HomeMy WebLinkAboutOrd. No. 1992-938ORDINANCE NO. 938
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY
OF LAKE ELSINORE, CALIFORNIA, APPROVING A
DEVELOPMENT AGREEMENT WITH NORTH PEAK PARTNERS
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 North Peak Partners
~._ on August 19, 1992, and found that the Development Agreement is
i consistent with the City's General Plan; and
i
WHEREAS, the City Council of the City of Lake Elsinore held a
duly noticed public hearing on the Development Agreement on August
25, 1992, and found that (1) the Development Agreement is
consistent with the City's General Plan and the North Peak Specific
Plan, and; (2) the previously certified Environmental Impact Report
prepared for the North Peak 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 North Peak Partners, 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 25th day of August, 1992, upon
the following vote:
AYES: Councilmembers: ALDNGI, CHERVENY, DOMINGUEZ, WASHBURN
NOES: Councilmembers: NONE
ABSENT: Councilmembers: NONE
ABSTAIN: Councilmembers: WINKLER
PASSED, APPROVED AND ADOPTED this 8th day of September, 1992,
upon the following vote:
AYES: Councilmembers: ALDN~I, CHERVEPIY, DDMINGUEZ, 41ASHBURN
NOES: Councilmembers: NONE
ABSENT:
Councilmembers:
Councilmembers:
APPROVED AS
FORM AND LEGALITY:
y attorney
Elsinore
(SEAL)
RECORDING REQUESTED BY AND )
WHEN RECORDED MAIL TO: )
Thomas A. May, Esq. ~
Luce, Forward, Hamilton & Scripps )
4250 Executive Square, Suite 700 )
La Jolla, California 92037 )
DEVELOPMENT AGIkFRMF.NT
BETWEEN
THE CITY OF LAKE ELSINORE
AND
NORTH PEAK PARTNERS, LP.
FOR
NORTH PEAK
DATED: August 25, 1992
9032150/September 4, 1992
EXECUTION COPY
TABLE OF CONTENTS
Pace
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1. PARTIES AND DATE .... ............................... ~ ... 1
2. DEFINITIONS .. 1
.............................................
3. RECITALS ............................. 4
.....................
3.1 Property ............................................... 4
3.2 Legal Authority .......................................... 4
3.2.1 Approval of Development Agreement .................... 5
3.3 Operative Upon Annexation ................................ 5
3.4 Additional Lands .....................:......
.. 5
.
..........
3
5 Consistenc
Fi
di
.
y
n
ng ....................................... 5
3.6 Status of Project ......................................
.. 6
.
3
7 Consideration 6
.
...........................................
4. DEVELOPER PROVIDED AMENITIES ........................... 6
4.1 Description of Amenities ................................... 6
4.1.1 Development Agreement Fee .......................... 7
4.1.2 Feasibility Studies ................................... 8
4.1.3 School Sites ....................................... 9
4.1.4 Park Sites ....................... 9
..................
(a) PhaseIPazk .................................. 9
(b) Phase III Park ................................ 9
(c) Phase IV Park ............................... 10
(d) Nature Pazk ................................. 10
4.1.5 Fire Station ....................................... 11
4.1.6 Affordable Housing ................................. 11
5. DURATION OF AGREEMENT ......... ..................... 12
5.1 Term ............................
. 12
.
...................
5.2 Scheduling ............................................. 12
5.3 Certification of Completion ................................ 13
5.4 Termination ......................... ................ 13
5
5 Periodic Review 13
. ........................................
6. VESTED RIGHT ............................................ 15
6.1 Vesting ............................................... 15
6.1.1 No Conflicting Enactments ........................... 15
6.1.2 Citizen Initiative ................................... 16
6.1.3 Grading ......................................... 16
6.2 Benefit of an Earlier Vesting ............................... 16
_.....
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TABLE OF CONTENTS
(continued)
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7. GENERAL DEVELOPMENT OF THE PROJECT .................. 16
7.1 Project ............................................... 16
7.2 Phasing of Developments .................................. 17
7.3 Reservations or Dedications ................................ 17
7.4 Operating Memoranda and Amendments ............. ....... 17
7.4.1 Alteration of Permitted Uses .......................... 18
7.4:2 Increase in Density or Intensity ........................ 18
7.4.3 Increase in Height and Size ........................... 18
7.4.4 Deletion of Reservation Requirements .................. 18
7.4.5 Supplemental Environmental Impact Reports ............. 18
8. RULES, REGULATIONS AND OFFICIAL POLICIES ............... 18
8.1 Effect of Agreement on Land Use Regulations ................. 18
8.2 New Rules ............................................ 19
8.2.1 Processing Fees .................................... 19
8.2.2 Procedural Regulations .............................. 19
8.2.3 Regulations Governing Construction Standazds ............ 19
8.2.4 Certain Conflicting Regulations ........................ 19
8.2.5 Non-Conflicting Regulations .......................... 19
8.3 Police Power and Taxing Power ............................. 20
8.4 Life of Subdivision or Parcel Maps ........................... 20
8.5 State and Federal Laws ................................... 20
8.6 Unforeseen Circumstances ................................. 21
9. COOPERATION AND COVENANT OF FURTHER ASSURANCES .... 22
9.1 Third Party Actions .......................... 22
9
2 ............
Further Assurances
.
9.3 ......................................
Processing 22
23
.............................................
9.3.1 Scheduling ......................... 23
..............
9
3
2 Processin
9.4 .
.
g ........................................
Other Governmental Permits .. 23
23
9.5 .............................
Financing of Public Facilities and/or Services ................... 23
9.6 Utilities Coordination 24
9.7 ....................................
Covenant of Good Faith and Fair Dealin 24
9.8 g .....................
Stephens' Kangazoo Rat .................. 25
9.9 ................
Highway 74 Realignment .................................. 25
9.10 City Acquisition of Rights-of-Way ........................... 26
10. PERMITTED DELAYS ....................................... 26
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TABLE OF CONTENTS
(continued)
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11. ESTOPPEL CERTIFICATES ................................... 26
12. RECORDATION BY CITY CLERK .............................. 26
13. DEFAULT AND REMEDIES .................................. 27
13.1 Events of Default ....................................... 27
13.2 Termination ........................................... 27
13.3 Default by City ......................................... 27
13.4 No Waiver .........................:.................. 28
13.5 Effect of Termination .............................. . . ~R
13.6 Institution of Legal Action ................................. 28
14. CONSISTENCY FINDING ..................................... 28
15. CONSENT OF OTHER PARTIES ............................... 28
16. ASSIGNMENT AND RELEASE ................................. 29
16.1 Transfer and Assignments of Rights and Interests ................ 29
16.1.1 Rights and Interests Appurtenant ...................... 29
16.1.2 Allocation of Density ................................ 29
16.1.3 Subject to Terms of Agreement ........................ 30
16.1.4 Release of Developer ............................... 30
16.2 Releases Upon Partial or Total Completion of Project ............ 31
16.3 Releases Upon Sale or Lease to the Public .................... 31
17. ENCUMBRANCES ON REAL PROPERTY; MORTGAGEE
PROTECTION
. 31
17.1 .
............................................
Discretion to Encumber ...................... 31
17.2 .............
Mortgagee Protection .............................. 32
17.3 ......
Mortgagee Not Obligated ................................ 32
17.4 .
Notice of Default to Mortgagee; Right of Mortgagee to Cure ....... 32
17.5 Banl~uptcy ............................................ 32
18. INSURANCE ....... .................................. 33
18.1 Hold Harmless .................................... 33
18.1.1 Compensation Insurance ............................. 33
18.1.2 Public Liability and Property Damage Insurance ........... 33
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TABLE OF CONTENT'S
(continued)
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19. GENERAL PROVISIONS ...................................... 34
19.1 Development Exactions ................................... 34
19.2 Recitals ............................................... 34
19.3 Exhibits ............................................... 34
19.4 Applicable Law ..................... .................. 34
19.5 No Joint Venture, Partnership or Third Party Beneficiary .......... 34
19.6 Notices ............................................... 34
19.7 Severability ............................................ 35
19.8 Entire Agreement ....................:.................. 35
19.9 Signature Pages; Counterparts .............................. 35
19.10 Time ................................................. 35
19.11 Captions .............................................. 35
19.12 Construction, Number and Gender .......................... 36
TABLE OF EXHIBITS
Exhibit Description
A Legal Description of Property
B Legal Description of Exchange BLM Land
C Legal Description of Additional Lands
D Parks Concept Plan
E Conditions to Approval of SpeciSc Plan 90.2
F Feasibility Study Credits
Reference
§ 2.26
§ 2.14
§ 2.24
§ 2.21
§ 2.27
§ 4.1.2(c)
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DEVELOPMENT AGREEMENT
BETWEEN.
THE CITY OF LAKE ELSINORE
AND
NORTH PEAK PARTNERS, L.P.
FOR
NORTH PEAK
1. PARTIES AND DATE
The parties to this Development Agreement ("Agreement") are the City of Lake
Elsinore, California, a municipal corporation ("City"), and North Peak Partners, L.P., a
California limited partnership ("Developer"). The project to which this Agreement applies
is commonly known as North Peak. This Agreement is made and entered into on August 25,
1992 (the "Approval Date").
2. DEFINITIONS
2.1 "Agreement" means this Development Agreement.
2.2 "Approval Date" means the date this Agreement is first approved by the
City Council. This Agreement shall be dated as of the Approval Date.
2.3 "CEQA" means the California Environmental Quality Act of 1970
(California Public Resources Code Section 21000 et sec ..) and the state CEQA Guidelines
(California Code of Regulations, Title 14, Section 15000 et sec ..).
2.4 "City" means the City of Lake Elsinore, California, a municipal corporation,
including its officials, officers, employees, commissions, committees and boards.
2.5 "City Council" means the duly elected City Council of the City.
2.6 "Community Park" means any of the three active use parks designated in
the Specific Plan, for the enjoyment of residents of the Property, as well as residents of areas
outside the Property, totalling 49.0 acres, which are individually referred to as the "Phase I
Park" of 14 acres, the 'Those III Park" of 17 acres and the "Phase IV Park" of 18 acres.
2.7 "Developer" means North Peak Partners, L.P., a California limited
partnership -and its successors in interest to all or any part of the Property except as
expressly limited elsewhere in this Agreement.
2.8 "Development" means the subdivision and sale of land and construction
and/or installation of structures, improvements and facilities comprising the Project (and the
obtaining of any Development Approvals required for such activities) as set forth in this
Agreement including, without limitation, grading, construction and public financing of
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infrastructure and public facilities related to the Project (whether located within or outside
the Property), the construction of private and/or public buildings, both residential and non-
residential, and the installation of landscaping. "Development" does not include the
maintenance, repair, reconstruction or redevelopment of any building, structure,
improvement or facility after the construction and completion thereof. ~
2.9 "Development Approvals" means zoning, site specific plans, maps, permits,
and other entitlements to use of every kind or nature which have been or may be approved
or granted by the City in connection with the Development of the Property, including but
not limited to general plan amendments, specific plans and amendments thereto, EIRs,
negative declarations, categorical or statutory exemptions, site plans, development plans,
tentative and final subdivision tract maps, vesting tentative maps, parcel maps, conditional
and special use permits, grading and building permits, and other similar permits, maps, plans,
authorizations, licenses and entitlements.
.2.10 "Development Exaction" means any requirement of City or other public
entity controlled by the City in connection with or pursuant to any land use regulation or
Development Approval for the dedication of land, the financing or construction of
improvements or public facilities or of private facilities for public use, or the payment of
money (whether characterized as fees, taxes, special taxes or otherwise) in order to lessen,
offset, mitigate or compensate for the impacts of development on the environment or other
public interests.
2.11 "Development Impact Fee" means any fee, charge, dedication of property
without payment or other exaction adopted citywide that relates to the provision of public
infrastructure, facilities or services which is applied to all development projects in the City
and which is not subject to abatement or reduction.
2.12 "Effective Date" means the later to occur of (a) the effective date of the
City ordinance authorizing execution of this Agreement, or (b) the date of adoption of the
last official action requued to annex all of the area described in the Specific Plan into the
City in the manner provided by law. The Effective Date of this Agreement is October 8,
1992.
2.13 "EIR" means an environmental impact report .for the Project certified by
the City Council on February 12, 1991 pursuant to Resolution No. 91-2 in accordance with
the provisions of CEQA.
2.14 "Exchange BLM Land" means the approximately one hundred sixty (160)
acre area in Phasing Area II, which is more. particularly described in Exhibit "B" hereto, that
is not presently owned by Developer but may be acquired by Developer and added to the
area subject to this Agreement pursuant to Section 3.4.
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2.15 "Existing Development Approvals" means those Development Approvals
in effect on the Approval Date of this Agreement with respect to the Property, including but
not limited to the Specific Plan, E1R and Prezoning Approval.
