, and, to the extent
applicable and not inconsistent with the Specific Plan, the City's
rules, ordinances, regulations, laws, official policies governing
development, density, permitted uses, growth management,
environmental considerations and design criteria, taxes and fee
programs, including, without limitation, the City's general plan
and zoning, subdivision, and building regulations, whether adopted
by the City Council or by the voters in an initiative, in effect
as of the date of this Agreement.
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3.11 °Projectn means the development project, as set forth I
in the Specific Plan, as in effect on the date of this Agreement. ~
3.12 °Property° means the real property which is the subject'
of this Agreement and is described in Section 4 below.
, 3.13 pSpecific Plan° means the Cottonwood Hills Specific
Plan (S.P. 88-1).
3.14 °Substantial compliancey for the purposes of this
Agreement.and periodic review hereunder means the party has
sufficiently followed the terms of this Agreement so as to carry
out the intent of the parties in entering into this Agreement.
3.15 The ~exhibitsn to the Agreement are as follows and are
incorporated herein as though set forth in full:
EXHIBIT A: Legal description of the Property.
EXHIBIT B: City ordinance adopting Specific Plan.
EXHIBIT C:, City ordinance adopting General Plan
. amendment.
EXHIBIT D: Conditions of Approval For Specific Plan 88-1
(Cottonwood Hills).
EXHIBIT E: Addendum Re Implementation of Conditions.
4. PROPERTY COVERED
The property covered by this Agreement is described in i
Exhibit °A" attached hereto and incorporated herein by this
reference. This Agreement may be amended as provided in paragraph
8.4 to include additional real property owned by Developer
provided that any reference herein to Existing Land Use Ordinances'
shall, with respect to such additional property, refer to those '
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land use ordinances in effect upon the effective date of any such
amendment.
5. INTEREST OF DEVELAPER
Developer represents that it has a legal or equitable
interest in the Property and that all other persons presently
holding legal or equitable interests in the Property will be bound
by the Agreement as of its effective date.
6. DURATION OF AGREEMENT
6.1 Effective Date and Term. The term of this Agreement
shall be for twenty (20) calendar years from its effective date.
Said term may be extended by the circumstances set forth in
Sections li and 15. The effective date of this Agreement shall be
the last'`date of (a) adoption by City of an ordinance authorizinc
execution of this Agreement; (b) All the Property being formally
annexed to the City; and (c) execution of this Agreement by the
Parties.
6.2 Schedulinu. Construction of the Project covered by this
Agreement will be 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 aforesaid twenty (20) year period.
So long as the Project is constructed in a manner consistent with
the City's Existing Land Use Ordinances as of the date of this
Agreement and the Specific Plan, Developer shall have the right
construct the Project at~the rate and in the sequence deemed
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appropriate by Developer within the exercise of its sound business
judgment. 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 aforesaid twenty (20) year term, this Agreement
shall be deemed terminated and of no further force and effect.
6.3 Periodic review.
(a) 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
demonstrate their good faith compliance with the terms and
conditions of this Agreement. Both 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 shall not constitute or
be asserted by either party as a breach of the other party. Such
periodic review shall be limited in scope to the compliance, by
Developer, with the terms of this Agreement. A finding by City of
good faith compliance by Developer with the terms of the Agreement
shall conclusively determine said issue up to the date of such
finding.
(b) City shall deposit in the mail to Developer a copy
of all staff reports, and to the extent practical, related
exhibits concerning confract performance a minimum of ten (10)
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~ calendar days prior to any such review or action upon the
I Development Agreement by City. Upon request by Developer,
Developer shall be permitted an opportunity to be heard orally
~ and in writing regarding its performance under the Agreement at
~ any review on the Development Agreement.
(c) Developer's duty to demonstrate its good faith
compliance may be satisfied by the presentation to City of (1) a
I written report identifying Developer's performance or the reasons
I! for its non-performance excused pursuant to the terms of this
Agreement or (2) oral or written evidence submitted at the time of
review. The parties recognize that this Agreement and the
documents incorporated herein could be deemed to contain thousands
of reguirements (i.e. construction standards, landscape standards
et al.), and that evidence of each and every requirement would be
a wasteful exercise of the parties resources. Accordingly,
Developer shall be deemed to have satisfied its duty when it
presents evidence on its good faith and substantial compliance
with the major provisions of the Specific Plan and the uses,
numher, types, densities, heights and sizes of structures
completed and any reservations and dedications to the City.
