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HomeMy WebLinkAboutOrd. No. 1997-1024 '. ORDINANCE NO. lQ.24 AN ORDINANCE OF THE CITY COUNCn.. OF THE CITY OF LAKE ElSINORE, CALIFORNIA, APPROVING DEVELOPMENT AGREEMENT WITH FIRST FINANCIAL GROUP, me, RECITALS WHEREAS, the City of Lake Elsinore is a party to certain litigation entitled ~ Elsinore Associates v. I~ke Elsinore Redevelo,pment Aeency, et. al., Riverside County Superior Court Case No. 243468; and, \\'HEREAS, in settlement of the above reference litigation, the City and Redevelopment Agency entered into the Settlement Agreement on or about January 9, 1996; and, WHEREAS, one of the conditions precedent to releasing the Lis Pendens filed by the above-referenced Plaintiff and ultimately dismissal of the above-referenced litigation, is the entering into the Development Agreement with the Plaintiff, pursuant to Government Code Section 65864 - 65869.5 memorializing the terms of the Settlement Agreement; aud, \\'HEREAS, the proposed Development Agreement memorializes the terms of the Settlement Agreement, a copy of which Development Agreement is attached hereto as Exhibit "A". NOW, TIlEREFORE BE IT ORDAINED AS FOLLOWS: 1. That the foregoing recitals are true and correct; 2. That the City of Lake Elsinore does hereby enter into the Development Agreement with First Financial Group, Inc., as more specifically set forth in Exhibit "A" attached hereto and made a part hereof. - INTRODUCED AND APPROVED UPON FIRST READING by title only, this 19th day of December, 1996, upon the following roll call vote: AYES: COUNCILMEMBERS: - ALONGI, BRINLEY, METZE, P APE NOES: COUNCILMEMBERS: KELLEY ABSENT: COUNCILMEMBERS: NBNE ABSTAIN: COUNCILMEMBERS: NONE PASSED, APPROVED AND ADOPTED UPON SECOND READING by title only, this @8 th day of January, 1996, upon the following roll call vote: AYES: COUNCILMEMBERS: ALONGI, BRINLEY, METZE, PAPE NOES: COUNCILMEMBERS: KELLEY ABSENT: COUNCILMEMBERS: NONE ABSTAIN: COUNCILMEMBERS: NONE ATIEST: 2. (:1L% ~ ! j;)/tj a City Clerk ,,/\ l /' Il/~' , .d . !/jL(.; i L Malor / / i ./ /' I /1. J / r-alLi / (J/; ~- // APPROVED: ,~ City Attorney STATE OF CALIFORNIA ) COUNTY OF RIVERSIDE ) SS: CITY OF LAKE ELSINORE) - I, VICKI KASAD, CITY CLERK OF THE CITY OF LAKE ELSINORE, DO HEREBY CERTIFY that the foregoing Ordinance was read by title only for adoption on December 19, 1996, and passed on January 28, 1997, by the following roll call vote: AYES: COUNCILMEMBERS: ALONGI, BRINLEY, METZE, P APE NOES: COUNCILMEMBERS: KELLEY ABSENT: COUNCILMEMBERS: NONE ABSTAIN: COUNCILMEMBERS: NONE 2f~u VICKI KASAD, CITY CLERK CITY OF LAKE ELSINORE (SEAL) STATE OF CALIFORNIA ) COUNTY OF RIVERSIDE ) SS: CITY OF LAKE ELSINORE) I, VICKI 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. 1024 of said Council, and that the same has not been amended or repealed. DATED: January 29, 1997 ~~W VICKI KASAD, CITY CLERK CITY OF LAKE ELSINORE (SEAL) .. 102326 .- RECEIVED FOR RECORD AT 8:00 O'CLOCK PLEASE COMPLETE THIS INFORMA rlON RECORDING REQUESTED BY AND WHEN RECORDED RETURN TO: MAR 2 7 1997 City Clerk City of Lake Elsinore 130 South Main Street Lake Elsinore, CA 92530 ........ irI OlIollllftotdS ".....~. c"'*"'- ?lLFH:1:L .ACE A80YE 'OR IlECOOP'S USE OHL Y L~ HI::> THIS AREA FOR RECORDERvg USE ONLY' THIS PAGE ADDED TO PROVIDE ADEQUATE SPACE FOR RECORDING INFORMATION ($3,00 Additional Recording Fee Applies) Slc;.sc.so -. s..a-_ 7. , elI5 102326 RECORDING REQUESTED BY AND WHEN RECORDED RETURN TO: Recording Fees Exempt Due to Government Code Section 27383 City Clerk City of Lake Elsinore 130 South Main Street Lake Elsinore, CA 92530 City Clerk, City of Lake Elsinore ----------------------------------------------------------------- (Space Above Line for Recorder's Use Only) , , DEVELOPMENT AGREEMENT BETWEEN THE CITY OF LAKE ELSINORE AND FIRST FINANCIAL GROUP, INC. (Pursuant To Government Code Sections 65864 - 65869.5) '- 11. 12. 13. 14. 15. 16. TABLE OF CONTENTS 1. 2. 3. Definitions. . . . . . . . . . .. . . . . . . . . . Exhibits . . . . . . . . . . . . . . . . . . . . . . . . Mutual Benefits . . . . . . . . . . . . . . . . . . 3.1 Benefits to City. . . . . . . . . . . . . . . 3.2 Benefits to Developer . . . . . . . . . . . . . . Interest of Developer . . . . . . . . . . . . . . . . . Binding Effect of Agreement . . . . . . . . . . . . . . Project as a Private Undertaking .......... Term . . . . . . . . . . . . . . . . . . .. . . . . Hold Harmless ... . . . .. ........... 