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2.16 "Existing Land Use Regulations" means the Existing Development
Approvals and, to the extent applicable and not inconsistent with the Existing Development
Approvals, the City's rules, regulations, and official policies governing development, density,
permitted uses, growth management (including but not limited to regulation of the rate of
development, relative quality of development or facilities level of service standazds),
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, which are in effect as of the
Approval Date hereof.
2.17 "Government Code" means the California Government Code, as amended.
2.18 "Index" means the Engineering News Record Construction Cost Index (20-
City Average) published by McGraw-Hill Inc., or if such Construction Cost Index ceases to
be published, then such other index as the City and Developer may reasonably agree upon
as a measure of the change in costs of construction of public improvements.
2.19 "LAFCO" means the Riverside County Local Agency Formation
Commission or any successor thereto regarding annexation.
2.20 "Mortgage" means a mortgage, deed of trust, sale and lease back
arrangement or other transaction in which the Property, or a portion thereof or an interest
therein, is pledged as security, contracted in good faith and for fair value.
2.21 "Mortgagee" means the holder of the beneficial interest under a Mortgage
or the owner of the Property, or interest therein, under a Mortgage.
2.22 "Nature Pazk" means the approximately 230 acre nature park designated
in the Specific Plan which shall be owned and maintained by entities other than the City
(including City's Landscaping and Lighting District formed pursuant to Resolution No. 88-
27).
2.23 'Pazks Concept Plan" means the concept plan for pazk improvements
included as Exhibit "D" to this Agreement.
2.24 "Prezoning Approval" means the approval on February 12,1991 of rezoning
of the Project Area to SPA (Specific Plan Area) pursuant to the City's Ordinance No. 909
adopted by the City Council on February 12, 1991.
2.25 'Phasing Area" means an area shown in the phasing maps that are included
in Article 18 of the Specific Plan. The Specific Plan designates Phasing Areas I, II, III, TV
and V.
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2.26 "Potential Additional Areas" means the approximately thirty five ~35) acre
area in Phasing Area V, which is more particularly described in Exhibit "C" hereto, and the
out parcels indentified as A-1, A-2 and A-3 in the EIR that aze not presently owned by
Developer but may be acquired by Developer and added to the area subject to this
Agreement pursuant to Section 3.4.
2.27 "Project" means the Development of the Property contemplated by the
Existing Development Approvals and this Agreement and the Specific plan.
2.28 "Property" means the real property which is the subject of this Agreement
and which is described in Exhibit "A" hereto. The Property may also include the Exchange
BLM Land and/or the Potential Additional Areas as provided in Section 3.4.
2.29 "Specific Plan" means the North Peak Specific Plan approved by the City
Council on February 26, 1991 pursuant to Ordinance No. 908, including those portions of
the Mitigation Monitoring Program adopted therewith that are applicable to the Property
and the Conditions of Approval for Specific Plan 90-2 attached as Exlu'bit "E" hereto.
2.30 "SR 74 Cooperative Agreement" means that certain Cooperative Agreement
for the Widening and Improvement of a Portion of State Route 74, that is proposed to be
entered into between the City and the Riverside County Transportation Commission.
2.31 "Substantial Compliance" 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.
2.32 '"Turn Key" means the design, engineering and construction relating to
completion and acceptance of all improvements to a Community Pazk in accordance with
Existing Land Use Regulations and dedication of such improvements to the City provided
that such improvements and the costs of the design, engineering and construction relating
to completion and acceptance of such improvements shall not exceed the limitations
provided in Section 4.1.4.
3. RECITALS
3.1 Pro a .The Developer is the fee owner of the Property which is more
particularly described_in Exhibit "A" hereto.
3.2 Legal Authority. Government Code Section 65864 et ec,~c .. authorize the City
to enter into development agreements in connection with the development of real property
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in the City or its sphere of influence. This Agreement is made and entered into pursuant
to those provisions of .state law and city ordinances, policies, regulations and provisions for
consideration of development agreements.
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3.2.1 Approval of Development Agreement. On August 19, 992, 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 Agreement. The City Council, after
providing public notice as required by law, similarly held a public hearing on August 25,
1992. On August 25, 1992 (the "Approval Date"), the City Council adopted an Ordinance
No. 938 approving this Agreement, second reading of the Ordinance was approved
September 8, 1992 and Ordinance No. 938 thereafter took effect on October 8, 1992 (the
"Effective Date").
3.3 Operative Upon Annexation. A substantial portion of the Property is within
the City's sphere of influence and all of the Property is the subject of proceedings before
LAFCO for incorporation into the City. This Agreement shall not become operative unless
and until annexation proceedings annexing the Property into the City are completed on or
before January 1, 1993 or any extension of that date as City and Developer may agree upon.
If annexation of the Property into the City is not completed by such date or any agreed
extension thereof, then this Agreement shall be null and void and the parties and Property
shall have no further rights and obligations hereunder. In such event, City will join in any
release or other document requested to clear title to the Property. Annexation of the
Property into the City was completed August 11, 1992 by City Council adoption of
Resolution No. 92-57 ordering territory designated Annexation No. 54 annexed into the City.
3.4 Additional Lands. Although Developer does not presently hold a legal or
equitable interest in the Exchange BLM Land or the Potential Additional Areas, it is
anticipated that Developer may acquire a legal or equitable interest in such lands or portions
thereof which shall thereupon become subject to the terms and conditions of this
Agreement. The parties shall execute and record such documents as may be necessary to
subject those properties to the encumbrance of this Agreement. The addition of those
properties to the Property which is the subject of this Agreement shall be treated as an
operating memorandum under Section 7.3 and shall not constitute an amendment to this
Agreement.
3.5 Consistency Finding. By approving and executing this Agreement, the City
finds that its provisions aze 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 taxpayers. The Development has been analyzed and
reviewed by the City as part of its process of granting development approvals, in view of the
enacted land use standazds and policies of the City embodied in its Existing Land Use
Regulations and in view of State law including, without limitation, CEQA.
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3.6 Status of Project. The Developer is in the process of planning, financing
and preparing for the Development, which is a lazge scale, mixed use, phased development
in accordance with the Specific Plan of not more than 4,621 dwelling units and related
schools, open space, recreational and commercial uses on approximately 1,965 acres to be
annexed into the City and which is more particulazly descn'bed in the Specific Plan and the
EIIt. Pursuing the Development as contemplated by the Specific Plan and providing the
mitigation set forth in the EIR will require major investment and expenditures by the
Developer in public facilities and on-site and off-site improvements.
3.7 Consideration. The City has determined that entry into this Agreement will
further the goals and objectives of the City's land use planning policies, by eliminating
uncertainty in planning for the orderly development of the Project, to the end that adequate
long term plans regarding the provision of necessary infrastructure for existing and future
city residents can be developed and implemented.. The City has further determined that
entry into this Agreement will provide the maximum effective utilization of the resources of
the City, at the least economic cost to its citizens. Without limiting the generality of the
foregoing, the benefits conferred pursuant to this Agreement (including but not limited to
the matters set forth in Section 4 below) will help increase traffic capacity for the road
system of the City and will facilitate the installation of certain other vital public
improvements, all of which will significantly promote the health, safety and general welfare
of present and future residents of the City.
In exchange for these benefits to the City and its residents, the Developer wishes
to receive the assurances permitted by State law that the Developer may proceed to develop
the Project in accordance with the Specific Plan, and at a rate of development of its
choosing, subject to the terms and conditions of this Agreement. The rights, duties,
obligations and assurances provided by the City and the Developer to each other in this
Agreement are being provided pursuant to and as contemplated by State law, aze bargained
for and in consideration for the undertakings of the parties, and are intended to be-and have
been relied upon by the parties to their detriment, such that the Developer will be deemed
to have a vested interest in the Specific Plan, which will be the controlling land use plan for
the Project.
4. DEVEI.oPER PROVIDED AMENITIES
4.1 Description of Amenities. The following amenities, improvements and
payments provided by the Developer and others during the planning, financing and
Development of the Project, will result in substantial general public benefit to be delivered
as part of the consideration for City's entry into this Agreement. That additional
consideration is descn'bed in detail in the following subsections of this Section 4 and is
summarized as follows:
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3,600,000 + Index
1,500,000 .. + Index
100,000 + Index
225,000
7,162,550 est.
1,021,000
Turn Key Park Improvements
Turn Key Fire Station Improvements
Community Based Policing
Feasibility Study Payments ~i
DAG Fees (based on an average $1,550/du for 4,621
dwelling units.)
DAG Fees ($1,000/du extra for units 3,601 through 4,621)
$ 13,608,550 Total Additional Consideration (est.)
The above amounts are an estimate of the additional consideration received as a result of
its entry into and performance of this Agreement. As provided in the following detailed
provisions the actual amount will increase or decrease depending on inflation factors (the
Index), total units built and the time of construction.
4.1.1 Development Agreement Fee. At the time of issuance of a residential
building permit for construction within the Property, the party seeking such permit shall pay
to the City a Development Agreement Fee ("DAG") in an amount per residential unit as
shown below plus an additional $1,000 per residential unit for each of the 3,601st through
4,621st units for which building permits are isued for construction on the Property. The
amount of the DAG payable for each residential building permit will be determined by the
date on which application for such building permit is made to the City.
Residential Building Permit
Application Date
DAG Amount'
Prior to 3rd Anniversary of the Effective Date $1,000 per dwelling unit
Prior to 6th Anniversary of the Effective Date $1,250 per dwelling unit
Prior to 9th Anniversary. of the Effective Date $1,500 per dwelling unit
Prior to 12th Anniversary of the Effective Date $1,750 per dwelling unit
Prior to 15th Anniversary of the Effective Date $2,000 per dwelling unit
Prior to 18th Anniversary of the Effective Date $2,250 per dwelling unit
Prior to 20th Anniversary of the Effective Date $2,500 per dwelling unit
'Add $1,000/du for 3,601st through 4,621st dwelling units
For example, a DAG of $1,000 shall be paid for each residential building permit applied for
prior to the 3rd anniversary of the Effective Date, whereas a DAG of $1,250 shall be paid
for residential building permit applied for on or after the 3rd anniversary but prior to the
6th anniversary of the Effective Date. The DAG amount will be increased by $1,000 for the
3,601st through 4,621st units. Thus, if the 3,601st residential building permit is applied for
between the 3rd and 6th anniversary dates of the Effective Date, then the DAG amount for
such 3,601st residential building permit shall be $2,250 ($1,250 + $1,000).
The DAG will constitute the sole DAG that a parry seeking residentialibuilding
permits within the Project will be required to pay. Non-residential development(shall be
exempt from any DAG. The DAG will be used at the City's discretion to fund the cost of
public capital facilities and improvements including, without limitation, park facilities,
recreation facilities and municipal buildings, regardless of the location of those facilities or
their benefit to the Project.
Upon request by the Developer, the City will provide the Developer with a periodic
accounting setting forth the amount of the DAG levied and collected by the City pursuant
to this Agreement.
4.1.2 Feasibili , Studies.
(a) Within six (6) weeks after the Effective Date hereof, the Developer
will pay the sum of $100,000 to the City, which will be used for the purpose of preparing
improvement studies, in coordination with the Riverside County Transportation Commission
and CalTrans, and funding other obligations of the City pursuant to the SR 74 Cooperative
Agreement with respect to the planning and development of SR 74 from Interstate 15 to
Riverside Drive (the "SR 74 Corridor"). Such $100,000 payment shall be reduced by a credit
for any amounts previously expended by Developer for costs and expenses relating to the
SR 74 Cooperative Agreement and the project described therein.
(b) Within six (6) months after the Effective Date, the Developer will
pay an additional sum of $100,000 to the City which will be used by the City to study and
(i) to prepare appropriate reports and documents relating to the annexation into the City
of certain lands commonly known as Part II of the SR 74 Annexation Areas, and (ii) to
prepare studies and implementation documents relating to a benefit assessment district,
bridge and thoroughfare fee district or other appropriate financing mechanisms for the
construction of the SR 74 Corridor project. Such $100,000 payment shall be reduced by a
credit for any amounts previously expended by Developer to the City in connection with the
proposed annexation of the Part II of the SR 74 Annexation Areas.
(c) Any credits for amounts previously expended as of the Approval
Date by Developer for the purposes provided in Sections 4.1.2(a) and (b) above shall be
agreed upon by Developer and the City Manager and attached as Exhibit "F' hereto as of
the Approval Date. Such Exhibit "F' shall be an operating memorandum within the
meaning of Section 7.4 below.
(d) As provided in Section 9.9 below, Developer may advance
$25,000 for State Highway 74 Concept Landscape Plans.
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4.1.3 School Sites. The Developer will reserve for and offer to convey to the
relevant elementary school district,. (i) a school site in Phasing Area I of the Project, (ii) a
school site in Phasing Area III of the Project, which shall be contiguous to the Phase III Park
site referred to in Section 4.1.4(b) and (iii) a school site in Phasing Area 1V of th ~ Project,
which will be contiguous to the Phase N Park site referred to in Section 4.1.4~c). The
Developer will convey such school sites on such terms and conditions as are mutually agreed
between the Developer and the relevant elementary school district. Such reserved
elementary school sites shall be 10.0 net flat usable acres in size if the size and configuration
of such sites is not otherwise provided for in agreements between the Developer and the
relevant elementary school district.