Generali2ed evidence or statements shall be accepted in the
absence of evidence that such evidence is untrue. Either party
may address any requirement of this Agreement; provided, however,
that City shall provide ten (10) days written notice to Developer
of any requirement it desires to be addressed. If, at any time
of review an issue not previously identified in writing is
required to be addressed by City, the review, at the request of
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either party, shall be continued to afford sufficient time for
analysis and preparation.
(d) Developer may seek judicial review of any finding
by City of failure by Developer to demonstrate good faith
compliance with the terms of the Agreement under this section.
Any such legal action shall be commenced in the Superior Court of
Riverside County. Zn any judicial proceeding, the court shall
r apply the standard of judicial review utilized in cases affecting
vesting rights.
6.4 Certification of comoletion. Promptly upon completion
of the Project, Developer will submit a draft letter of completion
for City review. Upon review, City shall provide Developer with
a letter of completion so certifying. This certification shall
be a conclusive determination that the obligations of Developer
under this Agreement have 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. VESTED RIGHT
7.1 Acknowledctment of Vested Right. By entering into this
I Agreement:and relying thereon, Developer is obtaining a vested
right to proceed with the Project in accordance with the
Development Approvals and Existing Land Use Ordinances, but
subject to any remaining discretionary approvals required in order
I to complete the Projects as contemplated by the Development
Approvals (which discretion shall be exercised reasonably and in
I accordance with the terms of this Agreement). By entering into
II this Agreement and relying thereupon, City is securing certain
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public benefits which help to alleviate potential problems in
City and enhance the public health, safety and welfare. City
therefore agrees to the following:
7.2 No conflicting enactments. Neither the City Council of
City nor any other agency of City shall enact an ordinance,
policy, rule, regulation or other measure applicable to the
I Project which relates to the rate, timing or sequencing of the
I development or construction of all or any part of the Project or
which is otherwise in conflict with this Agreement.
7.3 Intent of oarties. In addition to and not in limitation
of the foregoing, it is the intent of Developer and City that no
moratorium or other limitation (whether relating to the rate,
timing or sequencing of the development or construction of all or
any part of the Project and whether or not enacted by initiative
or otherwise) affecting parcel or subdivision maps, building
permits, site development permits, special use permits, a~cupancy
certificates or other entitlements to use approved, issued or
granted within City, or portions of City, shall apply to the
Project to the extent such moratorium or other limitation is in
conflict with this Agreement. Notwithstanding the foregoing,
should an ordinance, general plan or zoning amendment, measure,
moratorium, policy, rule, regulation or other limitation enacted
by citizens of City through the initiative process be determined
by a court of competent jurisdiction to invalidate or prevail over
all or any part of this Agreement, Developer shall have no
recourse against City pursuant to this Agreement, but shall retain
all other rights, claims and causes of action at law or in equit .
which Developer may have~under this Agreement and independent of
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this Agreement. The foregoing shall not be deemed to limit
Developer's right to appeal any such determination of such
ordinance, general plan or zoning amendment, measure, ploy, rule,
regulation, moratorium or other limitation which purports to
invalidate or prevail over all or any part of this Agreement.
City and Developer agree to cooperate in all reasonable manners
'in order to keep this Agreement in full force and effect.
8. GENERAL DEVELOPMENT OF THE PROJECT
8.1 Proiect. While this Agreement is in effect, Developer
shall have a vested right to develop the Project in accordance
with the terms and conditions of this Agreement, and in accordance
with, and to the extent of the Development Approvals. Except as
otherwise specified in this Agreement, the Development Approvals
`shall control the overall design, development and construction of
the Project and all on-site and off-site improvements and
appurtenances in connection herewith, including, without
limitation, all mitigation measures required in order to minimize
or eliminate material adverse environmental impacts caused by the
Project. The permitted uses of the Property, the density and
'intensity of use, the maximum height and si2e of proposed
buildings, the provisions for reservation and dedication of land
for public purposes and other terms and conditions of development
applicable to the Property shall be those set forth in this
Agreement and the Development Approvals or as may otherwise be
mutually agreed upon by the parties. The Project shall be
configured generally as indicated on the Specific Plan. The
location of the improvements shall be generally as indicated on
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the Specific Plan; provided, however, that the Specific Plan
placement and location of improvements including common area
facilities, roadways and landscaping as shown on said plan is
descriptive only and may be varied, amended, changed or modified
at the election of Developer, with approval of the Community
Development Director, in accordance with the applicable provisions
of the Existing Land Use Ordinances. Such right of approval is
to ensure compliance with the Specific Plan, and to ensure that
amendments to the Specific Plan do not adversely affect
compatibility with offsite improvements. The number of
residential units actually constructed in any planning unit may
vary in accordance with the provisions of the Specific Plan.