8.1 By Developer. . . . .. . . .. . . . 8. 2 By City . . . . . . . . . . . . . . . . . . . . . Vested Right . .. . . . . . . . . . . .. . . . 9.1 Conflicting Enactments. .. . . . . . . . . . 9.2 Intent of Parties . . . . . .. . . . . . . . . . . General Development/Administration/Processing of the proj ect . . . . . . . . . . . . . . . . . . . . . . . . 10.1 Project . . . . . . . . . . . .. .... 10.2 Phasing and Timing of Development 10.3 Future Approvals. . . . . . . . . . . . . 10.4 Effect of Agreement on Future Land Use Approvals 10.5 Financing of Public Facilities and/or Services. . 10.6 Public Services and Facilities; Off-Site Improvements; Reimbursement Requirements . . . 10.6.1 Public Services and Facilities. 10.6.2 Reimbursement Requirements. . . . . . . 10.6.3 Utilities............. 10.6.4 Developer's Off-Site Improvements . . . 10.6.5 Infrastructure capacity . . . 10.7 Assessments and Fees. . . . . . . . . . . . . . . 10.8 Term of Tentative Maps and Other Project Approvals . . . . . . . . . . . . . . . . . . . . 10.9 Processing During Third Party Litigation. . . . . 10.10 Other Governmental Bodies . . . . . . . . . . . . 10.11 Design/Development Standards. . . . . . . . . . . 10.12 Development Agreement/Project Approvals . . . Rules, Regulations and Official Policies . . . . . . . . 11.1 New Rules . . . . ... . . . . . . . . . . . . . . 11.2 Subsequent Actions and Approvals. . . . . . . . . 11.3 State and Federal Laws. . . . . . . . . . . . . . Revisions to Agreement . . . . . . . . . . . . . . . 12.1 Amendment or Cancellation of Agreement. . . . . . 12.2 Administrative Changes and Amendments . . . . . . Enforcement . . . . . . . . . . . . . . . .. .. . Periodic Review of Compliance with Agreement . .. . Events of Default . . . . . . . . . . . . . 15.1 Default by Developer. . . . . . . . . ... . 15.2 Default by City . . . . . . . . . . . . . . . . . 15.3 Specific Performance Remedy . . . . .. . . . Institution of Legal Action . . .. ....... . 4. 5. 6. 7. 8. 9. 10. lUSn.. VER 25624 232078 7 i 1'. r')3"6 \:40.. 40 ~ 3 5 5 5 5 6 6 6 6 6 6 7 7 7 8 8 8 8 9 9 10 10 10 12 12 13 13 13 13 14 14 14 15 15 15 15 15 15 15 16 16 16 17 17 17 18 18 02111/97 1C2326 EAsa 17. Attorneys' Fees . . . . . . . . . . . . . . . . . . 19 18. Cooperation in the Event of Legal Challenge . . . . .. 19 19. Waivers and Delays ........ .. . . . 20 19 .1 Waiver. . . . . . . . . . . . . . . . . . . . 20 19.2 Third Parties . . . . . . . . . . . . . . . . .. 20 19.3 Force Majeure . . . . . . . . . . . . . . . . . . 20 20. Notices . . . . . . . . . . . . . . . . . . . . . . . . 20 21. Transfers and Assignments . . . . . . . . . . . . . 21 21.1 Right to Assign .. .. . . . . . . . .. 21 21.2 Liabilities Upon Transfer . .. ..... .. 21 22. Authority to Execute . . . . . . . . . . . . . . . . . . 22 23. statement of Compliance . . . . . . . . . .. . . . 22 24. Recordation . . . . . . . . . . . . . . . . . . . . .. 22 25. Protection of Mortgage Holders . . . . . . . . . . . .. 23 26. Entire Agreement . . . . . .. ..... . . . . 24 27. Severability of Terms . . . . . . . . . . .. . . . 24 28. Interpretation and Governing Law. . . . . . . . 24 29. Section Headings . . . . .. .. . . . . . . . . . . 24 30. Incorporation of Recitals and Exhibits . . . . . . . 24 31. Rules of Construction and Miscellaneous Terms . . . 24 31.1 Gender. . . . . . . . . . . .. .. . . . .. 24 31.2 Time of Essence . . . . . . . . . . . . . . . . . 24 31.3 Cooperation . . . . . . . . . . . . . . . . . . . 24 31.4 Limitation of Liability . . . . . . . . . . . . . 25 32. Applicable Rules. . . . . . . . . . . . . . . . . . 