4.1.4 Park Sites. The following provisions regarding park land dedication will
satisfy and exceed the Project's obligations under the Quimby Act or the applicable City
ordinances. In consideration of Developer's expenditures for park improvements as
provided in the following provisions of this Section 4.1.4, the Project shall be exempt from
any other Development Exaction for park land acquisition or improvements.
(a) Phase I Park. Subject to the provisions of this Section
4.1.4(a), the Developer will convey to the City, concurrently with the opening of the first
model complex in Phasing Area I, a Turn Key Community Pazk site in Phasing Area I which
shall include only those types of facilities specified in the Parks Concept Plan; provided,
however, that the Developer will not be required to spend more than the lesser of $100,000
per park acre or $1,400,000 for the entire Phase I Pazk with respect to all of the Phase I
Park facilities, including grading, irrigation, hydroseeding, landscaping and recreational
facilities and related design, engineering and construction costs. The foregoing dollar
amounts shall be adjusted to reflect the percentage increase in the Index between the
Effective Date and the date Developer commences improvements to the Phase I Park. Any
remaining costs of improvement of the Phase I Pazk site will be funded by the City. The
Phase I Park Site shall be developed in accordance with applicable Existing Land Use
Regulations and the Pazks Concept Plan. The precise layout and design of facilities located
within the Phase I Park shall be determined, consistent with the Parks Concept Plan by a
consultant retained by Developer and approved by the City, and City shall approve such
design, within sixty (60) days following recording of the first subdivision map for Phasing
Area I of the Project.
(b) Phase III Park. Subject to the provisions of this Section
4.1.4(b), the Developer will convey to the City, prior to issuance of the 1,900th residential
building permit in the Project, a Turn Key Community Park site in Phasing Area III, which
shall include only those type of facilities specified in the Pazks Concept Plan; provided,
however, that the Developer will not be required to spend more than the lesser of $100,000
per park acre or $1,700,000 with respect to all of the Phase III Pazk facilities, including
grading, imgation, hydroseeding, landscaping and recreational facilities and related design,
engineering and construction costs. The foregoing dollar amounts shall be adjusted to reflect
the percentage increase in the Index between the Effective Date and the date Developer
9
commences improvements to the Phase III Park. Any remaining costs of improvement of
the Phase III Pazk site will be funded by the City. The Phase III Park site will be developed
in accordance with applicable Existing Land Use Regulations and the Pazks Concept Plan.
The precise layout and design of facilities located within the Phase III Pazk "hall be
determined, consistent with the Parks Concept Plan, by a consultant retained by D~veloper
and approved by the City, and City shall approve such design within sixty (60) days after
recording of the first subdivision map for Phasing Area III. The Phase III Park shall include
a fire station site as provided in Section 4.1.5 below.
(c) Phase IV Park. Subject to the provisions of this Section
4.1.4(c), the Developer will convey to the City, prior to issuance of the 3,OOOth residential
building permit in the Project, a Turn Key Community Park site in Phasing Area IV which
shall be rough graded and hydro seeded and include such other facilities as the City may
require; provided, however, that the Developer will not be required to spend more than
$500,000 with respect to all of the Phase IV Park facilities, including grading, irrigation,
hydro seeding, landscaping and recreational facilities and related design, engineering and
construction costs. The foregoing dollaz amount shall be adjusted to reflect the percentage
increase in the Index between the Effective Date and the date Developer commences
improvements to the Phase IV Park.Any remaining costs of improvement of the Phase IV
Park Site will be funded by the City.. The Phase IV Park Site will be developed in
accordance with applicable Existing Land Use Regulations and the Parks Concept Plan. The
precise layout and design of facilities located within the Phase IV Pazk Site shall be
determine, consistant with the Pazks Concept Plan, by a consultant retained by Developer
and approved by the City, and City shall approve such design within sixty (60) days after
recording of the first subdivision map for Phasing Area IV.
(d) Nature Park. In partial satisfaction of the Project's
obligations under the Quimby Act or the applicable City Ordinance, the Developer shall
(i) transfer to a public benefit corporation or to a public
~ entity other than the City or anylandscaping and lighting district or other governmental body
', organized by the City, a 34 acre parcel of the Nature Pazk in Village II prior to issuance of
the 1,900th residential building permit in the Specific Plan azea; and
(ii) transfer to a public benefit corporation or to a public
entity other than the City or any landscaping and lighting district or other governmental body
organized by the City, the remaining 196 acres of the Nature Pazk prior to issuance of the
3,OOOth residential building permit in the Specific Plan area.
The portion of the Nature Park transferred pursuant clause (i) above shall include at least
twenty-five (25) acres easily accessible public park area pursuant to City standards, available
for passive uses such as picnic areas, trails, tot lots or other turfed azeas. Such 25 acres of
public park uses shall be credited to compliance with the City's park dedication standards.
Developer shall have no obligation to pay for or construct improvements on such land.
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4.1.5 Fire Station. A portion of the Phase III Park land conveyed to
the City shall be designated for the construction of a three engine fire station. The location
of the fire station within the Phase III Park shall be approved by the City Mana~er. The
precise layout and location of the fire station site within the Phase III Park shall be
approved by the City and the Riverside County Fire Department (if the City has not
assumed responsibility for fire protection services) in connection with the approval of any
subdivision map creating the Phase III Park Site. Prior to occupancy of the first dwelling
unit in Phasing Area III of the Project, Developer shall complete the dedication, and
commence construction and equipping of a three engine station building together with fire
engines and related equipment required for two engine companies or such lesser level of
building and equipment as the City may later approve as consistent with its fire protection
services standards (the "North Peak Fire Facilities"). In their design of the North Peak Fire
Facilities, the City and the Riverside County Fire Department (if the City has not assumed
responsibility for fire protection services) may include facilities and equipment to support
community based policing for the Project (the "North Peak Police Facilities"). Developer
will not be required to spend more than $1,500,000 for all costs related to the North Peak
Fire Facilities and $100,000 for all costs related to the North Peak Police Facilities (which
amounts shall be adjusted to reflect the percentage increase in the Index between the
Effective Date and the date Developer commences the construction of improvements or
conveys land for the North Peak Fire Facilities). Any remaining costs of the North Peak
Fire Facilities and/or North Peak Police Facilities shall be funded by the City or other
appropriate authority. Such amounts for the North Peak Fire Facilities shall be the only
charge against the Developer or the Project for fire protection facilities and equipment.
Developer and the Project shall be exempt from any other Development Exaction for fire
protection facilities and equipment. Developer's commitment in this Agreement to pay such
amount for fire protection facilities and equipment constitutes an adequate funding
mechanism as required by Paragraph 97 of the Mitigation Monitoring Program adopted with
the Specific Plan and the requirements of such Pazagraph 97 are hereby deemed satisfied.
To the extent such amounts for North Peak Police Facilities are expended for items that are
included in any police protection fee imposed on development in the Project, an appropriate
credit against such fees shall be provided to avoid double payment for such Police Facilities.
4.1.6 Affordable Housine. The Developer will provide a number of
affordable housing units within the multifamily zones of the Specific Plan pursuant to
California Health and Safety Code Sections 50079.5 and 50105 equal to the lesser of 231
residential units or 5% of the total residential units constructed in the Project. The density
of multifamily zones containing affordable housing maybe increased up to 30 dwelling units
per net developable acre and be constructed up to three (3) stories subject to design review,
in accordance with the criteria set forth in the Specific Plan. 1f azea within the multifamily
zones prove deficient, areas within Village Commercial or Village Residential zones shall be
utilized. Affordable housing constructed in Village Commercial zones may have a density
of 16 to 30 dwelling units per net developable acre and affordable housing constructed in
Village Residential zones may have a density of 12 to 20 dwelling units per net developable
acre. The total number of affordable units in the low and very low income ranges, as
11
determined by the County median average, shall be the lesser of 138 residential units or 3%
of total residential units constructed in the Project. The affordable mix between low and
very low income ranges shall be based on the current Housing Element standards.
Construction of affordable housing shall be commenced prior to issuance of thei 2,300th
residential building permit and shall be completed prior to issuance of the 3,450th residential
building permit.
Any density bonus obtained because of the development of affordable housing
(i) shall not increase the 4,621 dwelling units within the Specific Plan and (ii) shall not be
counted for purposes of calculating the maximum dwelling units permitted in any Village
pursuant to Section 21.3 of the Specific Plan.
The Developer will be responsible for implementing changes that from time to time
may occur to the City's Housing Element, where such changes occur on a city wide equitable
basis, provided that such changes do not (i) increase the number of affordable housing units
that must be constructed on the Property or (ii) impose any fees for affordable housing, day
care or the provision of facilities or services related to affordable housing. The affordable
units shall remain in the affordable categories until (i) the Project is completed at which time
the low and very low income units can be reduced to a number not exceeding 5% of the
total units in the Project and (il) as to all other units, as long as the City of Lake Elsinore
has a regional affordable housing requirement.
The City will assist the Developer in providing its fair share of affordable housing
by providing access to available redevelopment set aside funds at the outset of the
developer's affordable housing project. Other economic incentives such as bond assistance,
reduction of development standards, etc., may be offered at the discretion of the City.
The parties acknowledge that broad dispersion of affordable housing units within
the City may be aided by the construction of a portion of the above referenced units at
locations in the City ~ other than the Project. Further, the parties acknowledge that
Developer is willing to provide affordable housing units elsewhere in the City earlier than
such units could be provided within the Project, subject to the availability of appropriate
assistance from the City's redevelopment agency. The parties agree to meet and confer
regarding such affordable housing development with the understanding that if such units are
developed elsewhere in the City aunit-for-unit credit will be given against the units required
to be developed on the Project..
5. DURATION OF AGREEMENT
5.1 Ternt. 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 subject
to extension by the amount of any permitted delay as provided by Section 10 below. The
15 year duration of this Agreement shall be automatically extended to 20 years upon the
issuance of the 2,OOOth residential building permit within the Project.
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5.2 Scheduline. 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 20.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 Regulations and this Agreement,
it is the intent of the parties that 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 and that no regulation of the
rate of Development shall be applicable to the Project.
5.3 Certification of Completion. 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. Promptly upon completion of the Project, the Developer will submit a draft
certification of completion for review by the City.. Upon review, the City will provide the
Developer with a letter of completion so certifying. This certification will be a conclusive
determination that the obligations of the Developer pursuant to this Agreement have been
met. The certification will be in a form that will allow it to be recorded in the Records of
the Riverside County Recorder and effect a release and extinguishment of the encumbrance
of this Agreement. A release, issued by City in accordance with Section 17.4 herein, shall
act as a conclusive determination that the obligations of Developer pursuant to this
Agreement have been met with respect to a portion of the Property so released.
5.4 Termination. This Agreement will be deemed terminated and of no further
force and effect upon. the first to occur of (i) certification of completion pursuant to
Section 5.3 or (ii) expiration of the term of this Agreement, (iii) Developer's election to
terminate pursuant to Sections 5.5, 8.5, and 8.6 inclusive (iv) termination pursuant to
Section 8 below.
5.5 Periodic Review.
(a) The City shall, in accordance with applicable State law,
review this Agreement at least once every 12 months from and after the Effective Date
hereof and the City may initiate additional review of this Agreement at City's discretion
exercised not less than 6 months from the last periodic review. During each such periodic
review, the City and the Developer will 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. The
City's failure to review the Developer's compliance with this Agreement, at least annually,
will not constitute or be asserted by either party as a breach by the other party. Such
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periodic review shall be limited in scope to the good faith Substantial Compliance by the
Developer and the City with the terms of this Agreement. A finding by City of good faith
Substantial Compliance by Developer and the City with the terms of this 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 exlu'bits concerning contract performance
under this Agreement a minimum of thirty (30) calendaz days prior to any such review or
action upon this Agreement by City. Within thirty (30) days following receipt of such notice,
Developer shall pay to City a processing fee of $1,000 to defray City's costs of the periodic
review being conducted. Upon request by Developer, Developer shall be permitted an
opportunity to be heard orally and in writing regazding its performance under this
Agreement at any review on the Agreement.
(c) Developer's duty to demonstrate its good faith Substantial
Compliance shall be satisfied by the presentation to City of (i) a written report identifying
Developer's performance or the reasons for its non-performance excused pursuant to the
terms of this Agreement or (ii) 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 requirements (i.e., construction standazds, landscape
standards, etc.), 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, numbers, types, densities, heights and
sizes of structures completed and any reservations and dedications to the City. Generalized
evidence or a statement 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 thirty (30) 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 either party, shall be
continued to afford sufficient time for analysis and preparation.
