HomeMy WebLinkAboutOrd. No. 1990-892ORDINANCE NO. 892
AN ORDINANCE OF THE CITY COUNCIL OF THE
CITY OF LAKE ELSINORE APPROVING A
DEVELOPMENT AGREEMENT WITH RIALTO
DEVELOPMENT CORPORATION, WHICA DOES
BUSINESS AS L.D. JOHNSON COMPANIES.
WHEREAS, the Planning Commission of the City of Lake
Elsinore held a duly naticed public hearing on a proposed
Development Agreement between the City of Lake Elsinore and
Rialto Development Corporation on April 4, 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 Agreemen~t is consistent with the City's General
Plan and the Ramsgate Specifio Plan and (2) the previously
certified environmental impact report prepared for the
Ramsgate 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 FOLLOW5:
Section l. The Development Agreement between the City
of Lake Elsinore and Rialto Development Corporation, 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 o£ thirty (30)
days from and after its passage.
PASSED UPON FIRST READING this 22nd day of May, 1990
upon the following roll call vote:
AYES:
NOES:
ABSENT: COUNCILMEMBERS:
ABSTENTIONS: COUNCILMEMBERS:
BUCK, DOMINGUEZ, STARKEY, blASHBURN
NONE
~dONE
WIfJKLER
PASSED, APPROVED AND ADOPTED this 12th day of June,
1990 upon the following roll call vote:
AYES: COUNCILMEMBERS:
NOES: COUNCILMEMBERS:
ABSENT: COUNCILMEMBERS:
ABSTENTIONS: COUNGILMEMBERS:
BUCK, DORIII'~UEZ, STI~RI<EY, b,!1SHBUP.N
NONE
NOtJE
ER
,
~~ C
M. Washburn, Mayo
~ of Lake Elsinore
A~EST :
t ~
Vicki Lyn Kasad, City Clerk
City of La e Elsinore
(SE~I~)
APPROVED AS TO FORM AND LEGALITY:
John R.
City of
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 22, 1990, and had its second reading on June 12, 1990 and was
passed by the following vote:
AYES: COUNCILMEMBERS: BUCK, DOMINGUEZ, STARICEY,
WASHBURN
NOES: COUNCILMEMBERS: NONE
ABSENT: COUNCILMEMBERS: NONE
AB5TAIN: COUNCILMEMBERS: WINKLER
~~~~ ~~
VICKI LYNN KASAD, CITY CLERK
CITY OF LA ELSINORE
(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 HER~BY CERTIFY that the above and foregoing is a full, true and
correct copy of Ordinance No. 892 of said Council, and that the
same has not been amended or repealed.
DATED: June 12, 1990
.,~~ (\\\ ~~`~'~`
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~
VICKI LYNNE SAD, CITY CLER
CITY OF LAK ELSINORE
(SEAL)
,
___ _ ___ _ _ ___ _ _ _
RECORDING REQUESTED BY AND CITY OF LAKE ELSINORE
WHEN RECORDED MAIL T0: REVISION 5/1/90
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DEVELOPMENT AGREEMENT
BETWEEN THE
CITY OF LAKE ELSINORE
AND
RIALTO DEVELOPMENT CORPORATION, which does
business as LD JOHNSON COMPANIES
FOR
RAMSGATE
DATED: `'~ ~ .I~ ~Q,
1 TABLE OF CONTENTS
Paae
2
3
1. PARTIES AND DATE . . . . . . . . . . . . . . . . . . . . 1
4
2. DEFINITIONS . . . . . . . . . . . . . . . . . . . . . . 1
5
3. RECITALS . . . . . . . . . . . . . . . . . . . . . . . . 3
6
3.1 Property . . . . . . . . . . . . . . . . . . . . . 3
7
3.2 Leaal Authority . . . . . . . . . . . . . . . . . . 3
8
3.3. Consistency Findinq . . . . . . . . . . . . . . . 4
9
3.4 Status of Project . . . . . . . . . . . . . . . . . q
10
3.5 Consideration . . . . . . . . . . . , . . . . . . 4
11
4. DEVELOPER PROVIDED AMENITIES . . . . . . . . . . . . . . 6
12
4.1 Description of Amenities . . . . . . . . . . . . . 6
13
4.1.1 Develooment Agreement Fee . . . . . . . . . g
14
4.1.2 Feasibilitv Study . . . . . . . . . . . . . 7
15
4.1.3 Sales Tax Situs . . . . . . . . . . . . . . 7
16
4.1.4 School Site . . . . . . . . . . . . . . . . 7
17
4.1.5 Park Site . . . . . . . . . . . . . . , g
18
4.1.6 Affordable Housina . . . . . .'. . . . . . . 11
19
5. DURATION OF AGREEMENT . . . . . . . . . . . . . . . . . 11
20
5.1 Schedulina .. . . . . . . . . . . . . . . . . . . . 11
21
5.2 Periodic Review . . . . . . . . . . . . . . . . . . 12
22
5.3 Certification of Completion . . . . . . . . . . . . 12
23
6. VESTED RIGHT . . . . . . . . . . . . . . . . . . . . . . 13
24
6.1 Vestina . . . . . . . . . . . . . . . . . . . . . . 13
25
6.1.1 No Conflictina Enactments . . . . . . . . . 13
26
6.1.2 Intent of Parties . . . . . . . . . . . . . 13
27
6.1.3 Gradina . . . . . . . . . . . . . . . . . . 14
28
i
1 7
2
3
4
5
6
7
8
9
10 8.
11
12
13
14
15
16
17
18
19
20
21
22 9
23
24
25
26
27
28
GENERAL DEVELOPMENT OF THE PROJECT . . . . . . . . . . . 15
7 . 1 Proj ect . . . . . . . . . . . . . . . . . . . . . . 15
7.2 Effect of Aareement on Land Use Reaulations .. .. 15
7.3 Operatina Memoranda and Amendments . . . . . . . . 16
7.3.1 Alteration of Permitted Uses . . . . . . . . 17
7.3.2 Increase in Densitv or Intensitv .... .. 1~
7.3.3 Increase in Heiaht and size ...... .. 17
7.3.4 Deletion of Reservation Reauirements .. .. 1~
7.3.5 Suoblemental Environmental Review ... .. 17
RULES. REGULATIONS AND OFFICIAL POLICIES . . . . . . . . 17
8.1 New Rules . . . . . . . . . . . . . . . . . . . . . 17
8.1.1 Processing Fees . . . . . . . . . . . . . . 17
8.1.2 Procedural ReQUlations . . . . . . . . . . . lg
8.1.3 Reaulations Governinq Construction
Standards . . . . . . . . . . . . . . . . 18
8.1.4 Nonconflictina Reaulations . . . . . . . . . 18
8.1.5 Certain Conflicting Regulations .... .. 18
8.2 Subseauent Actions and Approvals . . . . . . . . . 18
8.3 State and Federal Laws . . . . . . . . . . . . . . ig
8.4 Police Power and Taxing Power . . . . . . . . . . . 19
8.5 Life of Subdivision or Parcel Mabs ...... .. 19
COOPERATION AND COVENANT OF FURTHER ASSURANCES ... .. 19
9.1 Third Partv Actions . . . . . . . . . . . . . . . 19
9.2 Further Assurances . . . . . . . . . . . . . . . . 20
9.3 Processina . . . . . . . . . . . . . . . . . . . . 20
9.3.1 Schedulina . . . . . . . . . . . . . . . . 21
9.3.2 Processina . . . . . . . . . . . . . . . . . 21
9.4 Other Governmental Permits . . . . . . . . . . . . 21
ii
1 9.5 Financina of Public Facilities and/or Services . . 22
2 9.6 Utilities Coordination
. . . . . . . . . . . . . . 24
3 9.7 Covenant of Good Faith and Fair Dealin
..... . 24
4 9.8 Stebhens Kanqaroo Rat .
. . . . . . . . . . . . . . Zq
5 9-9 Hiahwav 74 Realianment
. . . . . . . . . . . . . . Z4
6 10. PERMITTED DELAYS . . .