25 RlSIL VER 25624 232078 7 ii 02118/97 1('2326 :0-- DEVELOPMENT AGREEMENT (Pursuant To Government Code Sections 65864 - 65869.5) This DEVELOPMENT AGREEMENT ( "Agreement") is entered into as of this 28th day of February, 1997, between FIRST FINANCIAL GROUP, INC., a California corporation ("Developer"), and the CITY OF LAKE ELSINORE, a municipal corporation organized and existing under the laws of the State of California ("City"). Developer and City are sometimes collectively referred to herein as the "parties." RECITALS A. These Recitals refer to and utilize certain capitalized terms which are defined in this Agreement. The parties intend to refer to those definitions when they are used in these Recitals. B. Government Code SS 65864 - 65869.5 ("Development Agree- ment Law") authorize City to enter into binding development agreements with persons having a legal or equitable interest in real property for the development of such property, all for the purpose of strengthening the pubic planning process, encouraging private participation in comprehensive planning and reducing the economic costs of development. C. This Agreement is adopted pursuant to the Development Agreement Law. This Agreement is also intended by City and Developer to implement the terms and conditions of that certain Settlement Agreement dated January 9, 1996 among the City, the Agency, Developer, Lake Elsinore Associates and ECB whereby the terms for settling the litigation known as Lake Elsinore Associates vs. Lake Elsinore Redeve10Dment Agencv. et a1.. Riverside County SUDerior Court Case #243468 are set forth. D. In June 1993, City adopted and approved the Specific Plan in order to protect the interests of its citizens and the quality of the community and environment through the specific plan process (Government Code SS 65450, ~ ~.). The Specific Plan implements the goals and policies of the City's General Plan (the "General Plan") and provides balanced and diversified land uses in order to maintain the overall quality of life and of the environment within City and to impose appropriate requirements with respect to land development and usage. E. As part of the process of approving the Specific Plan, City undertook, pursuant to the California Environmental Quality Act ("CEQA"), the required analysis of the environmental effects which would be caused by development of the property that is covered by the Specific Plan (the "Specific Plan Property"). City imposed a series of mitigation measures in connection with the development of the Specific Plan Property to eliminate or reduce to a level of insignificance many significant adverse RISn.;Va. 25624 232078 7 1 02118197 1C2326 impacts caused by the development of the Specific Plan Property. As to those significant adverse impacts which could not be eliminated or reduced to a level of insignificance, the City Council of City (the "City Council") adopted a statement of overriding considerations pursuant to CEQA setting forth why the beneficial aspects of development of the Specific Plan Property outweighed those significant adverse impacts which could not be eliminated or reduced by mitigation measures. On May 25, 1993, the City Council adopted Resolution No. 93-28, certifying the environmental impact report ("EIR") prepared for the Specific Plan as being complete and adequate and complying with CEQA. F. On January 9, 1996, the Redevelopment Agency of the City of Lake Elsinore ("Agency") approved a Form of Purchase and Sale Agreement between Agency and Developer pursuant to which, Agency agrees to sell to Developer and Developer agrees to purchase from Agency approximately 80 acres of land within the Specific Plan Property, as depicted on the map attached hereto as Exhibit "A" and more particularly described in the legal description attached hereto as Exhibit "B" (the "Property"). Developer therefore owns a legal or equitable interest in the Property, as required by the Development Agreement Law. G. Developer proposes to develop the Property as a single family residential development consisting of no less than four hundred (400) single family residential units on a variety of lot sizes suitable for the construction of a variety of product types, depending on market considerations, and associated on-site and off-site improvements (the "Project"). H. The Project will be capital intensive, especially in its initial phases, requiring major investment in public facili- ties and on-site and off-site improvements prior to the construc- tion and sale of housing in order to make the Project economic- ally and fiscally feasible. Recognizing that the Project will be capital intensive and will be developed in stages over a period of time and recognizing Developer's need for certainty in its development of the Project, City and Developer have agreed to enter into this Development Agreement pursuant to and in accord- ance with the Development Agreement Law and