(d) In the event that City, after compliance with the
requirements of Section 5.5(a) through (c) inclusive, finds that Developer has failed to
perform any material term or provision of this Agreement, such failure may be treated as
an event of Default. Upon such written determination by the City, Developer shall have a
period of thirty (30) days following the written determination of City Council to cure any
such failure to perform; provided, however, that if the nature of the failure of performance
is such that it cannot be cured within such period, then the diligent prosecution to
completion bf the cure shall be deemed to be a cure within such period. Any notice by City
during periodic review of Developer's failure to perform any material term or provision of
the Agreement shall specify in detail the nature of the alleged failure to perform and the
manner in which such failure may be satisfactorily cured in accordance with this Agreement.
During the time period herein specified for the cure of a failure of performance, the
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Developer will 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.
(e) If, after compliance with the requirements con arced in
Section 5.5(a) through (d) inclusive, City .finds that Developer has failed to perf~brm any
material term or provision of this Agreement, such failure may be the basis for City
modification of the Agreement, provided that (i) any modification shall only be to the extent
necessary to protect the health and safety of the community as opposed to any other
alternative; and (ii) Developer shall have a right of judicial review as provided for in
Section 13.1(e); and (iii) Developer shall have the right, within ten (10) days of City's notice
of modification of the Agreement or within ten (10) days of any final judgment in the event
of judicial review of any modification of the Agreement to Terminate the Agreement.
Developer's termination under this Section 5.5 shall not affect Developer's obligations with
respect to any term or provision Developer was required to ,perform prior to the Periodic
Review. Termination of this Agreement pursuant to this provision will not affect any right
or duty created by the then-existing City entitlement or approval with respect to the Project,
but the rights and obligations of the parties hereunder shall otherwise cease as of the date
of such termination.
(f) Developer may seek judicial review of any finding by City
of failure of Developer to demonstrate in good faith Substantial Compliance under the terms
of this Agreement under this Section. Any such legal action shall be commenced in the
Superior Court of Riverside County. In any judicial proceeding, the Court shall apply the
standard of judicial review in cases affecting vested rights.
6. VESTED RIGHT
6.1 Vestin¢. By entering into this Agreement and relying thereon, the
Developer is obtaining the vested right to proceed with Development of the Project in
accordance with the Existing Land Use Regulations, this Agreement, and any remaining
Development Approvals adopted by the City as provided in Section 8 below. By entering
into this Agreement and relying thereon, the City is .securing certain public benefits which
help to alleviate potential problems in the City and enhance the public health, safety and
welfare of existing and future City residents. ht view of the foregoing, the City agrees to the
following:
6.1.1 No Conflicting Enactments. Neither the City Council nor any
other agency, department, elected official, employee or executive of the City will enact, or
assist in the adoption by initiative of, any ordinance, policy, rule, regulation or other measure
applicable to the Project which relates to the rate, timing or sequencing of the development
or construction of all or any part of the Project or which is otherwise in conflict with this
Agreement and the vested right of Developer to proceed with Development of the Project
in accordance with the Existing Land Use Regulations, this Agreement and any remaining
Development Approvals adopted by the City as provided in Section 8 below. In addition
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to and not in limitation of the foregoing, no moratorium or other limitation (whether relating
to the rate, timing or sequencing of the Development of all or any part of the Project, the
Existing Land Use Regulations, and Development Approvals adopted as provided in Section
8 below, and whether or not enacted by initiative, referendum or otherwise), affectt~g parcel
or subdivision maps, building permits, site development permits, special use permits,
occupancy certificates or any other entitlement to use, which has been approved, issued or
granted in the City, or in parts of the City, will apply to the Project to the extent such
moratorium or other limitation is in conflict with this Agreement and the vested right of
Developer to proceed with Development of the Project in accordance with the Existing Land
Use Regulations, this Agreement and any remaining Development Approvals adopted by
the City as provided in Section 8 below.
6.1.2 Citizen Initiative. Notwithstanding the foregoing, if an ordinance,
general plan or zoning amendment, measure, initiative, referendum, moratorium, policy, rule,
regulation or other limitation enacted by citizens of the City through the initiative process,
is determined by a court of competent jurisdiction to invalidate or prevail over all or any
part of this Agreement, then the Developer will have no recourse against the City pursuant
to this Agreement other than for breach of Sections 6.1.1 and 9.7, but will retain all other
rights, claims and causes of action at law or in equity which the Developer may have
independent of this Agreement. However, the foregoing will not be deemed to limit the
Developer's right to appeal any such determination of such ordinance, general plan or
zoning amendment, measure, moratorium, policy, rule, regulation or other limitation. The
foregoing will also not be deemed to limit the effect of Section 19.7.
6.1.3 Gr dine. Without limiting the effect of any other provision of
this Agreement, the Developer will have the right to obtain a grading permit based on an
approved tentative map and begin grading the Property prior to recording of any Final Map.
City approval of grading permits will not be unreasonably denied based on season or date,
provided that the Developer agrees 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.
6.2 Benefit of an Earlier Vestine. Nothing contained in this Agreement shall
serve to limit Developer's obtaining of a vested right to proceed with the Project or any
portion thereof pursuant to the provisions of the state or federal constitution or decisional
law.
GENERAL DEVELOPMENT OF THE PROJECT
7.1 Project. 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 Existing Land Use Regulations and any
subsequent Development Approvals approved by the City as provided in this Agreement.
Except as otherwise provided in this Agreement, the Existing Development Approvals will
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control the overall design and Development of the Project and all on-site and off-site
improvements and appurtenances in wnnection therewith, including, without limitation, all
mitigation measures required in order to minimize or eliminate materialR 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
Agreement and the Existing 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 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 the Developer, with approval of the City Manager, in accordance with the applicable
provisions of the Existing Land Use Regulations. Such right of approval is to ensure
compliance with the Specific Plan and Existing Development Approvals, and to ensure that
amendments to the Specific Plan to not adversely affect compatibility with off-site
improvements. The number of residential units actually constructed in any planning unit
may vary in accordance with the provisions of the Specific Plan.
7.2 Phasing of Developments. No moratoriums or ordinances imposing
limitations on the number of building permits which maybe issued by City shall apply to the
Property unless a finding is made in accordance with Section 8.6. City specifically
acknowledges that Developer's discretionary control over timing and phasing of construction
is a vested right provided to Developer under this Agreement.
7.3 Reservations or Dedications. Reservations or dedications of portions of the
Property may, from time to time, be required by the City in accordance with or as part of
subdivision map approvals for the remainder of the Property. Such reservations or
dedications shall be imposed in accordance with the Exacting Land Use Regulations. For
the purposes of this Section 7.3 and any subsequent subdivision map approvals, any
reference to "dedication" 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. Accordingly, any land "dedicated" or
"reserved" to the City or other public entity pursuant to a subdivision map approval may, at
the City's option, be purchased by a Community Facilities District (or other financing
district) formed over the Property to the extent funds are legally available to such purpose.
7.4 Operating Memoranda and Amendments. The parties acknowledge that
the passage of time may demonstrate that changes are necessary or appropriate with respect
to the details of each party's performance under this Agreement. Because the parties desire
to retain a certain degree of fle~nbility with respect to the details of each party's performance
pursuant to this Agreement, if and when the parties find that changes are necessary or
appropriate, they will, unless otherwise required by law, effectuate such changes or
17
I
adjustments through operating memoranda approved and executed by the Developer and
by the City Manager or his designee on behaff of the City. Each such operating
memorandum will be attached hereto as an addendum and become a part hereof, and may
be further changed from time to time as necessary or appropriate, as provided in this
Section. No such operating memorandum will be deemed to be an amendmejt of this
Agreement under Government Code Section 65868 and unless otherwise required by law,
no such operating memorandum will require prior notice or hearing. Notwithstanding the
foregoing, the following matters will not be considered as appropriate subjects of operating
memoranda, but will be considered substantive amendments which must be reviewed by the
Planning Commission of the City and approved by the City Council.
7.4.1 Alteration of Permitted Uses. Alteration of the permitted uses
of the Property except to the extent permitted by this Agreement or the Specific Plan.
7.4.2 Increase in Density or Intensity. Increase in the density or
intensity of use or number of buildable lots except to the extent permitted by this Agreement
or the Specific Plan.
7.4.3 Increase in Height and Size. Increase in the maximum height
and size of permitted buildings except to the extent permitted by this Agreement or the
Specific Plan.
7.4.4 Deletion of Reservation Requirements. Deletion of a
requirement for the reservation or dedication of land for public purposes, except for minor
boundary adjustments approved and executed by the City Manager or his designee on behalf
of the City and except to the extent permitted by this Agreement or the Specific Plan.
7.4.5 Supplemental Environmental Impact Reports. Any amendment
or change requiring a subsequent or supplemental Environmental Impact Report pursuant
to Public Resources Code Section 21166.
8. RULES. REGULATIONS AND OFFICIAL POLICIES
8.1 Effect of Agreement on Land Use Re ations. The rules, regulations and
official policies governing permitted uses of the 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 the development
of the Property aze those rules, regulations and official policies in force as of the Approval
Date as set forth in this Agreement and the Existing Land Use Regulations. City agrees that
during the term of this Agreement, Developer shall have the vested right to proceed with
Development of the Property in accordance with the Existing Land Use Regulations, this
Agreement and any remaining Development Approvals adopted by the City as provided in
this.Section 8. In connection with any Development Approval which the City is permitted
to give under this Agreement with respect to the Project, or otherwise under the Existing
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Land Use Regulations, the City will exercise its discretion or take action in a manner which
is as expeditious as possible and which complies and is consistent with the Existing
Development Approvals and the standards, .terms and conditions contained in this
Agreement, and in a manner which will not interfere with the Development of the Project
for the uses permitted therein, and to the height, density and intensity specified in this
Agreement and in the Existing Development Approvals, and at the rate of Development
selected by the Developer. Subject to Section 9.3, the City will accept for processing and
act on all applications for further land use entitlement approvals which are necessary or
appropriate with respect to the Project.
8.2 New Rules. Although the City's current 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 Approval Date of this
Agreement (i.e., the Existing Land Use Regulations), this Agreement will not prevent the
City from applying the following new rules, regulations and policies:
8.2.1.. Processing Fees. Processing fees and charges adopted by the
City and uniformly applied throughout 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.
8.2.2 Procedural Regulations. Procedural regulations uniformly
applied throughout the City relating to hearing bodies, petitions, applications, notices,
findings, records, hearings, reports, recommendations, appeals and any other matter of
procedure.
8.2.3 Regulations Governing Construction Standards. 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.
8.2.4 Certain Conflicting Re ations. Regulations which are
inconsistentwith the Existing Development Approvals or this Agreement if such regulations
have been consented to in writing by the Developer.
8.2.5 Non-Conflicting Regulations. 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
the existing rules, regulations and policies set forth in the Existing Land Use Regulations.
Any regulation, whether adopted by initiative or otherwise, limiting the rate or timing of
Development (regardless of the mechanism used to so limit the rate and timing of
development) of the Property shall be deemed to conflict with the Existing Land Use
Regulations and shall therefore not be applicable to the Development of the Property.
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This Section 8.2 shall not preclude the application to Development of the Property of
changes in City laws, regulations, plans or policies specifically mandated and required (as
opposed to permitted) by changes in state or federal laws or regulations. If such changes
in state or federal laws prevent or preclude compliance with one or more provisions of this
Agreement and implementation of the Development Approvals, the parties agree to take
appropriate action pursuant to Section 8.5 of this Agreement.
8.3 Police Power and Taxin Power. The City will not directly or indirectly
impose, or enact any additional Development Exaction, through the exercise of either the
police power or the taxing power with respect to the Development of the Project except as
provided in the Existing Land Use Regulations or in this Agreement. However, nothing in
this Agreement will prohibit the adoption and application of (i) a special tax approved by
the City's voters, provided that such tax is imposed on a City-wide basis for City-wide or
general plan facilities and provided that equitable credits aze provided for any such facilities
that have been or will be provided by Developer or the Project through other means, or (ii)
future City-wide Development Impact Fees adopted in accordance with Government Code
Sections 66000 et sec, and provided that appropriate credits aze provided for fee-financed
facilities that have been or will be provided by Developer or the Project through other
means.
8.4 Life of Subdivision or Parcel Mans. Pursuant to Government Code Section
66452.6(a), the term of any tentative map approved with respect to the Project shall be
extended for the term. of this Agreement.
8.5 State and Federal Laws.
(a) If state or federal laws or regulations enacted after the
Effective Date hereof, prevent or preclude compliance with one or more of the provisions
of this Agreement, such provisions of this Agreement will be modified or suspended as may
be necessary to comply with such state or federal laws or regulations; provided, however that
this Agreement will remain in full force and effect to the extent it is not inconsistent with
such state or federal laws or regulations and subject to the following provisions: If state or
federal laws or regulations enacted after the Effective Date or the action or inaction of any
other governmental jurisdiction prevents or precludes compliance with one or more
provisions of this Agreement or requires changes in plans, maps or permits approved by City
(including a court decision affecting the validity of development agreements pursuant to
Government Code sections 65864, et sue.), 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 with such federal or state law or regulation in a manner consistent
with the intent and objectives of the Agreement, to the extent feasible.