. . . . . . . . . . . . . . . . . 25
7 11. ~STOPPEL CERTIFICATES .
. . . . . . . . . . . . . . . . 26
8 12. RECORDATION BY CITY CLERK .
. . . . . . . . . . . . . . Z6
9 13. DEFATJLT . . . .
. . . . . . . . . . . . . . . . . 26
10 13.1 Events of Default .
. . . . . . . . . . . . . . . 26
11 13.2 Remedies . .
. . . . . . . . . . . . . . . . . . z~
12 13.3 No Waiver . . .
. . . . . . . . . . . . . . . . 2~
13 13.4 Effect of Termination
. . . . . . . . . . . . . . Zg
14 14. INCORPORATION BY REFERENCE
. . . . . . . . . . . . . . . Zg
15 14.1 Recitals .
. . . . . . . . . . . . . . . . . . . . 28
16 14.2 Exhibits
. . . . . . . . . . . . . . . . . . . . . Zg
17 15. APPLICABLE LAW . . .
. . . . . . . . . . . . . . . . 29
18 1G. NO JOINT VENTURE PARTNERSHIP OR THIRD PARTY
19 BENEFICIARY . . .
. . . . . . . . . . . . . . . . . . . 29
20 17. ADDRESSES FOR NOTICES .
. . . . . . . . . . . . . . . . Z9
21 18. COVENANTS RIINNING WITH THE LAND
. . . . . . . . . . . . 30
22 19. CONSISTENCY FINDING .
. . . . . . . . . . . . . . . . 31
23 20. TERMS AND CONSTRUCTION
. . . . . . . . . . . . . . . . . 31
24 20.1 Severabilitv .
. . . . . . . . . . . . . . . . . 31
25 20.2 Entire Aareement .
. . . . . . . . . . . . . . . . 31
26 20.3 Siqnature Paaes . . .
. . . . . . . . . . . . . . 32
27 20.4 Time .
. . . . . . . . . . . . . . . . . . . . . . 32
28 21. CONSENT OF OTHER PARTIES .
. . . . . . . . . . . . . . 3Z
iii
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22. ASSIGNMENT AND NOTICE . . . . . . . . . . . . . . . . . 32
23. ENCUMBRANCES AND RELEASES ON REAL PROPERTY ...... . 33
23.1 Discretion to Encumber . . . . . . . . . . . . . . 33
23.2 Entitlement to Written Notice of Default .... . 34
23.3 ProAertv Subject to Pro Rata Claims ...... . 34
23.4 Releases . . . . . . . . . . . . . . . . . . . . . 34
24. CONSTRUCTION. NUMBER AND GENDER . . . . . . . . . . . . 34
25. INSTITUTION OF LEGAL ACTION . . . . . . . . . . . . . . 35
26. INSURANCE . . . . . . . . . . . . . . . . . . . . . . . 35
26.1 ComAensation Insurance . . . . . . . . . . . . . . 36
26.2 Public Liabilitv and Probertv Damaae Insurance . . 37
SIGNATURES . . . . . . . . . . . . . . . . . . . . . . . . . .37
NOTARY ACKNOWLEDGEMENTS . . . . . . . . . . . . . . . . . .38
EXHIBIT "A" - Property
iv
1 DEVELOPMENT AGREEMENT BETWEEN
Z THE CITY OF LAKE ELSINORE
3 AND RIALTO DEVELOPMENT CORPORATION, which does
business as LD JOHNSON COMPANIES
4
FOR
5
RAMSGATE
6
7 1. PARTIES AND DATE
8 The parties to this Development Agreement (~~Agreement") are
9 the City of Lake Elsinore, California, a municipal corporation
lo ("City"), and Rialto Development Corporation, a Texas
11 corporation, which does business as LD Johnson Companies,
12 ("Developer"). The project to which this Agreement applies is
13 commonly known as Ramsgate. This Agreement is made and entered
14 into on ~.~~ 1990.
15 1
16 2. DEFINITIONS
17 2.1 "Agreement" means this Development Agreement.
18 2.2 "DU/Acre" means dwelling unit per acre.
19 2.3 "CEQA" means the California Environmental Quality Act
20 of 1970 (California Public Resources Code Section 21000 et sea.)
21 and the state CEQA Guidelines (California Code of Regulations,
22 Title 14, Section 15000 et sea.).
23 2.4 "City" mean the City of Lake Elsinore, including its
24 officials, officers, employees, commissions, committees and
25 boards.
26 2.5 "City Council" means the duly elected City Council of
27 the City.
28 2.6 "Community Park" means a 31.0 Ac Gross/23.0 Ac Net park
1
1 in Phasing Area iB„ for the enjoyment of residents of the
2 Property, as well as residents of areas outside the Property.
3 2.7 "Developer" mean Rialto Development Corporation, which
4 does business as LD Johnson Companies, and its successors in
5 interest to all or any part of the Property.
6 2.8 "Development" means the construction and/or
7 installation of structures, improvements and facilities
8 comprising the Project as set forth in this Agreement including,
9 without limitation, grading, the construction of infrastructure
10 and public facilities related to the Project (whether located
11 within or outside the Property), the construction of buildings
12 and the installation of landscaping.
13 2.9 "Development Approval" and "Existing Development
14 Approval" means the Specific Plan.
15 2.10 "Development Impact Fee" means any fee adopted
16 citywide that relates to the provision of public infrastructure,
17 facilities or services which is applied to all development
18 projects in the city and which is not subject to abatement or
19 reduction.
20 2.11 "Effective Date" means the date this Agreement is
21 recorded in the records of the Riverside County Recorder.
22 2.12 "'~EIR" means an environmental impact report for the
23 Project in accordance with the provisions of CEQA.
24 2.13 "Existing Land Use Ordinance" means the Specific Plan
25 and, to the extent applicable and not inconsistent with the
26 Specific Plan, the City's rules, regulations, official policies,
27 taxes and fee programs including, without limitation, the City's
28 qeneral plan and zoning, subdivision and building regulations,
2
1 whether adopted by the City Council or by the voters in an
2 initiative, which are in effect as of the Effective Date hereof.
3 2.14 "Government Code" means the California Government.
4 2.15 "LAFCO" means the Riverside County Local Agency
5 Formation Commission.
6 2.16 "Neighborhood Park" means a~. O Ac Gross/5.0 Ac
7 Net park in Phasing Area 2 of the Project, 2 acres of which will
8 be subject to joint use by the students and faculty of an
"9 adjacent school.
l0 2.17 "Phasing Area" means an area shown in the phasing map
11 which is included in the Specific Plan.
12 2.18 "Project" means the development project described in
13 this Agreement and the Specific plan.
14 2.19 "Property" means the real property which is the
15 subject of this Agreement and which is described in Section 3.
16 2.20 "Specific Plan" means the Ramsgate Specific Plan as
17 amended.
18 2.21 "Turn Key" means completion of an improvement to
19 either the Community Park or the Neighborhood Park in accordance
20 with City standards including, without limitation, City building
21 standards, as of the effective date hereof and dedication of such
22 improvements to the City.
23 3. RECITALS
24 3.1 Probertv. The Developer is the fee owner of the
25 Property which is located in the municipal limits of the City and
26 which is most particularly described in EXHIBIT "A".
27 3.2 Leaal Authoritv. Government Code Section 65864 et seg.
28 authorize the City to enter into development agreements in
3
i connections with the development of real property in the City.
2 This Agreement is made and entered into pursuant to those
3 provisions of state law.
4 3.3. Consistencv Findina. By approving and executing this
5 Agreement, the City finds that its provisions are consistent with
6 the City~s General Plan and with the SpecifiC Plan, and the City
7 further finds and determines that execution of this Agreement is
8 in the best interests of the public health, safety and general
9 welfare of the City's present and future residents, property
lo owners and taxpayers.