the City Enacting Ordinance. I. On December 4, 1996, the Planning Commission of City (the "Planning commission"), after a duly noticed public hearing, recommended that the City Council not approve this Agreement. J. Pursuant to and in accordance with CEQA, City prepared a Mitigated Negative Declaration for the Project and this Agreement and determined that the Mitigated Negative Declaration satisfied CEQA with respect to the Project and this Agreement. K. On January 14, 1997, the City Council, after a duly noticed public hearing, adopted Ordinance No. 1024, approving this Agreement, which Ordinance became effective on February 28th, 1997 (the "Effective Date"). RlSn. VER 2562A 232078 7 2 OV18197 1C2326 L. City has found and determined that the execution of this Agreement is in the best interests of the public health, safety and general welfare of City and its residents and that adopting this Agreement constitutes a present exercise of its police power. M. The City Council has found that the Project and this Agreement are consistent with the General Plan and the Specific Plan. NOW, THEREFORE, with reference to the foregoing Recitals and in consideration of the mutual promises, obligations and coven- ants herein contained, the parties hereto agree as follows: 1. Definitions. 1.1 "Additional Off-Site Improvements" is defined in Section 10.6.1(d) below. 1.2 "Agency" is the Redevelopment Agency of the City of Lake Elsinore. 1.3 "Agreement" is this Development Agreement. 1.4 "Applicable Rules" are all of the rules, regulations and official pOlicies of City in effect as of the Effective Date, including without limitation, the Specific Plan, and the Project Approvals, which govern the permitted uses of the Property, and which govern the design, improvement and construction standards and specifications applicable to development of the Property. 1.5 "CEQA" is defined in Recital E above. 1. 6 "City" is the City of Lake Elsinore, California. 1.7 "City Council" is defined in Recital E above. 1. 8 "Ci ty Enacting Ordinance" means Chapter 17.85 of the City Municipal Code. 1.9 "Developer" is First Financial Group, Inc., a California corporation, and its successors in interest to all or any part of the Property. 1.10 "Developer's Off-Site Improvements" is defined in Section 10.6.1(d) below. 1.11 "Development Agreement Law" is defined in Recital B above. 1.12 "ECB" is defined in Section 10.6.1(a) below. 1.13 "Effective Date" is defined in Recital K above. en. VER 25624 232078 7 3 02118/97 1C2326 -- 1.14 "EIR" is defined in Recital E above. 1.15 "Future Approvals" is defined in Section 10.3 below. 1.16 "General Plan" is defined in Recital D above. 1.17 "Improvement Security" is defined in Section 10.11(c) below. 1.18 "Mortgagee" is defined in section 25 below. 1.19 "Planning Commission" is defined in Recital I above. 1.20 "Project" is defined in Recital G above. 1.21 "Project Approvals" shall mean all City approvals, acceptable to Developer, necessary for the design, development and construction of the Project including, without limitation, a vesting tentative tract map, all site development and design approvals and conditional use permits. 1.22 "Property" is defined in Recital F above. 1.23 "Purchase and Sale Agreement" means that certain Purchase and Sale Agreement dated February 28, 1997, between the Agency and Developer, whereby the Agency agrees to sell and Developer agrees to purchase the Property. 1.24 "Related Parties" is defined in Section 31.4 below. 1.25 "$600,000 Credit" is defined in Section 10.6.1(d) below. 1.26 "Specific Plan" is the East Lake Specific Plan, as amended, originally adopted by City Council Ordinance.No. 955 on June 8, 1993, pursuant to Government Code SS 65450, At IAg. 1.27 "specific Plan Property" is defined in Recital E above. 1.28 "Subdivision Improvement Agreement" is defined in Section 10.11(c) below. 1.29 "Subsequent Rules" is defined in Section 9.1 below. 1.30 "Village of South Shore" shall mean that portion of the Specific Plan Property depicted on the map attached hereto as Exhibit "0". mn. VEll2562A 232078 7 4 C1lJ18!V7 . 