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(b) Thereafter, regazdless of whether the parties reach
agreement on the effect of such federal or state law or regulation upon this Agreement, the
matter shall be scheduled for hearing before the City Council. Ten (10) days written notice
of such hearing shall be provided to Developer. The City Council, at such hearing, shall
determine the exact modification or tolling which is required by such federal or state law or
regulation. Developer, at the hearing, shall have the right to offer testimony. Any
modification or tolling shall be taken by the affirmative vote of not less than a majority of
the authorized voting members of the City Council. Any suspension or modification may be
subject to judicial review in conformance with this Agreement. Notwithstanding the above,
this Agreement is deemed to be a valid and legitimate exercise by City of its police power
to provide for future public improvements and facilities for the benefit of the health, safety
and welfare of City and its residents.
(c) If City determines to modify or toll the Agreement, City
shall provide Developer with written notice of its decision. Within ten (10) days following
written notice to Developer of City's determination of any modification or decision to toll,
or any final judgment of a court reviewing any modification or tolling of the Agreement,
Developer shall have the right to terminate the Agreement by providing City with notice of
such intent to terminate. Developer's termination under this Section 8.5 shall not affect
Developer's obligations with respect to any term or provision Developer was required to
perform prior to City's notice of its intent to modify or toll the Agreement. The Developer's
termination of this Agreement shall not affect any right or duty created by and then-existing
City entitlement or approval with respect to the Project, but the rights and obligations of the
parties hereunder shall otherwise cease as of the date of such termination.
8.6 Unforeseen Circumstances. If, as a result of facts, events or circumstances
presently unlrnown, 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 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) fonvazd to Developer thirty (30) days prior to the hearing
referred to below all documents relating to such determination and the reasons therefor; (2)
notify Developer, in writing, at least thirty (30) 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 cleaz and convincing evidence,
it has been established that: (a) the circumstances were unlmown, 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 the Developer for unused fees, and provide equitable reimbursement for
dedications and improvements not required by the extent of development as of the date of
such suspension, modification or termination. If the City Council should fail to make such
findings then this Agreement shall not be so terminated, modified or suspended; and if the
21
City Council should make such findings, Developer shall have the right to file an action in
the Superior Court, County of Riverside, challenging such findings. The Superior Court shall
utilize the standazd of review applicable in cases involving vested rights. The unforeseen
circumstances, which shall cause the operation of this provision shall not be the ~esult of
changes in federal or state law or regulation. In the event of changes in federal or tate law
or regulation, the provisions of Section 8.5 shall govern.
8.6.1 If, following City determination to modify the Agreement,
Developer shall have the right, within ten (10) days of City notification of its intent to
Developer to modify the Agreement in writing, or within ten (10) days of any final judgment
in the event of judicial review of any modification or suspension, to terminate the
Agreement, Developer's Termination under this Section 8.6 shall not affect Developer's
Obligations with respect to any term or provision Developer was required to perform prior
to any unforseen circumstance which is the basis for City action. The unforseen
circumstances which will cause the operation of this provision shall not be the result of
changes in federal or state law or regulation. In the event of changes in federal or state law
or regulation, the provision of such 8.5 shall govern.
8.6.2 Developer shall have the right to file an action in Superior
Court, County of Riverside, challenging any findings the City shall make or action taken with
respect to an Unforseen Circumstance pursuant to Section 8.6 hereinabove. The Riverside
County Superior Court shall utilize the standards of review applicable in cases involving
vested rights in a judicial review.
9. COOPERATION AND COVENANT OF FURTHER ASSURANCES
9.1 Third Party Actions. The Developer and the City will cooperate in
defending any action 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 defense of any such action or proceeding so as to minim;~e litigation
expenses incurred by the City. In addition, any action instituted by any third party
challenging this Agreement or any other permit or approval required fiom the City or any
other governmental entity, for the Development of all or any portion of the Project, will
constitute a permitted delay under Section 10. Notwithstanding a foregoing, the filing, of
any third party action against the City and/or the Developer with respect to this Agreement
or any provision hereof, will not be a reason to delay or stop the Development of the Project
(including, without limitation, the processing of any application of the Developer with respect
to the Development, the issuance of any building permit or the issuance of any certificate
of occupancy) unless the third party obtains a court order preventing such activity. The City
will not stipulate to the issuance of any such court order.
9.2 Further Assurances. Each party covenants on behalf of itself and its
successors and assigns to take all actions and do all things, and to execute with
acknowledgments or affidavits if required, any and all documents and writings that may be
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necessary or proper to achieve the purposes and objectives of this Agreement. Each parry
will take all necessary measures to see that the provisions of this Agreement aze carried out
in full.
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9.3 Processine. Subject to the provisions of this Sectio~i, upon
satisfactory completion by the Developer of all required preliminary actions and payment
of all appropriate filing and processing fees, if any, the Ciry shall, in accordance with the
Existing Land Use Regulations, diligently commence and proceed to complete all steps
required or necessary for the implementation of this Agreement and the Development of
the Project in accordance with this Agreement, and Existing Land Use Regulations
including;
9.3.1 Scheduline. Schedule, convene and conclude all required public
hearings in an expeditious manner.
9.3.2 Processine. Process and approve all maps, plans, land use
permits, building plans and specifications and other applications for approval with respect
to the Development of the Project to the extent consistent with the Existing Land Use
Regulations and applicable provisions of state law.
The Developer will, in a timely manner, provide and/or cause its agents to provide the City
with all materials, documents, applications, plans and other information necessary for the
City to carry out its obligations hereunder. In order to facilitate the City's performance of
its obligations pursuant to this Agreement including, without limitation, its obligations
pursuant to this Section 9.3, at the request of the Developer, the City will hire such
additional personnel as may be necessary to further expedite the scheduling and processing
of the Developer's applications with respect to the Project; provided, however that the
Developer will pay the entire cost of any such additional personnel and any such additional
personnel will be assigned exclusively to the Project.
9.4 Other Governmental Permits. The Developer will apply in a timely manner
for such other permits and approvals as are required by other governmental agencies having
jurisdiction over the Project or the development of, or provision of services to, the Project.
The Ciry will cooperate with the Developer in its efforts to obtain such permits and
approvals. In addition, the City will use its best efforts to assist the Developer in
coordinating the implementation of the Project with such other governmental agencies. 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.
9.5 Financing of Public Facilities and/or Services. The City and the Developer
will in good faith use their best efforts to establish one or more community facilities districts,
assessment districts, improvement districts, acquisition districts or other public financing
mechanisms including, without limitation, one or more community facilities districts pursuant
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to the Mello-Roos Community Facilities Act of 1982, as set forth in Government Code
Section 53311 et sec ., for the purpose of financing the planning, design, construction and
acquisition of public facilities, including related fees and the acquisition of land jerefor,
required by the Project, to the maximum extent legally and financially feasible. Thy parties
expect that bonds, assessments, liens or other such financing mechanisms will be issued or
levied to provide sufficient funds for the foregoing purposes. City and the Developer agree
that, without the consent of the City, .the portion of average appraised real property values
of developed product in the Project allocated to real property taxes and aggregate public
debt service may go up to but will not exceed Z% of average appraised real property values
of developed product in the Project, and the City will take no action to limit such portion
to less than 2% of the average appraised real property values of developed product in the
Project. Although the parties will in good faith use their best efforts to maximize the extent
that structures, improvements and facilities comprising the Project will be financed through
the use of such public financing mechanisms, the parties acknowledge that it may not be
legally or financially feasible to finance all of such structures, improvements and facilities
through the use of such public financing mechanisms. Therefore, to the extent that the
public improvements or public services required by the City with respect to the Project are
in excess of the needs and demands of the Project and will be utilized by other existing or
future developments, the City will use its best efforts to cause such existing or future
developments to contribute to the costs of such public improvements and public services
(including, without limitation, by participating in one or more community facilities districts,
assessment districts, improvement districts, maintenance districts or other similar public
financing mechanisms or by City establishment of facilities fee programs) and, from the
funds which are generated by such public financing mechanisms, cause appropriate
reimbursement, including interest at the legal rate, to be made to the Developer. The City
acknowledges that completion of proceedings to establish one or more of such public
financing mechanisms is critical to provide the parties with security for the performance by
the Developer of its obligation to cause the Development of the Project to occur. The
Developer understands that the City has formed a joint powers authority under the Marks-
Roos Local Bond Pooling Act of 1985 known as the Lake Elsinore Public Financing
Authority, and that City policy requires all public financing within the City to be funded
through the Authority, provided that the City policy shall not preclude the formation of
community facilities districts by the school districts or water district having jurisdiction in the
Project.
9.6 Utilities Coordination. The City will use its best efforts to assist the
Developer in obtaining all electrical, gas, telephone, cable television and other necessary
utility connections required for the Project. Within a reasonable time after request therefor
by the Developer, the City will approve all connection and access points for such utilities,
if they are in compliance with the Existing Land Use Regulations.
9.7 Covenant of Good Faith and Fair Dealin¢. Except as may be required by
law, neither party will do anything which will have the effect of harming or injuring the right
of the other parry to receive the benefits of this Agreement and each party will refrain from
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doing anything which would render performance under this Agreement impossible or
impractical. In addition, each party will do everything which this Agreement describes that
such party will do. R
6~
9.8 Stephens' Kangaroo Rat. Any portion of the Project whose development
is exempt from Section 9 of the ESA under the terms of Section 7 of the Endangered
Species Act ("ESA") upon issuance of a grading permit shall not be subject to the Stephens'
Kangaroo Rat Mitigation Fee Ordinance (Ord. 905, Section 1, 1990). This exemption is in
accordance with the terms of the Implementation Agreement for the Short Term Habitat
Conservation Plan for the Stephens' Kangaroo Rat ("Implementation Agreement"). Section
VI. C. of the Implementation Agreement provides that 'hothing in this Agreement is
intended to apply to any activity that is exempt from Section 9 of the ESA under the terms
of Section 7 of the ESA." The Parties to this Development Agreement acknowledge that
the Project meets the terms of section VI. C. of the Implementation Agreement. As to any
portion of the Project whose development is not exempt, the City will use its best efforts to
maximize the amount of acreage which is released for grading and allocated to the City
pursuant to the Riverside County Short Term Habitat Conservation Plan for the Stephens'
Kangaroo Rat and will take such steps as may be necessary or appropriate from time to
time, to secure such maximum allocation. Any assessment of fees under the above-
referenced fee ordinance shall be calculated based on the number of acres to be graded
under the then-approved grading plan.
9.9 Highway 74 Realignment. The Developer will cooperate with the City in
forming such assessment districts, benefit districts, bridge and thoroughfaze fee districts and
other fair share public financing mechanisms (based on traffic contributions to Highway 74)
as may be necessary or appropriate to finance the cost of acquiring a six lane right-of-way
for the realignment of Highway 74 between Interstate 15 and Riverside Drive including,
without limitation, removing the existing road radius (which does not meet current applicable
road standards) and realigning and improving Highway 74 to current applicable standards
of the California Department of Transportation. Developer will be required to dedicate
portions of the Property necessary to accommodate Highway 74 improvements along and
adjacent to the Property's boundary as provided in Paragraph 42 of the Mitigation
Monitoring Program adopted with the Specific Plan. City shall enter into the SR 74
Cooperative Agreement and Developer shall assist City in performing its obligations under
the SR 74 Cooperative Agreement as provided in Section 4.1.2 above. Within two years of
the Approval Date, the City shall adopt a Transportation Improvement Plan as
contemplated by Pazagraph 45 of the Mitigation Monitoring Program for the section of
Highway 74 between Interstate 15 and Riverside Drive. The Transportation Improvement
Plan shall include (i) the implementation of the fair shaze funding mechanism for the
ultimate six lane build out of Highway 74 between I-15 and Riverside Drive, and (ii) a
Concept Landscape Plan for Highway 74. Pursuant to Pazagraph 72 of the Mitigation
Monitoring Program, Developer shall submit a Concept Landscape Plan for Highway 74
between I-15 and the eastern Project boundary. In developing the Concept Landscape Plan,
it shall not be necessary that the precise alignment of the ultimate six lane build out of
25
Highway 74 be established. As provided by Paragraph 73 of the Mitigation Monitoring
Program, Developer .shall be responsible for implementing the approved Highway 74
Concept Landscape Plan where the roadway abuts the Property. In lieu of the above
provisions, the Developer may develop a Concept Landscape Plan for that porti ~ of the
Property that abuts Highway 74 and pay to the City the amount of $25,000 to co~pensate
the City for the cost of developing a Concept Landscape Plan for the remainder of the
section of Highway 74 between I-15 and the eastern Project boundary.