11 3.4 _S_tatus of Project. The Developer is in the process of
12 planning, financing and preparing for the Development, which is a
13 large scale, mixed use, phased development of some 3137 dwellings
14 and related schools, open space and recreational uses on
15 approximately 1,190 acres in the City and which is more
16 particularly described in the Specific Plan and the EIR.
17 Pursuing the Development as contemplated by the Specific Plan and
18 providing the mitigation set Forth in the EIR will require major
19 investment by the Developer in public facilities and on-site and `
20 off-site improvements. The Development has been analyzed and
21 reviewed by the City as part of its process of granting
22 development approvals, in view of the enacted land use standards
23 and policies of the City embodied in its Existing Land Use
24 Ordinance and in view of State law including, without limitation,
25 CEQA.
26 3.5 Consideration. The City has determined that entry into
27 this Agreement will further the goals and objectives of the
28 City's land use planning policies, by eliminating uncertainty in
4
1 planninq for the orderly development of the project, to the end
2 that adequate long term plans regarding the provision of
3"necessary infrastructure for existing and future city residents
4 can be developed and implemented. The City has further determined
5 that entry into this Agreement will provide the maximum effective
6 utilization of the resources of the City, at the least economic
7 cost to its citizens. Without limiting the generality of the
8 foregoing, the benefits conferred by the Developer pursuant to
9 this'Agreement will help increase traffic capacity for the road
10 system of the City and will facilitate the installation of
11 certain other vital public improvements, both of which will
12 significantly promote the health, safety and general welfare of
13 present and future residents of the City.
14 In exchange for these benefits to the City and its
15 residents, the Developer wishes to receive the assurances
16 permitted by State law that the Developer may proceed to develop
17 the Project in accordance with the Specific Plan and its existing
18 financial and contractual commitments, and at a rate of
19 development of its choosing, subject to the terms and conditions
20 of this'-Agreement. In that regard, the City acknowledges that the
21 project is and shall be considered a single, integrated
22 development project and that each phase of the Project is and
23 shall be dependent upon the completion and occupancy of each
24 other phase of the Project and the full performance of this
25 Agreement by the City.
26 >The assurances provided by the City and the Developer to
27 each other in this Agreement are being provided pursuant to and
28 as contemplated by State law, are bargained and in consideration
5
1 for the undertakings of the parties, and are intended to be and
2 have been relied upon by the parties to their detriment, such
3 that the Developer will be deemed to have a vested interest in
4 the Specific Plan, which will be the controlling land use plan
5 for the Project.
6 4. DEVEIAPER PROVIDED AMENITIES
7 4.1 Description of Amenities. The City and the Developer
8 agree that the following amenities and improvements being
9 provided by the Developer and others as part of the planning,
lo financing and Development of the Project, will result in
11 substantial general public benefit. The following is a general
12 description of those amenities and improvements.
13 4.1.1 Develooment Aareement Fee. The Developer will
14 pay a special fee which will be called a Development Agreement
15 Fee ("DAG"), at the time of issuance of building permits, to be
16 used to fund the cost of municipal capital facilities and
17 improvements and municipal public services including, without
18 limitation, a civic center, a police station, a fire station, a
19 library, cultural facilities, senior citizen facilities,
20 recreational facilities and a corporate yard. The DAG will be in
21 the amount of $2,000.00 per residential dwelling unit or
22 $5,700,000, whichever is greater. Without limiting the discretion
23 of the City, the City expects that one-half of the DAG will be
24 used within the area which is the subject of the Specific Plan
25 and one-half of the DAG may be used anywhere in the City. The DAG
26 will not be subject to increase for any reason whatsoever and
27 will constitute the sole DAG that the Developer will be required
28 to pay. Upon reasonable request by the Developer, the City will
6
1 provide the Developer with a periodic accounting setting forth
2 the amount of the DAG levied and collected by the City pursuant
3 to this Agreement and the specific purposes and/or projects for
4 which the DAG has been expended.
5 4.1.2 Feasibility Study. Within 3 months after the
6 Effective Date hereof, the Developer will pay the sum of
7$100,000.00 to the City, which will be used for the purpose of
8 preparing a report to study the feasibility of a permanent civic
9 center site for the City including, without limitation, the most
10 feasible location of the civic Center and the most feasible means
11 of financing the same.
12 4.1.3 Sales Tax Situs. The Developer, shall cooperate
13 to the extent feasible to work with City and the Lake Elsinore
14 Foundation to keep the point of sale of products which are
15 incorporated into the Project, in the municipal limits of the
16 City.
17 4.1.4 School Site. The Developer will convey to the
18 Lake Elsinore School District of Riverside County, a school site
19 (8 .2 Ac Gross/8.00 Ac Net) in phasing Area 1S of the project,
20 which will be contiguous to the Community Park site referred to
21 in Section 4.1.5. The Developer will also convey to the Lake
22 Elsinore School District of Riverside County, a school site (14.0
23 Ac Gross/9.8 Ac Net) in Phasing Area 2 of the Project, which will
24 be contiguous to the Neighborhood Park site referred to in
25 Section 4.1.5. The Developer will convey both of such school
26 sites in a fine graded hydroseeded and irrigated condition and
27 otherwise on such terms and conditions as are mutually agreed
28 between the Developer and the Lake Elsinore School District of
7
1 Riverside County; provided, however, that such school sites will
2 be irrigated according to standards which are applicable to large
3 scale open space and provided further that in no event will the
4 Developer be required to spend more than $750,000 with respect to
5 such improvements. The City will take such steps as may be
6 necessary to cause the owner of each project which is adjacent to
7 the Property and which does not provide either a Park Site or a
8 School Site, to pay all park fees which are required by the
9 Quimby Act br by City Ordinance, at the time of recordation of
l0 the first subdivision map or parcel map with respect to such
11 project and, using such park fees, will reimburse the Developer
12 with interest at the legal rate. The City acknowledges that the
13 future availability of the first mentioned school site for joint
14 use by the City after the conveyance by the Developer to such
15 School District, will be subject to mutual agreement between the
16 City and such School District. The City also acknowledges that
17 the Developer has previously conveyed a 10 acre school site to
18 the Lake Elsinore School District, the City will use its best
19 efforts to assist the Developer in negotiating an exchange of
20 such second mentioned school site for the 10 acre school site
21 which was previously conveyed by the Developer to such School
22 District.
23 The graded, turfed and irrigated school site located in
24 Tract 25479 will be operational by the issuance of the 100th
25 certificate of occupancy of said tract. The graded, turfed and
26 irrigated school site will be in Tract 25475 will be operational
27 by issuance of the 100th certificate of occupancy of said tract.
28 4.1.5 Park Site. Subject to the provisions of this
8
1 Section 4.1.5, the Developer will convey a Turn Key Community
2 Park site to the City, which will include 4 lighted ball fields
3
4
5
6
7
8
9
l0
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14~
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25
26,
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and l lighted soccer fields, concurrently with the opening of the'
I first model complex for the Project; provided, however, that the
Developer will not'be required to spend more than $1,500,000.00
with respect to the same. In addition, no later than the
issuance by the City of the 500th certificate of occupancy with
respect to single family detached dwellings in the Project, the
Developer will install the remaining facilities in the Community
Park; including tennis courts, baseball diamonds, soccer fields
and basketball courts, but excluding a community building and
related facilities; provided, however, that except for a
community building and related facilities, the City will have the
right to substitute facilities in the Community Park on the
approval of the Community Development Director of the City and
provided further that the Developer will not be required to spend
more than $2,850,000.00 with respect to all of the aforementioned
Community Park facilities, including the aforementioned grading,
irrigation; hydroseeding, lighted ball fields and lighted soccer
fields. The Community Park site will be developed in accordance
with current applicable City requirements including, without
limitation, City design and building requirements. Before the
first subdivision map or parcel map for the Project is recorded,
the City and the Developer will use their best efforts to obtain
the approval of the City Council of concept plans for the
Community Park site. Improvement of the Community Park site will
be funded from the DAG which the Developer will advance with
respect to the first 1,425 residential dwelling units in the
9
1 Project, which will account for the aforementioned $2,850,000.00
2 maximum Developer expenditure with respect to facilities at the
3 Community Park site, and any remaining costs of improvement of
4 the Community Park site including, without limitation, the cost
5 of any community building and related facilities, will be funded
6 using one of the mechanisms which is referred to in Section 9.5.