8.2 Phasina of Develooments: The construction of
improvements and development of the Property may be accomplished
at the times and in the phases or increments which are selected 1
Developer. No moratoriums or ordinances imposing limitations on
the number of building permits which may be issued by City shall
apply to the Property unless a finding is made in accordance with i, ~
Section 9.7. City specifically acknowledges that Developer's '
discretionary control over timing and phasing of construction is
a major consideration being provided to Developer under this ,
Agreement, and such discretionary control over timing and phasing
of construction is a vested right provided to Developer under this '
Agreement. '
8.3 Reservations or Dedications: Reservations or
I dedications of portions of the Property are set forth on the Phase
I Vesting Tentative Map which will be approved, as described in
the Recitals set forth akiove. Other reservations or dedications
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of portions of the Property may, from time to time, be required
by City in accordance with or as part of subdivision map approvals
for the remainder of the Property. Said reservations and
dedications are to be imposed in accordance with Existing Land
Use Ordinances. For the purposes of this Section 8.3 and the
Vesting Tentative Map relating to Phase I of the project, any
>reference to the ~dedicationM or ~reservation° of land shall be
~ construed to include the acquisition of such land by a Mello-Roos
Community Facilities District, or other financing district at a
~ purchase price equal to the fair market value thereof.
I Accordingly, all park and other sites to be "dedicated" or
~°reserved" to the City pursuant to the Vesting Tentative Map
I relating to Phase I of the project or this Section 8.3, may be
purchased by a, Community Facilities District (or other financing
`district) formed over property owned by the Developer to the
extent funds are legally available for such purpose.
8.4 Administrative changes and amendments. This Agreement
may be amended from time to time by mutual consent of the parties
in the same manner as its adoption by ordinance. The parties
acknowledge that refinements and further development of the
Project may demonstrate that changes are appropriate with respect
to the details and performance of the parties under this
Agreement. The parties desire to retain a certain degree of
flexibility with respect to the details of the Project development
and with respect to those items covered in general terms under
this Agreement. If and when the parties find that changes or
adjustments are necessary or appropriate, they shall, unless
otherwise required by lai~r, effectuate such changes or adjustments
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through administrative amendments approved by the City Director
of Community Development, which, after execution, shall be
attached hereto as an addendum and become a part hereof, and may
be further changed and amended from time to time as necessary,
with approval by City and Developer. Any such administrative
changes or amendments shall not be deemed to be an amendment to
this Agreement under Government Code Section 65868. Unless
otherwise required by law, no such administrative amendments shall
require notice or hearing. Notwithstanding the foregoing, the
following matters shall not be considered administrative changes
or amendments, but shall be considered substantive amendments
which shall be reviewed by the Planning Commission and approved
by the City Council:
(a) Alteration of the permitted uses of the Property;
>'(b) Increase in the density or intensity of use or
number of lots;
(c) Increase in the maximum height and size in
permitted buildings;
(d) Deletion of a requirement for the reservation or
dedication of land for public purposes except for minor boundary
adjustments approved by the Planning Di~rector; and
(e) Any amendment or change requiring a subsequent or
supplemental Environmental Impact Report pursuant to Public
Resources Code Section 21166.
9. RULES, REGULATIONS AND OFFICIAL POLICIES
9.1 Effect of aareement on land use reaulations. The rule;
regulations and official~~policies governing permitted uses of tht
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Property, the density and intensity of use of the Property, the
maximum height and size of proposed buildings and the design,
improvement and construction standards and specifications
applicable to development of the Property are those rules,
regulations and official policies in force as of the Agreement
Date set forth in the Specific Plan, and City agrees that during
the term of this Agreement, Developer shall have the right to
develop the Property in any manner consistent with the Specific
Plan and,said rules, regulations and official policies. In
connection with any approval which City is permitted or has the
right to make under this Agreement relating to the Project, or
otherwise under the Existing Land Use Ordinances, City shall
exercise its discretion or take action in a manner which is as
diligent as possible and which complies and is consistent with the
i Development Approvals and the standards, terms and conditions
I contained in this Agreement, and in a manner which will not
interfere with the development of the Project for these uses, and
to the height, density and intensity specified in this Agreement,
or with the rate of development selected by Developer. City shall
accept for processing and normal timely review and act on all
applications for further land use entitlement approvals with
respect to the Project called for or required under this
Agreement. Such application shall be processed in the normal
manner for processing such matters.