9.10 City Acquisition of Rights-of--Way. In any instance where Developer is
required to construct any public facilities on lands not owned by Developer, as a condition
precedent to the performance of such obligation, City shall provide or cause to be provided
the real property rights and interests necessary for the construction of such public facilities.
Developer shall participate in any applicable fare share allocation of the cost of acquiring
such rights or interests. If the City is unable or unwilling to provide the real property rights
and interests necessary for the construction of such public facilities, the developer shall be
entitled to relief from such condition in the manner provided for by law.
10. PERMITTED DELAYS
The Developer will be excused from performance of its obligations hereunder during
any period of delay caused by casualties; acts of God; civil commotion; war; insurrection;
riots; strikes; walkouts; picketing or other labor disputes; unavoidable shortages of materials
or supplies; damages to work in progress by reason of fire, flood, earthquake or other
casualty; litigation which prohibits or delays any aspect of the processing or Development
of the Project; initiatives or referenda; moratoria; unanticipated restrictions imposed or
mandated by governmental entities; or enactment of conflicting City, County, State or
Federal laws or regulations or judicial decisions; or any other cause which is not within the
reasonable control of the Developer. Each party will promptly notify the other party of any
delay hereunder as soon as possible after the same has been ascertained, and the term of
this Agreement will be extended by the period of any such delay. Notwithstanding Section
13.3, any claim for delay must be presented within 30 days of knowledge of the cause of such
delay or any entitlement to time extension will be deemed waived.
11. ESTOPPEL CERTIFICATES
Either party may at any time, and from time to time, deliver written notice to the
other party, requesting that the other party certify in writing to the knowledge of the
certifying party that: (a) this Agreement is in full force and effect and is a binding obligation
of the certifying party; (b) this Agreement has not been amended or modified, except as
expressly identified; and (c) no default in the performance of the requesting parry's
obligations pursuant to Agreement exists, except as expressly identified. A party receiving
a request hereunder will execute and return the requested certificate within 30 days after
receipt of the request.
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i
i
12. RECORDATION BY CITY CLERK
Pursuant to Government Code Section 65868.5, within 10 days after execution of this
Agreement by the City, the City Clerk will record a copy in the Records of the Riverside
County Recorder.
13. DEFAULT AND REMEDIES
13.1 Events of Default. Subject to arty written extension of time by mutual
consent of the parties, and subject to the provisions of Section 10 regarding permitted delays,
the uncured failure of either party to perform any material term or provision of this
Agreement will constitute a default if such defaulting patty does not cure such failure within
thirty (30) days following written notice of default from the other party; provided, however
that if the nature of the failure of performance is such that it cannot be cured within such
period, then the diligent prosecution to completion of the cure will be deemed to be a cure
within such period. Any notice of default given hereunder will specify in detail the nature
of the alleged default and the manner in which such default may be satisfactorily cured in
accordance with this Agreement. During the time period herein specified for the cure of
a failure of performance, the party charged with such failure of performance will 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 and, if the Developer is the party that
has failed to perform, then the City will not be excused from its performance under this
Agreement during that period.
13.2 Termittation.
(a) After proper notice, appropriate City administrative
review, if any, and expiration of the time for cure, the noticing parry to this Agreement, at
its option, may institute legal proceedings pursuant to Section 13.6 (Institution of Legal
Action) 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 Government Code
sections 65865, 65867 and 65868 by the City Council within thirty (30) days. The Ciry
Council shall utilize the standard of review applicable to cases involving vested rights.
(b) If 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. The parry found to be
in default may seek judicial review of the City Council decision by filing an action in the
Superior Court of Riverside County. The Superior Court shall utilize the standard of review
applicable in cases involving vested rights.
13.3 Default by Citv. If City does not accept, review, approve and issue
requested development permits or entitlements, or City otherwise defaults on this
27
6
Agreement, or City otherwise fails to comply with any term or provision of this Agreement,
then City shall be in default. City agrees that Developer in no event shall be obligated to
proceed with or complete the Project or any phase thereof nor shall resulting delays in
Developer's performance constitute grounds for termination or cancellationt of this
Agreement.
13.4 No Waiver. The failure by a party to insist on the strict performance of any
of the provisions of this Agreement by the other party will not constitute a waiver of such
party's right to demand strict performance by such other party in the future. All waivers
must be in writing to be effective or binding on the waiving party and no waiver will be
implied from any omission by a party to take action. No express written waiver of any
default will affect any other default or cover any other period of time except that specified
in such express waiver.
13.5 Effect of Termination. Termination of this Agreement by one parry due
to the default of the other party will not affect any right or duty created by any then existing
Development Approvals with respect to the Project, but the rights and obligations of the
parties hereunder shall otherwise cease as of the date of such termination.
13.6 Institution of Legal Action. In addition to any other rights or remedies,
either party may institute legal action to cure, correct or remedy any uncured default, to
enforce any covenants or agreements herein, 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 will be entitled to recover from the losing party, reasonable litigation
expenses, attorneys' fees and costs incurred. The parties acknowledge that if a breach of
this Agreement by the City occurs, irreparable harm is likely to occur to the Developer and
damages may be an inadequate remedy. Therefore, to the extent permitted by law, the
parties agree that specific enforcement of this Agreement by the Developer is an
appropriate and available remedy, in addition to any and all other remedies which may be
available to the Developer under law or at equity.
14. 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
taxpayers.
15. CONSENT OF OTHER PARTIES
The Developer may, at its discretion, elect to have other holders of legal, equitable
or beneficial interests in the Project, the Property or parts thereof, acknowledge and consent
28
1
to the execution and recordation of this Agreement by executing an appropriate instrument
therefor. It is understood by the parties that the execution of such document by other
holders of legal, equitable or beneficial interests in the Project is not a condition precedent
to this Agreement. "
16. ASSIGNMENT AND RELEASE
16.1 Transfer and Assignments of Rights and Interests.
16.1.1 Rights and Interests Appurtenant. The rights and interests
conveyed and provided herein to Developer benefit and are appurtenant to the Property.
Developer has the right to sell, assign and transfer any and all of its rights and interests and
to delegate any and all of its duties and obligations hereunder; provided, however, that such
rights and interests may not be transferred or assigned except in strict compliance with the
following conditions precedent;
(i) Said rights and interests may be transferred or assigned
only together with and as an incident of the transfer and assignment of the portions of the
Property to which they relate, including any transfer or assignment pursuant to any
foreclosure of a Mortgage or a deed in lieu of such foreclosure; and
(ii) Concurrent with any such assignment or transfer or within
five (5) business days thereafter, Developer shall notify City in writing of such assignment
or transfer, the portions of the Property to which the assignment or transfer is appurtenant,
and the name and address (for purposes of notices hereunder) of the transferee or assignee,
together with the corresponding number of dwelling units which are included within such
transfer and Developer and the assignee or transferee shall notify City whether the assignee
or transferee has assumed any of Developer's obligations under this Agreement and which
of Developer's obligations have been assumed.
Any attempt to assign or transfer any right or interest in this Agreement
except in strict compliance with this Section 16, shall be null and void and of no force and
effect.
City shall have no duty or obligation of any kind or nature to maintain a
record of such transfers or assignments of portions of the Property or numbers and
allocations of units involved or to notify or advise prospective or actual assignees or
transferees or others of such assignments or the resulting allocation of units with respect to
the Property or under this Agreement.
16.1.2 Allocation of Density. It is acknowledged that the density of
development provided by the Specific Plan may be distn'buted by Developer
disproportionately throughout the Property in accordance with and subject to the Existing
29
Land Use Regulations. City shall not be obligated to the successors of Developer to advise
or notify any such successor or any other person as to the density of development allowed
under this Agreement or any of the Land Use Regulations with respect to any uticulaz
portion of the Property; provided, however, that City shall upon the request of )~eveloper
enter into further agreements in a recordable form allocating to the various portions of the
Property the then allowable density of units pursuant to the Specific Plan. Such an
agreement may include provisions relating to the assumption of certain of Developer's
obligations hereunder and the allocation of the benefits and burdens of this Agreement, all
as specifically provided in this Section 16. The reasonable costs and expenses of City in
considering and responding to any request shall be reimbursed to City by Developer
forthwith upon the request of City.
16.1.3 Subject to Terms of Bement. Fallowing any such assignment
or transfer of any of the rights and interests of Developer under this Agreement, the
exercise, use and enjoyment thereof shall continue to be subject to the terms of this
Agreement to the same extent as if the assignee or transferee were Developer. Without
limiting the generality of the foregoing,
(i) in order to claim or benefit from any right or interest
hereunder or provision hereof (including but not limited to the rights of Developer under
Section 13), any subsequent assignee or transferee shall have no right, and shall be obligated
not, to claim damages from or against City under Section 13;
(ii) the further assignment or transfer of any of the rights or
interests under this Agreement shall be made only in accordance with and subject to the
terms of this Section 16.1, and
(iii) the right and interests assigned or transferred aze subject
to termination in accordance with this Agreement.
Notwithstanding the foregoing, any assignee or transferee of any of the
rights and interests of Developer shall take said rights and interests subject to this
Agreement and shall have no duty or obligation to perform Developer's obligations or other
affirmative covenants of Developer under this Agreement unless such obligations and
covenants aze expressly assumed in connection with the conveyance of said rights and
interests.
16.1.4 Release of Developer. Notwithstanding the assignment or
transfer of portions or all of the Property or rights or interests under this Agreement,
Developer shall continue to be obligated under this Agreement unless released or partially
released by City with respect to Developer's obligations under this Agreement, pursuant to
this Section 16.1.4, which release or partial release shall be provided by City upon the full
satisfaction by Developer of the following conditions:
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r:'
(i) Developer is not then in default under this Agreement;
(ii) Developer has provided City with the written notice
required under Section 16.1.1; and (
(iii) Such assignee or transferee has assumed such duties and
obligations as to which Developer is requesting to be released and has provided City with
security and other assurances reasonably satisfactory to City and equivalent to those which
were provided by Developer assuring City that Developer's obligations and the other duties
and obligations of Developer under this Agreement for which Developer is being released
will be fully and strictly performed as provided in this Agreement.
16.2 Releases Upon Partial or Total Completion of Project. The City hereby
covenants and agrees that upon completion of the public improvements which are included
within the Project and payment of all fees required under this Agreement with respect to
the Property or any portion thereof, the City will execute and deliver to the Riverside
County Recorder, an appropriate release of the Developer, the Property affected or a
portion thereof and the Project from further obligations under this Agreement, in form and
substance acceptable to the Riverside County Recorder, or as may otherwise be necessary
to effect such release.
16.3 Releases Upon Sale or Lease to the Public. Notwithstanding any provisions
of this Agreement to the contrary, the burdens of this Agreement shall terminate as to any
lot which has been finally subdivided and individually (and not in "bulk") leased (for a period
of longer than one year) or sold. to the purchaser or user thereof (including but not limited
to any school district taking title to land within the Project for school purposes) and
thereupon and without the execution or recordation of any further document or instrument
such lot shall be released from and no longer be subject to or burdened by the provisions
of this Agreement; provided, however, that the benefits of this Agreement shall continue to
run as to any such lot until a building is constructed on such lot, or until the termination of
this Agreement, if earlier, at which time this Agreement shall terminate as to such lot. City
shall execute, acknowledge and deliver releases or other documents in form and content
required by title insurers to remove the lien of this Agreement from such properties. A
release issued by the City in accordance with this Section shall act as a conclusive
determination that the obligations of Developer pursuant to this Agreement have been met
with respect to the portion of the Property so released.
17. ENCUMBRANCES ON REAL PROPERTY: MORTGAGEE PROTECTION
17.1 Discretion to Encumber. The parties agree that this Agreement will not
prevent or limit the Developer in any manner, at the Developer's sole discretion, from
encumbering the Property, or any part of the same including, without limitation,
improvement thereon, by any Mortgage or other security device.. The City acknowledges
that the lenders providing such financing may require certain modifications and the City
31
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agrees, upon request from time to time, to meet with the Developer and/or the represen-
tatives of such lenders to negotiate in good faith regarding any such request for modification.
The 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 Ag~eement
to the detriment of the City.
17.2 Mortgagee Protection. This Agreement shall be superior and senior to any
lien placed upon the Property, or any portion thereof, including the lien of any Mortgage.
Notwithstanding the foregoing, no breach hereof shall defeat, render invalid, diminish or
impair the lien of any Mortgage made in good faith and for value and any acquisition or
acceptance of title or any right or interest in or with respect to the Property or any portion
thereof, by a Mortgagee (whether under or pursuant to a Mortgage, foreclosure, trustee's
sale, deed in lieu of foreclosure, or otherwise), shall be subject o all of the terms and
conditions contained in this Agreement.
17.3 Mortgagee Not Obligated. Notwithstanding the provisions of Section 17.1
above, no Mortgagee shall have an obligation or duty under this Agreement to perform
Owner's Obligations or other affirmative covenants of Developer hereunder, or to guarantee
such performance; except that to the extent that any covenant to be performed by
Developer is a condition to the performance of a covenant by City, the performance thereof
shall continue to be a condition precedent to City's performance hereunder.