7 The City and the Developer will jointly endeavor to implement
8 such funding as may be necessary to pay the cost of such
9 community building and related facilities,on or before the
10 issuance by the City of the 1000th certificate of occupancy with
il respect to single family detached dwellings in the Project. All
12 expenditures with respect to improvements to the Community Park
- 13 site will be subject to review and approval by the Community
14 Development Director of the City.
15 In Addition, in further satisfaction of the Developer's
16 obligations under the Quimby Act or the applicable City
17 Ordinance, the Developer will convey the Neiqhborhood Park site
18 to the City, in a fine graded, hydroseeded and irrigated
19 condition, by the opening of the first model complex for Tract
20 25475; provided however, that such Neighborhood Park site will be
21 irrigated according to standards which are applicable to large
22 scale open space and provided further that in no event will the
23 Developer be required to spend more than $250,000.00 with respect
24 to fine grading, hydroseeding, and irrigating such Neighborhood
25 Park site. The City will take such steps as may be necessary to
26 cause the owner of each project which is adjacent to the Property
27 and which does not provide either a park site or a school site,
28 to pay all park fees which are required by the Quimby Act or by
10
1 City ordinance, at the time of recordation of the first
2 subdivision map or parcel map with respect to such project and,
3 using such park fees, will reimburse the:Developer, with interest
4 at the legal rate.
5 4.1.6 Affordable Housina. The developer will provide
6 its fair share of affordable housing within the multi-family
7 zones of the Specific Plan pursuant to California Health and
8 Safety Code Sections 50079.5 and 50105. If area within the
9 multi-family zones prove deficient, areas with Commercial zones
10 shall be utilized. The total number of affordable units in the
11 1ow and very low income ranges, as determined by the County
12 median average, shall be 157 units. The affordable mix between
13 low and very low income ranqes shall be based on the current
14 Housing Element standards. The affordable housing shall begin
15 construction upon the completion of 5og of the Specific Plan's
16 total units certificates of occupancy and shall be completed upon
17 the completion of 75~ of the Specific Plan's total units
18 certificates of occupancy.
19 - The City will assist the Developer in providing its fair
'20 share of affordable housing by providing access to available
21 redevelopment set aside funds at the outset of the developer's
22 affordable housing project. Other economic incentives such s
23 bond assistance, reduction of development standards, etc., may be
24 offered at the discretion of the City.
25 The developer will be responsible for implementing changes
26 that from time to time may occur to the City's Housing Element,
27 where such changes occur on a city wide equitable basis.
28 The affordable units shall remain in the affordable
11
1 categories as long as the City of Lake Elsinore has a regional
2 affordable housing requirement.
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II 5. DURATION OF AGREEMENT
5.1 Schedulina. Pursuant to Government Code Section
64865.2, the duration of this Agreement will be for 15 calendar
years from and after-the Effective Date hereof. Although
Development of the Project will be undertaken as soon as
reasonably practicable, the City and the Developer acknowledge
that the Developer cannot at this time accurately predict the
time schedule within which Development of the Project will occur,
except that it is in the Developer's present reasonable
expectation that it will be completed within the aforementioned
15 year period. Decisions with respect to the rate of Development
of the Project will depend on a number of circumstances not
within the control of the Developer including, without
limitation, market factors, demand, the state of the economy and
other matters. Therefore, so long as Development of the Project
occurs in a manner consistent with the City's Existing Land Use
Ordinance and this Agreement, the Developer will have the right
to pursue the Development of the Project at the rate and in the
sequence deemed appropriate by the Developer within the exercise
of its sound business judgment. For purposes of this Agreement,
completion of the Project will mean the date on which a
certificate of occupancy or comparable instrument issued by the
City for the last improvement or structure constructed pursuant
to:this Agreement. Following the expiration of the aforementioned
15 year term, this Agreement will be deemed terminated and of no
further force and effect.
12
1 5.2 Periodid Review. The City will, in accordance with
2 applicable State law, review this Agreement at least once every
3 12 months from and after the Effective Date hereof. During each
4 such periodic review, the City and the Developer will have the
5 duty to demonstrate their good faith compliance with the terms
6 and conditions of this Agreement. Both parties agree to furnish
7 such evidence of good faith compliance as may be reasonably
8 necessary, or required. The City's failure to review the
9 Developer's compliance with this Agreement, at least annually,
l0 will not constitute or be asserted by either party as a breach by
11 the other party.
12 5.3 Certification of Completion. Promptly upon completion
13 of the Project, the Developer will submit a draft letter of
14 completion for review by the City. Upon review, the City will
15 provide the Developer with a letter of completion so certifying.
16 this certification will be a conclusive determination that the
17 obligations of the Developer pursuant to this Agreement have been
18 met. The certification will be in a form that will allow it to be
19 recorded in the Records of the Riverside County Recorder.
20 6. VESTED RIGHT
21 6.1 Vestina. By entering into this Agreement and relying
22 thereon, the Developer is obtaining the vested right to proceed
23 with the Project in accordance with the Development Approval and
24 this Agreement, but subject to any remaining discretionary
25 approvals of the City required in order to complete the Project
26 as.contemplated by the Development Approval and this Agreement
27 (which discretion will be exercised reasonably and in accordance
28 with the terms of this Agreement). By entering into this
13
1 Agreement and relying thereon, the City is securing certain
2 public benefits which help to alleviate potential problems in the
3 City and enhance the public health, safety and welfare of
4 existing and future City residents. in view of the foregoing,
5 the City agrees to the following:
6 6.1.1 No Conflictina Enactments. Neither the City
7 Council nor any other agency or department of the City will enact
8 an ordinance, policy, rule, regulation or other measure
9 applicable to the Project which relates to the rate, timing or
10 sequencing of the development or construction of all or any part
il of the Project or which is otherwise in conflict with this
12 agreement.
13 6.1.2 Intent of Parties. In addition to and not in
14 limitation of the foregoing, no moratorium or other limitation
15 (whether relating to the rate, timing or sequencing of the
16 Development of all or any part of the Project and whether or not
17 enacted by initiative or otherwise), affecting parcel or
18 subdivision maps, building permits, site development permits,
19 special use permits, occupancy certificates or other entitlement
20 to use, which has been approved, issued or granted in the City,
21 or in parts of the City, will apply to the Project to the extent
22 such moratorium or other limitation is in conflict with this
23 Agreement. Notwithstanding the foregoing, if an ordinance,
24 general plan or zoning amendment, measure, moratorium, policy,
25 rule, regulation or other limitation enacted by citizens of the
26 City through the initiative process, is determined by a court of
27 competent jurisdiction to invalidate or prevail over all or any
28 part of this Agreement, then the Developer will have no recourse
14
1 against the City pursuant to this Agreement, but will retain all
2II other rights, claims and causes of action at law or in equity
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which the Developer may have independent of this Agreement.
However, the foregoing will not be deemed to limit the
Developer's right to appe~l any such determination of such
ordinance, general plan or zoning amendment, measure, moratorium,
'I policy, rule, regulation or other limitation. The foregoing will
I also not be deemed to limit the effect of Section 20.1.
6.1.3 Gradina. Without limiting the effect of any
other provision of this Aqreement, the Developer will have the
right to begin grading the Property at any time after the
Effective Date hereof, subject only to securing the prior
approval of the City, and such approval will not be denied based
on season or date, provided that the Developer aqrees to comply
with all required precautions, to use due care in its grading
activities and to take reasonable steps to prevent erosion,
slippage and dangerous run off conditions.