9.2 Modified Rules. City may, during the term of this
Agreement, apply only such newer, modified rules, regulations,
ordinances, laws, general or specific plans, and official policies
which are not in conflic~ with those in effect on the date of this
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Agreement; provided that such application shall not prevent
development in accordance with Sections 8.1 and 8.2 above.
However, this section shall not preclude the application to
development of the Property of changes in City laws, regulations,
plans or policies specifically mandated and required by changes in
state or federal laws or regulations. In the event such changes
in state or federal laws prevent or preclude compliance with one
or more provisions of this Agreement and implementation of the
Specific Plan, the parties agree to take appropriate action
pursuant to Section 9.6 of this Agreement. This Agreement shall
not prevent City from applying the following new rules,
I regulations and policies:
(a) Processing fees and charges imposed by City to
cover the estimated actual costs to City of processing
applications for development approvals, for monitoring complianc
with any development approvals, or for monitoring compliance with
environmental impact mitigation measures.
(b) Procedural regulations relating to hearing bodies,
petitions, applications, notices, findings, records, hearings,
reports, recommendations, appeals and any other matter of
procedure.
(c) Regulations governing construction standards and
specifications including, without limitation, the City~s Building
Code, Plumbing Code, Mechanical Code, Electrical Code and Fire
Code provided that such construction standards and specifications
are applied on a City-wide basis.
(d) Regulations which are not in conflict with the
Development Approvals or this Agreement.
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(e) Regulations which are in conflict with the
Development Approvals or this Agreement if such regulations have
been consented to in writing by Developer.
9.3 ees. Any application, processing and inspection fees,
building codes or construction standards and specifications, now
..existing or hereafter in existence, shall apply to development
pursuant to this Agreement; provided that: (i) such fees,
standards and specifications are applicable to all applications
for construction or building permits for private projects in the !
City or apply to all public works within the City and (ii) their
application to the development of the Property is prospective only
as to applications for building and other development permits or
approvals of tentative subdivision maps not yet accepted for
processing; and (iii) their application shall not prevent
development in accordance with sections 8.1 and 8.2 of this
Agreement. City shall not impose, in any form, any development
impact fee upon Developer or the Property other than those
specific fees described in Exhibit "E" to this Agreement, entitled
Addendum Re Implementation of Conditions. City shall not increase
any fee described on Exhibit "En from the amount of the fee set
forth on Exhibit °E." A development impact fee shall be
considered to be any direct or indirect fee, charge or assessment
based upon or arising from the impact or effect of any development
of the Property upon City, including, but not limited to, its
infrastructure, facilities, or roadways, or upon the need for
capital improvements or maintenance caused by any development of
the Property.
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comparative evaluation of Developer's proposed development of the
Property with a proposed development of any other project of any
developer in connection with issuance of building permits or other
approvals for development of the Property.
9.5 Subsequent actions and approvals. In accordance with
Government Code Section 65866, this Agreement shall not prevent
City in subsequent actions applicable to the Property from
applying new rules, regulations and policies which do not conflict
with those existing rules, regulations and policies set forth in
the Development Approvals, nor shall this Agreement prevent City
from denying or conditionally approving any subsequent development
project application not subject to this Agreement on the basis of
such existing or new rules, regulations or policies.
9.6 State and federal laws.
(a) In the event that state or federal laws or
regulations, enacted after this Agreement is executed, prevent or
preclude compli~nce with one or more of the provisions of this
Agreement, such provisions of this Agreement shall be modified or
suspended as may be necessary to comply with such state or federal
laws or regulations; provided, however,` that this Agreement shall
remain in full force and effect to the extent it is not
inconsistent with such laws or regulations and subject to the
following provisions: In the event that State or Federal laws or
regulations enacted after this Agreement have been entered into or
the action or inaction of any other affected governmental
jurisdiction prevent or preclude compliance with one or more
provisions of this Agreement or require changes in plans, maps o.
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permits approved by City (including a court decision affecting the
validity of development agreements pursuant to Government Code
Section 65864 through 65869.5), the parties shall: (1) provide
the other party with written notice of such state or federal
restriction, provide a copy of such regulation or policy and a
statement of conflict with the provisions of this Agreement; and
(2) promptly meet and confer with the other party in good faith
and reasonably attempt to modify or toll this Agreement to comply
9 with such federal or state law or regulation in a manner
10 consistent with the intent and objectives of this Agreement, to
11 the extent feasible.