17.4 Notice of Default to Mortgagee: Right of Mortgagee to Cure. If City
receives notice from a Mortgagee requesting a copy of any notice of default given Developer
hereunder and specifying the address for service thereof, and records a copy of each request
in the official records of City in the manner required under Civil Code Section 2924b with
respect to Requests for Notices of Default, then City shall deliver to such Mortgagee,
concurrently with service thereon to Developer, any notice gtven to Developer with respect
to any claim by City that Developer has not complied in good faith with the terms of this
Agreement or has committed an event of default. Each Mortgagee shall have the right (but
not the obligation) for a period of ninety (90) days after the receipt of such notice from City
to cure or remedy, or to commence to cure or remedy, the claim of default or
noncompliance set forth in the City's notice. If the default is of a nature which can only be
remedied or cured by such Mortgagee upon obtaining possession, such Mortgagee shall seek
to obtain possession with diligence and continuity through foreclosure, a receiver or
otherwise, and shall thereafter remedy or cure the default or noncompliance within thirty
(30) days after obtaining possession. If any such default or noncompliance cannot, with
diligence, be remedied or cured within such thirty (30) day period, then such Mortgagee shall
have such additional.time as may be reasonably necessary to remedy or cure such default
or noncompliance if such Mortgagee commences cure during such thirty (30) day period, and
thereafter diligently pursues and completes such cure.
17.5 Bankruptcy. Notwithstanding the foregoing provisions of this Section 17,
if any Mortgagee is prohibited from commencing or prosecuting foreclosure or other
32
{
appropriate proceedings in the nature thereof by any process or injunction issued by any
court or by reason of any action by any court having jurisdiction of any bankruptcy or
insolvency proceeding involving Developer, the times specified in Section ,~7.4 for
commencing or prosecuting foreclosure or other proceedings shall be extende~for the
period of the prolu'bition, provided that such Mortgagee is proceeding expedit usly to
terminate such proln'bition and in no event for a period longer than one year.
18. INSURANCE
18.1 Hold Harmless. The Developer agrees to and will 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 duect or indirect operations of the Developer with respect to the Project, to the
extent of the insurance descn'bed below. To the same extent, the Developer agrees to and
will defend the City and its officers, agents, employees and representatives from actions for
damages caused by or alleged to have been caused by reason of the Developer's activities
with respect to the Project.
This "hold harmless" agreement applies to all damages and claims for damages
suffered or alleged to have been suffered by reason of the operations referred to in this
Section.
Before beginning work on the Project, the Developer will obtain the insurance
required under this Section and receive the approval of the City Attorney as to form,
content, amount and carrier and the Developer will maintain such insurance throughout the
term of this Agreement. The insurance will extend to the City, its elective and appointive
boards, commissions, officers, agents, employees and representatives and to the Developer.
In 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 10-days prior written notice
by certified mail to the City Hall, of the cancellation or reduction in coverage of any
insurance.
18.1.1 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.
18.1.2 Public Liability and Property Dama¢e 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
33
$100,000.00 for damage to the property of each covered person on account of any one
occurrence.
19. GENERAL PROVISIONS
19.1 Development Exactions. Nothing in this Agreement is intended to~limit the
application of Government Code Section 66000 et seq to any Development Exactions.
19.2 Recitals. The Recitals in this Agreement are material and aze incorporated
herein by reference as though fully set forth herein.
19.3 Exhibits. Any Exhibit to this Agreement is incorporated herein by reference
as though fully set forth herein.
19.4 Applicable Law. This Agreement will be construed and enforced in
accordance with the laws of the State of California.
19.5 No Joint Venture. Partnership or Third Party Beneficiary. The City and the
Developer hereby renounce the existence of any form of joint venture. or partnership
between them and expressly agree that nothing contained herein or in any document
executed in connection herewith will be construed as making the City and the Developer
joint venturers or partners. It is understood that the contractual relationship between the
City and the Developer is such that the Developer is an independent contractor and not an
agent of the City. Furthermore, this Agreement is not intended or construed to create any
third party beneficiary rights in any person who is not a party to this Agreement.
19.6 Notices. Any notice or other communication to either party under this
Agreement must be in writing and must be given by delivering the same to such party in
person or by sending the same by certified or registered mail, return receipt requested, or
by overnight mail delivery service, with all costs prepaid, to the following addressees:
City of Lake Elsinore
130 South Main Street
Lake Elsinore, CA 92330
Attn: City Manager
With a Copy To:
John Harper, Esq.
Harper & Burns
453 South Glassell
Orange, CA 92666
34
__
Developer
Hilaron Corporation
c% TMC Developments, Inc.
3080 Bristol Street
Building C, Suite 150
Costa Mesa, CA 92626
Attn: Minoru Chen
President
With a Copy To:
Luce, Forward, Hamilton & Scripps
4250 Executive Square, Suite 700
La Jolla, CA 92037
Attn: Thomas A. May, Esq.
19.7 Severabilitv. If any term, provision, covenant or condition of this
Agreement is determined to be invalid, void or unenforceable by judgment or court order,
then the remainder of this Agreement will remain in full force and effect, unless
enforcement of this Agreement, as so invalidated, would be unreasonable or grossly
inequitable under all the circumstances or would frustrate the stated purposes of this
Agreement.
19.8 Entire Agreement. This Agreement contains all the representations and
constitutes the entire agreement between the City and the Developer. Any prior
correspondence, memoranda, agreements, warranties or representations are superseded in
total by this Agreement.
19.9 Signature Pages: Counteroarts. For convenience, the signatures of the
parties may be placed and aclrnowledged on separate pages and, when attached to this
Agreement, will constitute this document as one complete Agreement.
19.10 Tune. Time is of the essence of this Agreement and of each and every term
and condition hereof.
19.11 Captions. Titles and captions of the various sections of this Agreement are
intended for convenience only and shall not in any way affect the meaning or construction
of any provision of this Agreement.
19.12 Construction. Number and Gender. This Agreement will be construed as
a whole according to its common meaning and not strictly for or against either party in order
to achieve the objectives and purposes of the parties hereunder. Whenever required by the
context of this Agreement, the singular will include the plural and vice versa, and the
35
masculine gender will include the feminine and neuter genders. In addition 'will" is the
mandatory and "may" is the permissive.
CITY
CITY OF LAKE ELSINORE, a municipal
corporation and political subdivision of the State
of Ca~ornia
A T:
City Clerk
DEVELOPER
NORTH PEAK PARTNERS, L.P.,
a California limited partnership
By: HII.ARON CORPORATION,
a California corporation,
as general partner
By. -____----
oru Chen, President
36
STATE OF CALIFORNIA )
ss.
COUNTY OF . ~ 2 )
On S e ew. er 1992 before me, V ~ Ck~ ~c~s c~GV d
personally appeared 1`~ c~,S~, wrv, personally known to me (or proved
to me on the basis of satis c evidence) to be the person whose name is subscribed to
the within instrument and acknowledged to me that he executed the same in his authorized
capacity as the Mayor of the City of Lake Elsinore, California, and that by his signature on
the instrument the person, or the entity upon beh of which the person acted, executed the
instrument.
~~`~
Notary Public
SEAL: 4°°
-
~
r ~
. ~
/
'~ ~
1fICKi Kn
S~
v
,
G
y ~~~ may. C '~^7 ,',' Sc O:i2 C
a\+::---.`~
'~ 0
L!Y Wam. .`~:pB~s AW.?1996
-+
STATE OF CALIFORNIA
~ ss.
COUNTY OF C~~24in R., )
n . (J
On ,,(jg~arrn.%..e~~ ~ , 1992, before mew V l • personally
appeared "Minoru Chen, personally known to (or proved to me on the basis of
satisfactory evidence) to be the person whose na a is subscribed to the within instrument
and acknowledged to me that he/she/they executed the same in his/her/their authorized
capacity as the President of the corporation pursuant to its Bylaws or a resolution of its
Board of Directors, and that by his/her/their signature on the instrument the person(s), or
the entity upon behalf of which the person(s) acted, executed the instrument.
N t Public
OFFICIAL SEAL
SEAL: JANET M. WEiTON
B ~6 fJOTARY PUBLIC -CALIFORNIA
~.; ORANGE CGUNTY
My comm. expires APR 29, 1994 ~
37
EXHIBIT "A"
Legal Description of the Property
Section 17 and portions of Sections 7, 8, 18, 19, 20 and 29 of Township 5 South, Range 4
West of the San Bernardino Meridian in the County of Riverside, State of California,
according to the official Township Plat filed in the District Land Office that is included
within the boundary of a Record. of Siuvey filed in Book 89 Pages 35 through 39 of Records
of Survey in the office of the County Recorder of said County.
EXHIBIT "A'•
EXHIBIT "B'•
Leval Description of Exchange BLM Land
The Northwest Quarter of Section 20 of Township 5 South, Range 4 West of the San
Bernardino Meridian in the County of Riverside, State of California, according to the official
Township Plat filed in the District Land Office that is included within the boundary of a
Record of Survey filed in Book 89 Pages 35 through 39 of Records of Survey in the office
of the County Recorder of said County.
EXHIBIT "B"
'~~~„
EXHIBIT "C'
Legal Description of The Potential Additional Areas
That portion of Section 8 of Township 5 South, Range 4 West of the San Bernardino
Meridian in the County of Riverside, State of California, according to the official Township
Plat filed in the District Land Office that is included within the areas shown as "NOT A
PART" as delineated on a Record of Survey filed in Book 89 Page 35 through 39 of Records
of Survey in the office of the County Recorder of said County.
EXH]BTl' "C..
I
EXHIBIT "D..
Concept Plan:
North Peak Pazk and Recreation Program
I. Introduction
The purpose of this document is to provide a concept plan for the park and
recreation improvements (the "Parks Concept Plan") for the North Peak Planned
Community to be implemented through a Development Agreement between the City
of Lake Elsinore and North Peak Partners. This Parks Concept Plan will serve as
guidelines to the precise layout and design of facilities to be located within any
Community Park. Each Community Park will include all or a portion of the facilities
identified for such park in this Concept Plan. The precise selection of facilities and
their layout and design shall be determined by a consultant retained by Developer
and approved by City, consistent with this Parks Concept Plan as provided in Sections
4.1.4(a), (b) and (c).
As a part of the Lake Elsinore community, North Peak will provide those facilities
appropriate to its role in the overall park and recreation program for the City as
described in its General Plan. Consequently, the North Peak Parks Concept Plan
recognizes the important role played by other existing and proposed facilities in the
long term development of a comprehensive park and recreation program for all the
citizens of Lake Elsinore.
As described by its General Plan, the City of Lake Elsinore provides for a variety of
park uses. The Cleveland National Forest and the Lake Elsinore State Recreation
Areas provide for regional recreation demands. The City's proposed Specific Plan
Areas provide park facilities including Community Parks, Neighborhood Parks, Mini
Parks, Joint-Use School/Parks, Natural/Passive Parks and open space.
In its regional context, the North Peak program will include Neighborhood parks and
naturaUpassive.parks. All of the parks will be public and open to all Lake Elsinore
residents. The nature of these types of parks is that its primary users will likely be
the residents of the surrounding local neighborhoods. Neighborhood parks will
provide facilities for active recreation, like little league diamonds and soccer fields,
as well as picnic areas and tot-lots.
Neighborhood parks will also provide a unique opportunity to enhance the image and
identity of the overall North Peak community, as well as each village. In North Peak,
the neighborhood parks are centrally located adjacent to the Village Centers to take
EXHIBIT "D" page 1
I
advantage of this. Each village in North Peak will have at least one neighborhood
park.
For more passive recreation, North Peak provides fora 230-acre Nature Perk in the
northeast corner of the community adjacent to over 1,000 acres of public lands owned
by the Bureau of Land Management. North Peak is also served by other open space
available for public use including significant azeas of natural open space that contains
hiking and equestrian trails.
II. Basic Design Criteria
A. Maximum slope of 10% in areas to receive park credit (except Nature Park);
2% maximum on playing fields.
B. Off-street parking will be determined by the City based on types and
concentration of facilities.
III. Definitions
A. Game baseball field
1. Two types; little league and softball
2. Approximately 2.5-3.5 acres depending on type (including surroundings)
3. 200 min. foul lines for little league; 300 min. foul lines for softball
4. Raised pitcher's mound (Little League only)
5. Permanent brick dust infield
6. Large backstop
7. Dugouts
8. Bleachers
9. Lit field criteria
a) reduced glaze fixtures
b) no light to be cast on surrounding residential azeas
c) limited operating hours (off at 11:00 PM)
B. Practice baseball field
1. Approximately 2-3 acres (including surroundings)
2. 175-250 ft. foul lines
3. Small backstop
4. All grass playing area
C. Soccer%football field
1. Approximately 1.5 acres (including surroundings)
2. 150 ft. x 300 ft. (AYSO standard)
3. All grass
EXHIBIT "D" page 2
,\
%~.