7. GENERAL DEVELOPMENT OF THE PROJECT
7.1 Proiect. Except as otherwise provided in this
Agreement, the Development Approval will control the overall
design and Development of the Project and the EIR will control
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 size 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 will be those set forth in this
15
1 Agreement or in the Development Approval. Notwithstanding the
2 limitations of the Development Approval, the Developer may
3 construct up to 287 additional multi-family units in the
4 multi-family zones of the Project , at a density not to exceed 30
5 DU/Acre and at a height not to exceed 3 stories subject to design
6 review by the City.
7 7.2 Effect of Aareement on Land Use Reaulations. In
8 connection with any approval which the City is permitted to give
9 under this Agreement with respect to the Project, or otherwise
l0 under the Existing Land Use Ordinance, the City will exercise its
11 discretion or take action in a manner which is as expeditious as
12 possible and which complies and is consistent with the
" 13 `Development Approval and the standards, terms and conditions
14 contained in this Agreement, and in a manner which will not
15 interfere with the Development of the Project for the uses
16 permitted therein, and to the height, density and intensity
17 specified in this Agreement and in the Development Approval, and
18 at the rate of Development selected by the Developer. Subject to
19 Section 9.3, the City will accept for processing and act on all
20 applications for further land use entitlement approvals which are
21 necessary or appropriate with respect to the Project.
22 7.3 Operatina Memoranda and Amendments. The parties
23 acknowledge that the passage of time may demonstrate that changes
24 are necessary or appropriate with respect to the details of each
25 party' s performance under this Agreement. Because the parties
26 desire to retain a certain degree of flexibility with respect to
27 the details of each party's performance pursuant to this
28 Agreement, if and when the parties find that changes are
16
1 necessary or appropriate, they will, unless otherwise required by
2 law, effectuate such changes or adjustments through operating
3 memoranda approved by the Community Development Director of the
4 City. After execution, each such operatinq memorandum will be
5 attached hereto as an addendum and become a part hereof, and may
6 be further changed from time to time as necessary or appropriate,
7 as provided in this Section. No such operating memorandum will
8 be deemed to be an amendment of this Agreement under Government
9 Code Section 65868 and unless otherwise required by law, no such
10 operating memorandum will require prior notice or hearing.
11 Notwithstanding the foregoing, the following matters will not be
12 considered as appropriate subjects of operating memoranda, but
13 will be considered substantive amendments which must be reviewed
14 by the Planning Commission of the City and approved by the City
15 Council.
16 7.3.1 Alteration of Permitted Uses. Alteration of the
17 permitted uses of the Property.
18 7.3.2 Increase in Density or Intensitv. Increase in
19 the density or intensity of use or number of lots.
20 7.3.3 Increase in Heiaht and size. Increase in the
21 maximum height and size in permitted buildings.
22 7.3.4 Deletion of Reservation Reauirements. Deletion
23 of a requirement forrthe reservation or dedication of land for
24 public purposes, except for minor boundary adjustments approved
25 by the Community Development Director of the City.
26 7.3.5 Sunplemental Environmental Review. Any
27 amendment or change requiring a subsequent or supplemental
28 Environmental Impact Report pursuant to Public Resources Code
17
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Section 21166.
$• RULES REGULATIONS AND OFFICIAL POLICIES
8.1 New Rules. Although the City!s rules and regulations
governing permitted uses of the Property, density of development
and design, improvement and construction will be those rules and
regulations in force on the Effective Date`hereof, this Agreement
will not prevent the City from applying the following new rules,
regulations and policies:__ _ _ _ _ . _. _._____ __. _ __ ,
8.1.1 Processing Fees. Processing fees and charges
imposed by the City to cover the estimated actual costs to the
City of processing applications for development approvals, for
monitoring compliance with any development approval or for
monitoring compliance with environmental impact mitigation
measures.
8•1.2 Procedural Reaulations. Procedural regulations
relating to hearing bodies, petitions, applications, notices,
findings, records, hearings, reports, recommendations, appeals
and any other matter of procedure.
8.1.3 Reaulations Governina Construction Standards.
Regulations governing construction standards and specifications
including, without limitation, the City's Building Code, Plumbing
Code, Mechanical Code, Electrical Cocie and Fire Code, provided
that such construction standards and specifications are applied
on a City-wide basis.
8.1.4 Nonconflictina Reaulations. Regulations which
are not in conflict with the Development Approval or this
Agreement.
8.1.5 Certain Conflictina Reaulations.
Regulations
18
1 which are in conflict with the Development Approval or this
2 Agreement if such regulations have been consented to in writing
3 by the Developer.
4 8.2 Subsequent Actions and Anorovals. In accordance with
5 Government Code Section 65866, thi5 Agreement will not prevent
6 the City, in subsequent actions applicable to the Property, from
7 applying new rules, regulations and policies which do not
8 conflict with those existing rules, regulations and policies set
9 forth in the Development Approval, nor will this Agreement
10 prevent the City from denying or conditionally approving any
11 subsequent development project application on the basis of such
12 existing or new rules, regulations or policies.
13 8.3 State and Federal Laws. If State or Federal laws or
14 regulations enacted after the Effective Date hereof , prevent or
15 preclude compliance with one or more of the provisions of this
16 Agreement, such provisions of this Agreement will be modified or
17 suspended as may be necessary to comply with such State or
18 Federal laws or regulations; provided, however that this
19 Agreement will remain in full force and effect to the extent it
20 is not inconsistent with such State or Federal laws or
21 regulations and to the extent such laws or regulations do not
22 render such remaining provisions impractical to enforce.
23 8.4 Police Power and Taxing Power. The City will not
24 impose, or enact any additional conditions, exactions,
25 dedications, fees or regulations through the exercise of either
26 the police power or the taxing power with respect to the
27 Development of the Project except as provided in the Development
28 Approval or in this Agreement. However, nothing in this
19
1 Agreement will prohibit'the adoption and application of a special
2 tax approved by the City's voters, provided that such tax is
3 imposed on a City wide basis, or future Citywide Development
4 Impact fees.
5 8.5 Life of_SUbdivision or Parcel Maos. Pursuant to
6 Government Code Section 66452.6(a), the term of any subdivision
7 map or parcel map approved with respect to the Project will be
S extended for the term of this agreement.
9 9. COOPERATION AND COVENANT OF FURTHER ASSURANCES
10 9.1 Third Partv Actions. The Developer and the city will
il cooperate in defending any action instituted by any third party
12 challenging the validity of any provision of this Agreement or
13 any action taken or decision made hereunder. Developer agrees to '
14 assume the lead role in defense of any such action or proceeding
15 so as to minimize litigation expenses incurred by the City. In
16 addition, any action instituted by any third party challenging
17 this Agreement or any other permit or approval required from the
18 City or any other governmental entity, for the Development of the
19 Project, will constitute a permitted delay under Section 10."
2o Notwithstanding the foregoing, the filing, of any third party
21 action against the City and/or the Developer with respect to this
22 Agreement or any provision hereof, will not be a reason to delay
23 or stop the Development of the Project (including, without
24 limitation, the processing of any application of the Developer
25 with respect to the Development, the issuance of and building
26 permit or the issuance of any certificate of occupancy) unless
27 the third party obtains a court order preventing such activity.
28 The City will not stipulate to the issuance of any such court
20
1 order. _
2 9.2 Further Assurances. Each party covenants on behalf of
3 itself and its successors and assigns to take all actions and do
4 all things, and to execute with acknowledgments or affidavits if
5 required, any and all documents and writings that may be
6 necessary or proper to achieve the purposes and objectives of
7 this Agreement. Each party will take all necessary measures to
8 see that the provisions of this Agreement are carried out in
9 full.
10 9..3 Processina. Subject to the provisions of this Section,
il upon-satisfactory completion by the Developer of all required
12 preliminary actions and payment of all appropriate filing and
13 processing fees, if any, the City will, in accordance with the
14 Existing Development Approval, diligently prosecute to completion
15 any application for approval which is required by the Developer.
16 Without limiting the effect of the foregoing but also subject to
17 the provisions of this Section, the City will, in accordance with
18 the Existing Development Approval:
19 . ,, 9.3.1 Schedulincr. Schedule, convene and conclude all
20 required public hearings in an expeditious manner.