12 (b) Thereafter, regardless of whether the parties reach i
13 agreement on the effect of such federal or state law or regulation
14 upon this Agreement, the matter shall be scheduled for hearing
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15 before the Council, ten (10) days written notice of such hearing ;i
16 shall be provided to Developer, and the Council, at such hearing, ~
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17 shall determine the exact modification or tolling which is
18 required by such federal or state law or regulation. Developer,
19II at the hearing, shall have the right to offer testimony. Any
20II modification or tolling shall be taken by the affirmative vote of
21II not less than a majority of the authorized voting members of the
22 Council. Any suspension or modification may be subject to
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23 judicial review in conformance with this Agreement.
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24 Notwithstanding the above, this Agreement is deemed to be a valid
25 and legitimate exercise by City of its police power to provide
26 for future public improvements and facilities for the benefit of
27 the health, safety and welfare of City.
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9.7 Unforeseen Circumstances: If, as a result of facts,
events or circumstances presently unknown, unforeseeable and which
could not have been known to the parties to this Agreement, City
~ determines that the health and safety of City requires the
I modification, suspension or termination of this Agreement, City
shall (1) notify Developer in writing of (a) City~s determination,
(b) the reasons for City's determination and all facts upon which
such reasons are based, and (c) forward to Developer ten (10) days
prior to the hearing referred to below all documents relating to
such determination and reasons therefor; (2) notify Developer, in
writing, at least ten (10) days prior to the date, the time and
place of the hearing; and (3) hold a hearing at which Developer
shall have the right to offer witnesses, reports and testimony,
and further have the right to examine witnesses, City staff or
' other persons; and (4) make a finding that, based upon clear and
convincing evidence, it has been established that: (a) The
circumstances were unknown, unforeseeable and could not have been
known; (b) The health and safety of the community require the
suspension, modification or termination of the Agreement as
opposed to any other alternative; and (c) City to the extent
feasible has provided Developer with an equitable program to
reimburse to Developer unused fees, and provide equitable
reimbursement for dedications or improvements not required by the
extent of development as of the date of such suspension,
modification or termination. In the event the City Council should
fail to make such findings then this Agreement shall not be so
terminated, modified or suspended; and in the event the City
Council should make such-~findings, Developer shall have the right
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to file an action in the Superior Court, County of Riverside,
challenging said findings. The Superior Court shall utilize the
standard of review applicable in cases involving vested rights.
The unforeseen circumstances, which shall cause the operation of
•this provision shall not be the result of changes in State or
Federal law. In the event of changes in State or Federal law,
the provisions of Section 9.6 shall govern.
10. COOPERATION AND COVENANT OF FURTHER ASSURANCES
10.1 Third vartv actions. Developer 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.
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 11. 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) unless the third party obtains a court order preventing
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the activity. City will not stipulate to the issuance of any
I such court order.
10.2 Further assurances. Each party covenants on behalf of I
itself and its successors and assigns to take all actions and do I
all things, and to execute with acknowledgments or affidavits if
required any and all documents and writings that may be necessary
or proper to achieve 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.
10.3 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 commence and proceed to complete all steps
required or necessary for the implementation of this Agreement
and the Development by Developer of the Project in accordance
with the Existing Development Approvals including:
(1) Scheduling, convening and concluding all required
public hearings in a diligent manner consistent with applicable
laws and regulations in force as of the Effective Date of this
Agreement.
(2) Processing and approval of 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.
Developer will, in a timely manner, provide City with
all documents, applications, plans and other information necessary
for City to carry out its obligations hereunder and cause
Developer's planners, enc~ineers and all other consultants to
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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 the Specific Plan.
10.4 Governmental permits. Developer 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 use its best efforts to
assist Developer in coordinating the implementation of the Project
with such other governmental agencies. City shall cooperate with
Developer in its efforts to obtain such permits and approvals. If ','
City's execution of a document or agreement is necessary or
required by law to obtain or give effect to any such permit or
approval, then City will execute such document or agreement.
10.5 Financina of public facilities and/or services.
(a) Attached hereto as Exhibit "D" is a statement of
the Conditions of Approval For Specific Plan 88-1 (COttonwood
Hills) adopted by the City Council on March 14, 1989. Said
conditions relate to public improvements to be provided by
I Developer. Attached hereto as Exhibit "E° is an Addendum Re
I"Implementation of Conditions, which relates to the conditions
I imposed by Exhibit nD.° Each party shall perform the obligations
imposed upon that party by Exhibit °E~n and each party may
exercise and enforce the rights given that party by Exhibit "E."