4. No overlap with game baseball infield; overlap with outfield of game
field and entire practice field permitted.
5. Removable goals
D. Tot Lot ~
1. Approximately .25-.50 acres, including surroundings
2. Play area with A.D.A. approved surface
3. Play structure (may vary in size and character)
4. Benches around perimeter
E. Tennis Courts
1. 60 ft. x 120 ft. enclosures, typical
2. Chain link fence surrounding
3. Concrete foundation
4. Lighting criteria
a) reduced glare fixtures
b) no light to be cast on surrounding residential areas
c) limited operating hours (off at 11:00 PM)
F. Public Restroom
1. Maximum one structure per park; need for restrooms to be determined
in accordance with then applicable City standards
2. Separate men's and women's restrooms
3. Concrete block structure with veneer tom ch pazk theme
4. Located near parking and tot lot for easy eillance
IV. North Peak H~71s (Village n
A. Central Park
1. 14 acres
2. Game baseball fields (2), little league
3. Soccer fields (2)
4. Tot Lot (1)
5. Off-street parking (maximum 60 cars)
6. Picnic facilities; sun shelter
7. Public rest rooms (1 building)
8. Walks, landscaping
9. Hardcourt basketball azea (4 half-courts)
V. North Peak Valley (Village II)
A. Central Park
1. 17 acres contiguous
EXHIBIT "D" page 3
2. Game baseball fields
a) softball fields (2)
b) night lighting provided
3. Practice baseball fields (2) ~
4. Soccer/football field (2, overlap with practice baseball fields)(
5. Hardcourt basketball area (half-courts)
6. Tennis courts (4)
7. Tot Lot (1)
8. Off-street parking (maximum 100 cars)
9. Picnic facilities; sun shelter
10. Public restrooms (1 building)
11. Walks, landscaping
12. Fire Station site
VI.
North Peak Highlands (Village II))
A. Central Park
1. 18 acres.
2. Entire area hydroseed with turf and irrigated.
3. Facilities to be determined by City
B. Nature Park
1. ±230 acres; 25 acres usable as passive play areas
EXHIBTT "D" page 4
1
EXHIBIT "E"
Conditions to Approval of Specific Plan 90-2
EXHIBIT "E"
mxas:soxa or a:rROn-t, mt arscznq PL1111 so-:
1. Ths text e! !hs August 1lf0 version et the North Peak Specific
Plan and Eewlronmsntal Impact Report shall ~bs rwiaed to
inoorpesau ootzmotions and rwisions and any++ typographical
errors aubsaquant to approval o! the Spaeitie Plan and
Emvironmenul Zspset Aeport. A legible sat of apaeilio Plan
and Lmrironmental impact Repent exhiblu shah ba made a part
Ot tbm final documents. A final speoitia Plan and
Yavirotaental Impact Report shall be eubmittad for zwiew and
approval by the Ceaunity Owelopment Diraetor within 70-days
o! appswal o! tltim speeilLe Plan and tnvironmantsi impact
Report. Re pmssit shall be issued until final adminiatratiw
approval o! file speeilSe Plan and tnvisorimental Impact Report
by the Community Development Dirseter.
~. Dweleper shall comply with all LIR mitigation neasurss as
ldsntilled in the North Paak xleigaelon Kenieerinq Program.
7. Donblm tronllttq lots On primary or saeondary aLraata shall
)taus a minimum lot depth a! 1~0 teat as measured from 6aek of
Curb er a eombinaelon o! the increased parkway width and lot
depeh is order to create sulLioisnt separation from friars more
heavily traveled'atraats.
~. Prom yard aatbacks for garages as measured lrem back of curb
shall be seventeen-tact (17'), with mines variations Lor
le~t~(1o d as sub peep teoattsapa pptroval aoLm ih~ Planning
Commission.
S. side yard setbacks` Mall be a minimum o! live-face (s~) with
theca-Last (7') of level ground exoludinq slopes. Lerner iota
shall have a satbaek o! a minimum o! tan-feat (iD~, of which
Live-Lint (S') shall Da lsvei ground.
6. the side and zur elwatiens o! hoses shall be wall assigned
and given enhanced arehiteetural treatmene, eapeelally when
they will bi visible from puhllo right-atwaY.
7. An open spoor Plan shall dallneata araa• to be within
hossewners' aemeaiation easamentm and otl+er r..aintenanca
respensibiliLiss and shall bs appzove4 by trio Community
pwalopaent 0lseator and use Cem•unity tarvieae Director.
s. A nalghberheod entry mem~ment and median Drt4sam shall be
designed ter use eJSroughout the Specific Plan Asia. Plaeasant
et et-tsy menumantation shah ba in eomplianea with the City~s
sight-dlttanes atandasds.
9. Slopes on individual iota that era in axessa of three-teee
lnsulled Dy the dwalopastndseapsd and irrigation shall be
i0. A wall and fencing plan shall be developed which dasignatad
whose trio various fencing types era to be loeatad. S.e.,
deeerative masonry, or a eombinatien vreughs iron and
deCOrativa masonry or reed. Sold wail and lsneinq plan snail
prohibit weed Loneiaq unlus prwisiens ass nods for :
hemaevnars~ asseeiatien to encase maihtenanee. the wall and
looting plan shall be rsvLeved and spproved by the comunicy
Dwelopment Direeeor prior is tentative ea- approval.
11. In order ee break up small let rasidentlsl fubdivialo r.e vitA
various typos e! span apace, residential projects o! S.c~o
square toee lots or lean shall Da loeatad adSaeent t~ Fa~sive
and/er active open apses.
EXHIBIT E - 1 ; ._~,.;•L,~; ---'
,^ ~~_ ~
.___.. _ -
,,
eo~asr=oa,t oP >,Ppaot7,>r Pei arsesP:a PsaA Po-~ conrsxasa
if. Fos einglt•tuily dataehtd heusingr en-atrttt parking snap be
psevidtd at a saizslsssa of otu (11 epaea pas unit/lot. on-
etssat paskirq can ba aggseqattd within a naighb(oshood.
1]. p so~td(ss1 vit~Lb~ es~sesP Sa~~_~~~slup te'taaaxi.muaiot
eensesalattsvith (ths ippsovalaet tht airy cnginats of design
la' ~k~" °tp~i~t~ Cusps a~hallsewe bt~illoved.pentad for ono
1S. W a~et L~ llaru{gaf~ov°~nes pp mil! sna !71 od Control
Oiatsie{t tae111tita oatsida the public right-of-way shell ba
p~sivata~wa~isita 7111 opus apses arras ovnid by,thsehotaovnerar
auoeia)t~i~ ~ ~~~i~tia~O~111~~i~uRtis d tinsa
City.
par tht pso-isions e! Conditlen'17 about.
is. single-taaily deaignaead plarmi{{g asau vhied have a ainisum
let slat of s,d0d aslaara fast shall have an avtsaga lot size
o! a,S00 aquast tact. arse eha assbar et 5,000 stare loot lots
shall net axotad tvtnty p.mne (1oq of tea total units (/00
units) avasaq~d outs all singlt-!tally paresis within Cash
village.
17, cpnditions, Cevananta, and Atstrietions (CC i A's) shall be
appseval a ptartin~vitihytL~~l~ttal0otatha tisat tentative
riser sap.
e+•ildiea_ ++d~satet~[
la. rht awsiasttit gfada ton any aamtlsetestd alopt shall ba 1:1 er
SOt es se say ba approved by the Wiat Sulldinq O[fielal based
upon redeaaandatione by • sells engineer en elope stability.
1!. Conteus gsaditq shell bt ptaetietd tbron9AOUt the prey set by
Wit14 natural ensure and wsiabla alepts, ineludinq variations
to the atandasd 3s1 slops. ~sqt
20. t0 evo~d angnlas layout os rigid q os rile patternlfagnad
11. Casaga deer epenare shall bt installed in all residential
unite. Sn etau vhase gasaga deers are see back less than 20-
tyl~Q atesd shall b ~iub~aet ee iduign ~saviev up deors shall :e
r..--..situ sarvieea
__, Any tentative tvlp appseved pursuant to this Speeitic Plan
eba11 ptrovide for she olLtr et dtdieation e! park land in
aoaesdanee vit.h eht ttlloviaq aehtdulas (i) dtdieation of e!:e
~ths ~ist!(lfedal eefplek{ (ll)retl~! torn dad! +tion otntne
pbaN i2i Past[ (17 aesaal prier t0 iatuanet of the 1.9ootn
ruidantlai buildiaq ptssit in tht Spteltle Plan arcs, -nd
paseeltolnthe k Curt Park In V~llag~ Z pridsito isavancacot
arear~and~(iilj iet~tisator dsdiea<Senroit tht Ph• ~pIV1PdLKP(1{
asses) prior to ietuanea et the ~,000tb safidentlal buildlr.q
Darfit in ens Spaeaiie Plan aru. and dtdieation eo a Duelle
N toil Pazk p oz tto Saawnea t~eRein~.00otha residential
bnildinq parait in the fpeeltie Plan area.
EXHIBIT E - 2
_, ___
__
•
coYasrzosa op appaoaw roe gpaeipse pray se-: coarzxoaa
33. Dwalopar shall participate il: the City of Lake Llaihora city-
vida Landscaping and Street Lighting Districg pursuant to
Resolution ai-27.
le. prior to appswal o! ehs tirst tsnutiva map wtthln rtes
jurisdietian of eeop school district, applicant shall have
sneered into a school iapaet mitigaeion agreement with the
appropriate school district or, City sds11 have consldsrad the
adagnaey of seboel laoilities or availabls means et iinanelnq
eohool tae111tia ee meat the seeds and demand oL hsv
dwalopnant psoposad in lush tentstlw map to be ^pproved by
tbs Clty.
2s. The landscaped per)nay vidtA for crban Artssials. Major
Righvays, and cellaeter Stssets shall ba a minimua of
a!ghteen-Lase (ls') maasusad Lroa back e! curb. An average
thirty-a1Y-feet-vide (36') latrlsaapad parkway msasured along
the entire, lsngth of each serest is desired and can ba
aaditied ss tae tsntatlva map appsowi sub~aet to the
Cossunity Devalopauuft Dlrsator's approval. It is the meant
of thle attTtdard to alloy to! reductions of the 36' avtsaga
ios streets vitls vans on only one aids. Tba parkway gradi•ne
parpMdieular t0 the curb shall Ds i marimum of S:1 within
the liras eighteen-tact (le') of parkway measured item Dack oL
enrb. The sssaininq landscaped parkway may be graded to a
aaximsa 2:1 slope.
la. The raquireaent o! the City's multi-purpose trail plan shall
ba incorporated am part of any tanLativa tract map submittal.
37. The Nature park shall lmelude at least tvaney-Live (33) acres
of sully aecsssible public park arse puzsuane ee cloy
seandardsr available ibr uses such as picnic areas, trails.
toe lees or ether retied areas. said park shall be credited
towards the pse~aets cesplianee with the city•a park
dedieatien psevislons.
EXHIBIT E -3 ~: -,;,._,~; ,~~.~
~Zi?~gr c!~':~~~1
______
__
EXHIBIT "F,.
Feasibility Study Credits t'+
d~
TMC Developments has paid the following invoices for services specifically related to State
Route 74 program development and coordination:
Invoice Description Date Amount Status
7242-PDI SR74 Jan 92 5,169.75 Paid-TMC
7282-PDI SR74 Feb 92 5,974.75 Paid-TMC
7347-PDI SR74 Mar 92 6,899.75 Paid-TMC
7395-PDI SR74 Apr 92 6,733.66 Paid-TMC
7466-PDI SR74 May 92 7,025.92 Paid-TMC
674-CLE SR74 July 92 25,000.00 Paid-TMC
674-CLE SR74 July 92 10.000.00 Paid-TMC
Total: $66,803.83
H:WOMEU.DB~PXHIBIIP
EXHIBIT "F'
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 was read for adoption
on August 25, 1992 and'was passed on second reading September 8, 1992,
by the following vote:
AYES: COUNCILMEMBERS: ALONGI, CHERVENY, DOMINGUEZ,
WASHBURN
NOES: COUNCILMEMBERS: NONE
ABSENT: COUNCILMEMBERS: NONE
ABSTAIN: COUNCILMEMBERS: WINKLER
~^/rte
CKINE K AD, CITY CLERK
CITY CF LAKE LSINORE
(SEAL)
STATE OF CALIFORNIA )
COUNTY OF RIVERSIDE ) SS:
CITY OF LAKE ELSINORE)
I, Vicki Lynne Kasad, City Clerk of the City of Lake Elsinore,
DO HEREBY CERTIFY that the above and foregoing is a full, true and
correct copy of Ordinance No. 938 of said Council, and that the
same has not been amended or repealed.
/~D ED: September 9, 1992
VICKI LYNNE K D, CITY CLERK
CITY OF LAKE SINORE
(SEAL)