21 9.3.2 Processina. Process and approve all maps,
22 plans, land.use permits, building plans and specifications and
23 other applications for approval witri respect to the Development
24 of the Project.
25 The Developer will, in a timely manner, provide and/or
26 cause its agents to provide the City with all materials,
27 documents, applications, plans and other information necessary
28 for the City to carry out its obligations hereunder. In order to
21
1 facilitate the City's performance of its obligations pursuant to
2 this Agreement including, without limitation, its obligations
3 pursuant to this Section 9.3, at the request of the Developer,
4 the City will hire such additional personnel as may be necessary
5 to further expedite the scheduling and processing of the
6 Developer's applications with respect to the Project; provided,
7 however that the Developer will pay the entire cost of any such
8 additional personnel and any such additional personnel will be
9 assigned exclusively to the Project.
l0 9.4 Other Governmental Permits. The Developer will apply
11 in a timely manner for such other permits and approvals as are
12 required by other governmental agencies having jurisdiction over
13 the Project or the development of, or provision of services to,
14 the Project. The City will cooperate with the Developer in its
15 efforts to obtain such permits and approvals. In addition, the
16 City will use its best efforts to assist the Developer in
17 coordinating the implementation of the Project with such other
18 governmental agencies.
19 9.5 Financina of Public Facilities and/or Services. The
20 City and the Developer will in good faith use their best efforts
21 to establish one or more community facilities districts,
22 assessment districts, improvement districts, maintenance
23 districts or other public financing mechanisms including, without
24 limitation, one or more community facilities districts pursuant
25 to the Mello-Roos Community Facilities Act of 1982, as set forth
26 in Government Code Section 53311 et seq., for the purpose of
27 financing the planning, design, construction and maintenance of
28 public facilities (including, without limitation, the improvement
22
1 to the School Sites which are referred to in Section 4.1.4 and
2 the improvements to the Community Park site and the Neighborhood
3 Park site which are referred to in Section 4.1.5), including
4 related feeS and the acquisition of land therefor, and/or the
5 provisiOn of public serviceS to the Project, to the maximum
6 extent legally and financially feasible. The parties expect that
7 bonds, assessments, liens or other such financing mechanisms will
8 be issued or levied to provide sufficient funds for the foregoing
9 purposes and the City and the Developer agree that, without the
10 consent of the City, the portion of average assessed real
11 property ealues in the Project allocated to real property taxes
12 and aggregate debt service may go up to but will not exceed 2% of
13 average assessed real property values in the Project, and the
14 City will take no action to limit such portion to less than 2~ of
15 the average assessed real property values in the Project.
16 Although the parties will in good faith use their best efforts to
17 maximize the extent of structures, improvements and facilities
18 comprising the Project, which will be financed through the use of
19 such;:public financing mechanisms, the parties acknowledge that it
- 20 may not be legally or financially feasible to finance all of such
21 structures,.improvements and facilities-through the use of such
22 public financing mechanisms. Therefore, to the extent that the
23 public improvements or public services required by the City with
24 respect to the Project are in excess of the needs and demands of
25 the Project and will be utilized by future developments, the City
26 will use its best efforts to cause such future developments to
27 contribute to the costs of such public improvements and public
28 Services (including, without limitation, by participating in one
23
1 or more community'facilities districts, assessment districts,
2 improvement districts,' maintenance districts or other similar
3 Public financing mechanisms) and, from the funds which are
4 generated by such public financing mechanisms, cause appropriate
5 reimbursement, including interest at the legal rate, to be made
6 to the Developer. The City acknowledges that completion of
7 proceedings to establish one or more of such public financing
8 mechanisms is critical to provide the parties with security for •
9 the performance by the Developer of its obligation to cause the
l0 Development of the Project to occur. The Developer understands
il that the City has formed a joint powers authority under the
12 Marks-Roos Local Bond Pooling Act of 1985 known as the Lake
13 Elsinore Public Financing Authority, and that City policy
14 requires all public financing within the City to be funded
15 throuqh the Authority.
16 9.6 Utilities Coordination. The City will use its best
17 efforts to assist the Developer in obtaining all electrical, gas,
18 telephone, cable television and other necessary utility
19 connections required for the Project. Within a reasonable time
20 after request therefor by the Developer, the City will approve
21 all connection and access points for such utilities, if they are
22 in compliance with the Existing Land Use Ordinance.
z3 9.7 Covenant of Good Faith and Fair Dealina. Except as may
24 be required by law, neither party will do anythinq which will
25 have the effect of harming or injuring the right of the other
26 party to receive the benefits of this Agreement and each party
27 will refrain from doing anything which would render performance
28 under this Agreement impossible or impractical. In addition,
24
1 each party will do everything which this Agreement describes that
2 such party will do.
3 9.8 Stenhens Kangaroo Rat. The City will use its best
4 efforts to maximize the amount of/acreage which is released for
5 grading and allocated to the City pursuant to the Riverside
6 County Short-Term Habitat Conservation Plan for the Stephens
7 Kangaroo Rat and will take such steps as may be necessary or
8 appropriate from time to time, to secure such maximum allocation.
9 9.9 Hiahwav 74 Realianment. The Developer will cooperate
10 with the City in forming such Community Facilities Districts,
11 benefit districts and other fair share public financing
12 mechanisms as may be necessary or appropriate to finance the cost
13 of acquiring right-of-way for the realignment of Highway 74 in
14 the proximity of the Property including, without limitation,
15 removing the existing road radius (which does not meet current
16 applicable road standards) and in realigning and improvinq
17 Highway 74 including, without limitation, making any concurrent,
18 required changes to the I-15 interchange, to current applicable
19 standards of the California Department of Transportation.
2o Developer will be required to dedicate and improve any additional
21 land necessary to accommodate Highway 74 improvements along and
22 adjacent to the Property's boundary. If required by the City,
23 the Developer will advance the cost of any feasibility study
24 which is required for such realignment and improvement and the
25 Developer will be reimbursed from the Community Facilities
26 District, benefit district or other fair share public financing
27 mechanism with respect to the same, with interest at the legal
28 rate to the extent that such feasibility study relates to
25
,
1 improvements which are not adjacent to the Property.
2 10. PERMITTED DELAYS
3 The Developer will be excused from performance of its
4 obligations hereunder during any period of delay caused by
5 casualties; acts of God; civil commotion; war; insurrection;
6 riots; strikes; walk outs; picketing or other labor disputes;
7 unavoidable shortages of materials or supplies; damages to work
8 in progress by reason of fire, flood, earthquake or other
9 casualty; litigation which prohibits or delays any aspect o~ the
lo processing or Development of the Project; initiatives or
11 referenda; moratoria; unanticipated restrictions imposed or
12 mandated by governmental entities; or enactment of conflicting
13 City, County, State or Federal laws or regulations or judicial
14 decisions ; or any other cause which is not within the reasonable
15 Control of the Developer. Each party will promptly notify the
16 other party of any delay hereunder as soon as possible after the
17 same has been ascertained, and the term of this Agreement will be
18 extended by the period of any such delay. Notwithstanding
19 Section 13.3, any claim for delay must be presented within 30
20 days of knowledge of the cause of such delay or any entitlement
21 to time extension will be deemed waived.
22 11. ESTOPPEL CERTIFICATES
23 Either party may at any time, and from time to time, deliver
24 written notice to the other party, requesting that the other
25 party certify.in writing to the knowledge of the certifying party
26 that: (a) this Agreement is in full force and effect and is a
27 binding obligation of the certifying party; (b) this Agreement
28 has not been amended or modified, except as expressly identified;
26
1 and, (c) no default in the performance of the requesting party's
2 obligations pursuant to Agreement exists, except as expressly
3 identified. A party receiving a request hereunder will execute
4 and return the requested certificate within 30 days after receipt
5 of the request.