(b) City will cooperate and use its best efforts to
assist Developer in obtaining and implementing and placing in
effect a Mello-Roos, or other improvement bond program, or other
public financing program'~which may be available for the purpose of
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I~ funding the planning, design, construction and maintenance of
' public facilities, including related fees and the acquisition of
land therefor, and/or the provision of public services for the
Project. In addition, the City shall not require the Developer to I
join an existing Mello-Roos District or require that the financing '
districts participate in any pooled financing program or bond
issue sponsored directly or indirectly by the City, unless at the
time of the issuance of bonds, a formal policy provides that all
developments for which the City is sponsoring a Mello-Roos
District shall be required to participate in such financing
program. Unless Developer otherwise consents, in the event that
Developer is required to participate in a pooled financing or
Marks-Roos Program,
,. [i] the Marks-Roos bonds or pool bonds to purcha
the Mello-Roos obligations from Developer's property
will only be available to purchase such Mello-Roos
obligations; and
[ii~ the City will retain an underwriter
~ recommended by Developer and agreeable to the City to
participate in not less than 50 percent of the
underwriting.
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 purposes. The parties, however,
acknowledge that such puiilic improvements may not be completely
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financed by said financial mechanism and the City retains the
right to establish a maximum tax rate or assessment per parcel/lot
or acre. 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 infrastructure. City will also
assist Developer in securing construction and/or permanent
financing and/or seller financing in connection with the
development of the Property, and in condemning and obtaining all
necessary rights of way.
10.6 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 requlations.
10.7 Covenant of aood faith and fair dealina. 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 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.
10.8 Stephens Kanaaroo Rat. City will use its best efforts ',
to maximize the amount o~ aoreage which is released for grading
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and allocate it to City pursuant to the Riverside County Short-
Term Habitat Conservation Plan for the Stephens Kangaroo Rat, and
City will take such steps as may be necessary or appropriate fro~
time to time, to secure such maximum allocation.
11. PERMZTTED 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
labor disputes; unavoidable shortage of materials or supplies,
damage to work in progress by reason of fire, flood, earthquake
or other casualty, litigation which prohibits processing or
! constructing the Project; initiatives or referenda; moratoria; or
unanticipated restrictions imposed or mandated by other
governmental entities. Each party shall promptly notify the oth~
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.. Notwithstanding Section
14.3, any claim for delay must be presented within 30 days of
knowledge of the cause of such delay, or any entitlement to time
extension shall be deemed waived.
12. 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 amend~_
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1 or modified, and, if so amended or modified, to identify the
2 relevant documents; and (3) no default in the performance of the
~ 3 requesting party's obligations under this Agreement exists or, if
4 in default, the nature of any default. A party receiving a
~ request hereunder shall execute and return the certificate within
6 thirty (30) days following the receipt thereof.
7
8' 13. RECORDATION BY CITY CLERK
9 Pursuant to Government Code Section 65868.5, within ten (10)
10 days of City's execution of this Agreement, the City Clerk shall
11 record a copy with the Riverside County Recorder. Thereafter,
12 pursuant to Government Code Section 65868.5, n[t]he burdens of the
13 agreement shall be binding upon, and the benefits of the agreement
14 shall inure to, all successors in interest to the parties to the
15 agreement.°
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17 14. DEFAULT
18 14.1 Events of default.
19 (a) Subject to any written extension of time by mutual
20 consent of the parties, and subject to the provisions of Sections
21 li and 15 regarding permitted delays, the failure of either party
22 to perform any material term or provision of this Agreement shall
23 constitute default if such defaulting party does not cure such
24 failure within thirty (30) days following written notice of
25 default from the other party; provided, however, that if the
26 nature of the default is such that it cannot be cured within
27 thirty (30) days, the commencement of a cure within such period
28 and the diligent prosecution to completion of the cure shall be
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deemed to be a cure within such 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 satisfactori:
cured in accordance with the terms and conditions of this
Agreement. During the time periods herein specified for 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.
(b) After proper notice and the expiration of the time
for cure, the noticing party to this Agreement, at its option, may
institute legal proceedings pursuant to Section 25 hereof or give
notice of intent to terminate this Agreement pursuant to
Government Code Section 65868. Following notice of intent to
terminate, the matter shall then be scheduled for consideration
and review in the manner set forth in California Government Code
Sections 65865, 65867 and 65868 by the City Council within thirty
(30) days. The City Council shall utilize the standard of review
applicable in cases involving vested rights.
(c) In the event the City Council finds a default on
the basis of evidence presented before it, the non-defaulting
party may at its option give written notice of termination of this
Agreement to the party found to be in default by certified mail.
The party found to be in default may seek judicial review of the
City Council decision by filing an action in the Superior Court ~'
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1 Riverside County. The Superior Court shall utilize the standard
2 of review applicable in cases involving vested rights.
3 14.2 Default bv Citv: In the event that City does not
4 accept, review, approve and issue requested development permits or
5 entitlements; or City otherwise defaults on this Agreement; or
6 City otherwise fails to comply with any term or provision of this
7-Agreement; City shall be in default. City agrees that Developer
8 in no event shall be obligated to proceed with or complete the
9II project or any phase thereof nor shall resulting delays in
l0ll Developer's performance constitute grounds for termination or
lll cancellation of this Agreement.
12 14.3 No waiver. Failure by a party to insist upon the
13 strict performance of any of the provisions of this Agreement by
14 the other party shall not constitute waiver of such party's riqht
15 -to demand strict compliance with such other party in the future.
16 All waivers must be in writing to be effective or binding upon
17 the waiving party, and no waiver shall be implied from any
18 omission by a party to take any action with respect to such
19 default. No express written waiver of any default shall affect
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20 any other default, or cover any other period of time except that
21 specified in such express waiver.
22 14.4 Effect of termination. Termination of this Agreement
23 by one party due to the other party~s default shall not affect any
24 right or duty emanating from City entitlements or approvals on the
25 Project, but the rights, duties and obligations of the parties
26 hereunder shall otherwise cease as of the date of such
27II termination.
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15. 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 :
default where delays or defaults are due to war, insurrection,
strikes, walk-outs, riots, floods, earthquakes, fires, 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 3aws 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 of
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.
16. APPLICABLE LAW
This Agreement shall be construed and enforced in accordance
with the laws of the State of California.
17. NO JOINT VENTURE 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 contractual relationship between City and Developer is such
that Developer is an independent contractor and not an agent of
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City. Furthermore, this Agreement is not intended, nor shall it ;
be construed, to create any third party beneficiary rights in any ,
person who is not a party to this Agreement. ',
`18. 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:
To City: City of Lake Elsinore
130 South Main Street
Lake Elsinore, CA 92330
Attn: City Manager
To Developer:, Pardee Construction Company
10880 Wilshire Boulevard
Suite 1400
Los Angeles, CA 90024
Attn: Theodore J. Cullen
with a copy to: Sandler and Rosen
1801 Avenue of the Stars
Suite 510
Los Angeles, CA 90067
Attn: Charles L. Birke
Notices shall be deemed given on the date delivered in person or
the date when the postal authorities indicate that the mailing was
delivered. Written notices and demands shall be sent in the same
manner to such other persons and addresses as either party may
from time to time designate in a written notice pursuant to this
section.
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I 19. ASSIGNMENT AND NOTICE
(a) Subject to Section 19(b), Developer shall have the
I right to assign or transfer all or any portion of its interest,
~I 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 any of the
buildings located within the Project with or without prior
approval of City. Developer shall give 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 this Agreement. City's approval of the
assignment shall not be unreasonably withheld or delayed. Upon
City's approval of the assignment, the express assumption of any
of Developer's obligations under this Agreement by its assignee
transferee shall thereby relieve Developer of any further
obligations under this Agreement. No assignee or transferee shall
be deemed to have assumed any of the obligations of this Agreement
in the absence of an express written undertaking. If City
reasonably withholds approval, then Developer may nevertheless
~ complete the assignment, but Developer will not be relieved of its
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 Agreement in
connection with a conveyance or transfer to a bank or other
financial institution or corporation for financing purposes of a>
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equitable interest in the Project and/or the Property whether by
means of a deed of trust or other instrument.
(b) Notwithstanding the provisions of Section 19(a),
'upon the sale or lease for more than one year of a dwelling unit
i'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 notice and without the necessity of
executing or recording any specific instrument of release or
approval.
20. ENCUMBRANCES AND RELEASES OF REAL PROPERTY
20.1 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 thereon 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, from 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.
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20.2 Subordination to Liens and Convevances. City's rights
to enforce any obligation of this Agreement are subordinate to thP
lien of any mortgage or deed of:trust or other instrument utiliz~
to secure financing with respect to the Property, or any
improvement thereon. Nothing in this Agreement shall be deemed to
create a lien on behalf of City against the Property. City will
execute and deliver to any lender or other interested person such
I documents as may be reasonably requested to acknowledge that City
I has no lien on the Property by reason of this Agreement, and that
.
I'I City's rights under this Agreement are subordinate as set forth
herein. Nothing herein, however, shall be deemed to relieve
li Developer of its obligations under this Agreement.
20.3 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
receive by City, shall be entitled to receive written notification
form City of any default by Developer in the performance of
Developer's obligations under this Agreement which is not cured
within thirty (30) days.