6 1F.. RECORDATION BY CITY CLERK
7 Pursuant to Government Code Section 65868.5, within 10 days
8 after execution of this Agreement by the City, the City Clerk
9 will record a copy in the Records of the Riverside County
10 Recorder. Thereafter, the burdens of this Agreement will be
11 binding upon and the benefits of this Agreement will inure to the
12 parties and their respective successors and assigns.
13 13. DEFAULT
14 13.1 Events of Default. Subject to any written extension
15 of time by mutual consent of the parties, and subject to the
16 provisions of Section 10 regarding permitted delays, the uncured
17 failure of either party to perform any material term or provision
18 of this Agreement will constitute a default. On notice to a
19 party of its failure of performance, such party will have 30 days
20 to cure such failure of performance; provided, however that if
21 the nature of the failure of performance is such that it cannot
22 be cured within such period, then the diligent prosecution to
23 completion of the cure will be deemed to be a cure within such
24 period. Any notice of default given hereunder will specify in
25 detail the nature of the alleged default and the manner in which
26 such default may be satisfactorily cured in accordance with this
27 Agreement. During the time period herein specified for the cure
28 of a failure of performance, the party charged with such failure
27
1 of performance will not be considered to be in default for
2 purposes of termination of this Agreement or for purposes of
3 institution of legal proceedings with respect thereto and, if the
4 Developer is the party that has failed to perform, then the City
5 will not be excused from its performance under this Agreement
6 during that period.
7 13.2 Remedies. Upon the occurrence of a default under this
8 Agreement and the expiration of any applicable cure period, the
9 non-defaulting party will have such rights and remedies against
10 the defaulting party as it may have at law or in equity
11 including, without limitation, the right to terminate this
12 Agreement.
13 13.3 No Waiver. The failure by a party to insist on the
14 strict performance of any of the provisions of this Agreement by
15 the other party will not constitute a waiver of such party's
16 right to demand strict performance by such other party in the
17 future. All waivers must be in writing to be effective or
18 binding on the waiving party and no waiver will be implied from
19 any omission by a party to take action. No express written
20 waiver of any default will affect any other default or cover any
21 other period of time except that specified in such express
22 waiver.
23 13.4 Effect of Termination. Termination of this Agreement
24 by one party due to the default of the other party will not
25 affect any right or duty emanating from any then existing city
26 entitlement or approvals with respect to the Project, but the
27 rights and obligations of the parties will otherwise cease as of
28 the date of such termination. If the City terminates this
28
1 Agreement because of a default of the Developer, then the City
2 will retain any and all benefits includinq, without limitation,
3 money or land received by the City hereunder. If the Developer
4 terminates this Agreement because of a default by the City, then
5 the Developer will be entitled to a return or a refund of all
6 unused benefits and exactions paid, given or dedicated to the
7 City pursuant to this Agreement including, without limitation;
8 any unused part of the DAG referred to in Section 4.1.1.
9 14. INCORPORATION BY REFERENCE
l0 14.1 Recitals. The Recitals in this Agreement are material
11 and are incorporated herein by reference as though fully set
12 forth hereat.
13 14.2 Exhibits. Any Exhibit to this Agreement is
14 incorporated herein by reference as though fully set forth
15 hereat.
16 15. APPLICABLE LAW
17 This Agreement will be construed and enforced in accordance
18 with the laws of the State of California.
19 16. N0 JOINT VENTURE PARTNERSHIP OR THIRD PARTY BENEFICIARY
20 The City and the Developer hereby renounce the existence of
21 any form of joint venture or partnership between them and
22 expressly agree that nothing contairied herein or in any document
23 executed in connection herewith will be construed as making the
24 City and the Developer joint venturers or partners. It is
25 understood that the contractual relationship between the City and
26 the Developer is such that the Developer is an independent con.
27 tractor and not an agent of the City. Furthermore, this
28 Agreement is not intended or construed to create any third party
29
1 beneficiary rights in any person who is not a party to this
2 Agreement.
3 17. ADDRESSES FOR NOTICES
4 Any notice or other communication to either party under this
5 Agreement must be in writing and must be given by delivering the
6 same to such party in person or by sending the same by certified
7 or registered mail, return receipt requested, or by overnight
S mail delivery service, with all costs prepaid, to the following
9 addresses:
10 City
ll City of Lake Elsinore
130 South Main street
12 Lake Elsinore, CA 92330
Attn: city Manager
13
Develooe'r
14
LD Johnson Companies
15 180 H, Riverview Drive
Suite 290
16 Anaheim Hills, CA 92808
Attn; william H. Frey
17
and
18
LD Johnson Companies
19 1980 Post Oak Blvd.
Suite 1610
20 Houston, TX 77056
Attn: William H. Frey
21
With a Copy To: Gresham, Varner, Savage,
ZZ Nolan & Tilden
600 H. Arrowhead Avenue
23 Suite 300
San Bernardino, CA 92401
z4 Attn: Mark H. Ostoich, Esq.
25 18. COVENANTS RUNNING WITH THE LAND
26 All of the terms, provisions, covenants and obligations
27 contained in this Agreement will be binding upon the parties and
28 their respective successors and assigns, and all other persons or
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1 entities acquiring all or any.part of the Property, and will
2 inure to the benefit of such parties and their respective
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successors and assigns. All the provisions of this Agreement
will be enforceable as equitable servitudes and constitute
covenants running with the land pursuant to applicable law
including, without limitation, California civil Code Section
1468. Each covenant to or refrain from doing some act on the
Property is expressly for the benefit of the Property and is a
burden upon the Property, runs with the Property and is binding
upon each party and each successive owner during its ownership of
the Property or any part thereof, and will benefit each party and
its property hereunder, and each other party succeeding to an
interest in the Property. Notwithstanding the foregoing, upon
the sale or lease,for more than 1 year, of a dwelling unit,
office or commercial or industrial space by the Developer to a
member of the public, but not upon the bulk sale thereof for
resale to the public, such residential unit, office, commercial
or industrial space will ba automatically released from the
terms, provisions, covenants and obligations of this Agreement,
without the necessity of the City or the Developer executing or
recording any specific instrument of release.
19. CONSISTENCY FINDING
By approving and executing this Agreement, the City finds
that its provisions are consistent with the City's General Plan
and with the Specific Plan, and the City further finds and
determines that execution of this Agreement is in the best
interests of the public health, safety and general welfare of the
City's present and future residents, property owners and
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1 taxpayers.
2 20. TERMS AND CONSTRUCTION :
3 20.1 Severabilitv. If any term, provision, covenant or
4 condition of this Agreement is determined to be invalid, void or
5 unenforceable by judqment or court order, then the remainder of
6 this Agreement will remain in full force and effect, unless
7 enforcement of this Agreement, as so invalidated, would be
8 unreasonable or grossly inequitable under all the circumstances
9 or would frustrate the stated purposes of this Agreement.
10 20.2 Entire Aareement. This Agreement contains all the
il representations and constitutes the entire agreement between the
12 City and the Developer, Any prior correspondence, memoranda,
13 agreements, warranties or representations are superseded in total
14 by this Agreement.
15 20.3 Sianature Pages. For convenience, the signatures of
16' the parties may be placed and acknowledged on separate pages and,
17 when attached to this Agreement, will constitute this document as
18 one complete Agreement.
19 20.4 Time. Time is of the essence of this Agreement and of -
20 each and every term and condition hereof.
21 21. CONSENT OF OTHER PARTIES
ZZ The Developer may, at its discretion, elect to have other
23 holders of legal, equitable or beneficial interests in the
24 project, the Property or parts thereof, acknowledge and consent
25 to the execution and recordation of this Agreement by executing
26 an appropriate instrument therefor. It is understood by the
27 parties that the execution of such document by other holders of
28 legal, equitable or beneficial interests in the Project is not a
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1 condition precedent to this Agreement.