21. AFFORDABLE HOUSING
In order to be consistent with the City's xousing Element,
Developer will provide its fair share of affordable rental housing
in the event Developer builds rental housing in the Multi-Family
zones of the project. Such affordable rental housing will be
available to persons in fhe low and very low income ranges, as
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determined by the County Median Average when the building permits
are issued for such units by the City. Such affordable rental
housing shall be not less than fifteen percent (15~) of any rental
units built by Developer, and shall not exceed twenty percent
'`(20~) of such rental units. Nothing herein shall require
Developer to build any rental units in order to provide such
affordable housing. Developer agrees that if densities for the
project are reduced, the reduction will not eliminate the
aforementioned affordable rental housing. City will assist
Developer in providing such fair share of affordable housing by
providing economic incentives to Developer, including but not by
way of limitation, access to so-called "set aside" funds.
Developer may provide the Cottonwood Hill Project~s fair share of
affordable rental housing by providing the aforesaid number of
rental housing units at one or more other locations within the
City limits acceptable to City Council.
22. CONSISTENCY FINDING
By approving and executing this l~greement, City finds that
its provisions are consistent with the City's General Plan and
with the Specific Plan, 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.
23. CONSENT OF OTHER PARTIES
Developer may, at its discretion, elect to have other holders
of legal, equitable or tieneficial interests in the Project, the
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Property or portions thereof, acknowledge and consent to the
execution and recordation of this Agreement by executing an
appropriate instrument therefor. It is understood by the partie,
that the execution of such document by other holders of legal,
equitable, or beneficial interest in the Project is not a
condition precedent to this Agreement.
24. RELEASE.
City hereby covenants and agree 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.
25. 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, permitted
uses, density or intensity of use, height or size of building,
provisions for reservation and dedication of land, timing, rate or
sequence of development, conditions, terms, restrictions and
requirements relating to subsequent discretionary actions,
28~~ development of public improvements or monetary contributions by
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Developer or any conditions or covenants relating to the use of
the Property. When and if the parties find it necessary or
appropriate to make changes or adjustments to such provisions,
they shall effectuate changes of adjustments through operating
memoranda in recordable form approved by the parties in writing
which reference this Section 24. For purposes of this Section 24,
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 this Agreement.
26. 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 attempted 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
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
and all other remedies which may be available to Developer under
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law or at equity. Each party shall have the right to enforce one
or more remedies hereunder successively and concurrently and any
such action shall not estop or prevent such party form pursuing
any further remedy which it may have; and all remedies, either
under this Agreement or at law or in equity or otherwise afforded
to the parties shall be cumulative and not alternative. In all
judicial proceedings, the court shall utilize the standard of
judicial review applicable to vested rights.
27. INDEMNITY
(a) Developer agrees to and shall hold the 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 the Developer or those oi
their contractors, subcontractors, agents, employees or other
persons acting on their behalf which relate to the Project.
Developer agrees to and shall defend the 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.
(b) 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 insurance coverage exists.
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(c) The provisions of this Section shall not apply to the
extent such damage, liability or claim is proximately caused by
the intentional or negligent act of City, its officers, agents,
employees or representatives. All indemnity rights and
obligations shall be governed by principles of comparative fault.
°28. INSURANCE
Imarovement Security/Insurance: As a condition of approving
a subdivision map for all or a portion of the Property, City may
require the furnishing of appropriate and reasonable security
pursuant to local ordinances and California Government Code
Section 66499, et seq. City may also require evidence of
compliance with labor standards and insurance required as a
standard condition under federal, state or local law at the time
of City action on any necessary development permits or any other
entitlements for the use and development of the Property pursuant
to this Agreement.
29. TERMS AND CONSTRUCTION
29.1 Entire Agreement. This written Agreement contains all
the representations and the entire agreement between City and
Developer.' Any prior correspondence., memoranda, agreements,
warranties or representations 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
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masculine gender shall include the feminine or neuter gender.
°Shall° is the mandatory and pmayy is the permissive.
29.2 Signature oaaes. 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.
29.3 Time. Time is of the essence of this Agreement and of
each and every term and condition hereof.
CITY OF LAKE ELSINORE
By:
WASHBUIiN, "4P,Y6R
DEVEIAPER:
PARDEE-GROSSMAN, COTTONWOOD
CANYON, a General Partnership by
PARDEE CONSTRUCTION COMPANY, a
California corporation,
GENERAL PARTNER
By : /!/(~A> //, ~`,~
Michael V. McGee
Vice President [Title]
Approved as to form and legality
this ~~the day of ~, 1990
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~s-s-va~
ATTEST:
~ ~
City Clerk
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CITY ATTORNEY