2 22. ASSIGNMENT AND NOTICE
3 The Developer will have the right, from time to time, to
4 assign or transfer all or any part of its interest, rights or
5 obligations under this Agreement to third parties acquiring an
6 interest or estate in the Project, the Property or parts thereof
7 including, without limitation, purchasers pr lonq-term ground
8 lessees of individual lots, parcels or any building located
9 within the Project; provided, however that the assignee or
10 transferee agrees to assume the Developer's obligations under
11 this Agreement. Although the approval of the City will not be
12 required for any such assignment or transfer, the Developer will
13 give prior written notice to the City of its intention to assign
14 or transfer any of its interest, rights or obligations under this
15 Agreement and any failure by the Developer to give such notice
16 will be curable in accordance with the provisions of Section 13.
17 The express assumption of any of the Developer's obligations
18 under this Agreement by its assignee or transferee will thereby
19 relieve the Developer of any further obligations under this
20 Agreement. Notwithstanding the foregoing, the Developer will
21 have.no obligation whatsoever to provide any notice to the City
22 when-it intends to assign an interest in this Agreement and/or
23 the Property and the Project in connection with any transaction
24 which is entered into for the purpose of providing equity and/or
25 financing with respect to the Property and/or the Project.
26 23. ENCUMBRANCES AND RELEASES ON REAL PROPERTY
27 23.1 Discretion to Encumber. The parties agree that this
28 Agreement will not prevent or limit the Developer in any manner,
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1 at the Developer's sole discretion, from encumbering the
2 Property, or any part of the same including, without limitation,
3 improvement thereon, by any mortgage, deed of trust or other
4 security device securing financing with respect to the Property
5 or the Project. The City acknowledges that the lenders providing
6 such financing may require certain modifications and the City
7 agrees, upon request from time to time, to meet with the
8 Developer ana/or the representatives of such lenders to negotiate
9 in good faith regarding any such request for modification. The
l0 City further agrees that it will not unreasonably withhold its
11 consent to any such requested modification so long as the
12 modifications do not materially alter this Agreement to the
13 detriment of the City.
14 23.2 Entitlement to Written Notice of Default. Any lender
15 of the Developer which has requested notice in writing received
16 by the City, will be entitled to receive written notification
17 from the City of any uncured default by the Developer in the
18 performance of the obligations of the Developer under this
19 Agreement.
20 23.3 Prooertv Subiect to Pro Rata Claims. Any mortgagee or
21 beneficiary which comes into possession of the Property or any
22 part thereof, pursuant to foreclosure of the mortgage or deed of
23 trust, or deed in lieu of such foreclosure, will take the
24 Property or part thereof, subject to any pro rata claims for
25 payments or charges by the City against the Property or part
26 thereof secured by such mortgage or deed of trust, which accrued
27 prior to the time that such mortgagee or beneficiary comes into
28 possession of the Property or part thereof.
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1 23.4 Releases. The City hereby covenants and agrees that,
2 upon completion of the public improvements which are included
3 within the Project and payment of all fees required under this
4 Agreement with respect to the Property, the City will execnte and
5 deliver to the Riverside County Recorder, an appropriate release
6 of the Developer, the Property and the Project from further
7 obiigations under this Agreement, in form and substance
8 acceptable to the Riverside County Recorder, or as may otherwise
9 be necessary to effect such release.
10 24. CONSTRUCTION. NUMBER AND GENDER
il This Agreement will be construed as a whole according to its
12 common meaning and not strictly for or against either party in
13 order to achieve the objectives and purposes of the parties
14 hereunder. Whenever required by the context of this Agreement,
15 the singular will include the plural and vice versa, and the
16 masculine gender will include the feminine and neuter genders.
17 In addition "will" is the mandatory and "may" is the permissive.
18 25. INSTITUTION OF LEGAL ACTION
19 In addition to any other rights or remedies, either party
20 may institute legal action to cure, correct or remedy any uncured
21 default, to enforce any covenants or agreements herein, to enjoin
22 any threatened or attempted violation thereof or to obtain any
23 remedies consistent with the purpose of this Agreement. In the
24 event of any such legal action involving or arising out of this
25 Agreement, the prevailing party will be entitled to recover from
26 the losing party, reasonable litigation expenses, attorneys' fees
27 and costs incurred. The parties acknowledge that if a breach of
28 this Aqreement by the City occurs, irreparable harm is likely to
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1 occur to the Developer and damages may be an inadequate remedy.
2 Therefore, to the extent permitted by law, the parties agree that
3 specific enforcement of this Agreement by the Developer is an
4 appropriate and available remedy, in addition to any and all
5 other remedies which may be available to the Developer under law
6 or at equity.
7 26. INSURANCE
8 The Developer agrees to and will hold the City, its
9 officers, agents, employees and representatives harmless from
10 liability for damage or claims for damage for personal injury,
11 including death and claims for property damage which may arise
12 out of the direct or indirect operations of the Developer with
13 respect to the Project, to the extent of the insurance described
14 below, To the same extent, the Developer agrees to and will
15 defend the City and its officers, agents, employees and
16 representatives from actions for damages caused by or alleged to
17 have been caused by reason of the Developer's activities with
18 respect to the Project.
19 This "hold harmless" agreement applies to all damages and
20 claims for damages suffered or alleged to have been suffered by
21 reason of the operations referred to in this Section,
22 Before beginning work on the Project, the Developer will
23 obtain the insurance required under this Section and receive the
24 approval of the City Attorney as to form, content, amount and
25 carrier and the Developer will maintain such insurance throughout
26 the term of this Agreement. The insurance wi11 extend to the
27 City, its elective and appointive boards, commissions, officers,
28 agents, employees and representatives and to the Developer. In
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P
PROPERTY
EXHIBIT "A"
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addition, the Developer will furnish to the City, before
beginning work on the Project, a certificate of insurance
constituting satisfactory evidence of the insurance required and
providing that each carrier is required to give the.city at least
II 10 days prior written notice by certified mail to the city Hall,
of the cancellation or reduction in coverage of any insurance.
26.1 Compensation Insurance. The Developer will maintain
workers Compensation Insurance for all persons employed by the
Developer at the site of the Project. The Developer will require
each contractor and subcontractor to provide Workers Compensation
Insurance for their respective employees. The Developer agrees
to indemnify the City for damages resulting from the failure of
the Developer to take out and maintain such insurance.
26.2 Public Liabilitv and Propertv Damaae insurance. The
Developer will maintain public liability insurance in an amount
not less than $1,000,000.00 for injuries (including death) to any
one person and in an amount not less than $1,000,000.00 on
account of any one occurrence; and property damage insurance in
an amount not less than $100,000.00 for damage to the property of
each covered person on account of any one occurrence.
APPROVED AS TO FORM & LEGALITY:
CITY
CITY OF LAKE ELSINORE, a
mun ipal eorporation and
_ z- pol~~ical subdivision of the
, CITY Ai v~'.'~f~ Std~`~~of C~lifo(r~ia ~/
v BS'' -~
Mayo~
EST:
i i F~'.~~~'e ,~AA~~,~
City-Clerk
DEVELOPER
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1
STATE OF CALIFORNIA )
COUNTY OF Riverside ~ ss.
RIALTO DEVELOPMENT CORPORATION,
a Texas corporation, doing
business as LD JOHNSON COMPANIES
By:~L~--
Its
On June 20 Z99a , 1990, before me, the
undersigned, a Notary Public in and for said State and County,
personally appeared William H. Frey
personally known to me or proved to me on the basis of
satisfactory evidence to be the person who executed the within ,
instrument as thevice Presnf the Corporation that executed the
within instrument and acknowledged to me that such corporation
executed the within instrument pursuant to its Bylaws or a
resolution of its Board of Directors.
wITNESS my hand and official sea
SEAL:
.w••~y
~~ ~•~' , OFFICIq~
ADR~A L
~°.~;;~;;,; E[ BRYNING
M1JOTARYPU
eu
a, ~~".="~
` CAUFOR
c - Nia
RIVERSIDE COUNry
_
- My co~'~m, exp'res hYAR 8, 1993
- ..__-----_
~ e
/ ~
Notary Public ' and fo said
State and Coun y
39