1C232G 2. Exhibits. The following documents are referred to in this Agreement, attached hereto and incorporated herein by this reference: Exhibit DescriDtion DescriDtion A C Map showing the Property Legal Description of the Property Developer's Off-Site Improvements Map showing Village of South Shore B D 3. Mutual Benefits. This Agreement is entered into for the purpose of carrying out the development of the Project in a manner that will ensure certain anticipated benefits to both City, including, without limitation, residents of City, and Developer as set forth in this Section. City and Developer agree that, due to the size and duration of the Project, certain assurances on the part of each party as to the Project will be necessary to achieve those desired benefits. 3.1 Benefits to Citv. The benefits to City (including, without limita- tion, the residents of City) under this Agreement include, but are not limited to, the following: (a) Fulfilling long-term economic and social goals for City and the community; (b) Providing both short-term construction employment and long-term permanent employment within City; (c) Coordinating phasing of public facilities with private development; (d) Providing housing which helps to satisfy City's obligation to meet City's share of regional housing needs; and (e) StimUlating and encouraging the development of the Specific Plan Property. 3.2 Benefits to DeveloDer. Developer has expended and will continue to expend substantial amounts of time and money on the planning, infrastru~ture construction and development of the Project. In oaYER 25624 232078 7 5 02118197 1 (~2326 addition, Developer will expend substantial amounts of time and money in constructing public improvements and facilities and in prcviding for public services in connection with the Project. Developer would not make such expenditures without this Agree- ment, and such expenditures will be made in reliance upon this Agreement. The benefit to Developer under this Agreement consists of the assurance that Developer will preserve the vested right to develop the Project as approved in accordance with this Agreement and the Applicable Rules. 4. Interest of DevelQDer. Developer represents that Developer has a legal or equitable interest in the Property. 5. Bindina Effect of Aareement. The terms and conditions of this Agreement shall be binding upon and inure to the benefit of the parties and their successors and assigns. All of the provisions of this Agreement shall constitute covenants running with the land. 6. Pro;ect as a Private Undertakina. It is specifically understood and agreed by and between the parties hereto that the development of the Project is a private and not a public sector development, that neither party is acting as the agent of the other in any respect hereunder, and that each party is an independent contracting entity with respect to the terms, covenants and conditions contained in this Agree- ment. No partnership, joint venture or other association of any kind is formed by this Agreement. The only relationship between City and Developer is that of a government entity regulating the development of private property by the owner of such Property. 7. 1.G:m. The term of this Agreement shall commence upon the Effective Date and shall continue for a period of fifteen (15) years. This Agreement shall terminate with respect to any lot and such lot shall be released and no longer be subject to this Agreement, without the execution or recordation or any further documents, when a certificate of occupancy has been issued for the building(s) on the lot. 8. Hold Harmless. 8.1 By DeveloDer. Developer shall defend and hold City and Agency, their officers, agents, employees, partners and representatives harmless ~rom liability for damage or claims for damage for personal injury, including death and claims for property damage, en. VEIl 2S624 23207& 7 6 02111/97 10212~ which may arise from the activities of Developer or those of Developer's contractors, subcontractors, agents, employees or other persons acting on Developer's behalf which relate to the Project, to the extent of insurance coverage that is commercially and economically available. 8.2 Bv City. City shall hold Developer, its officers, agents, employees, partners and representatives harmless from liability for damage or claims for damage for personal 'injury, including death and claims for property damage, which may arise from the activities of City or those of City'S contractors, subcontrac- tors, agents, employees or other persons acting on City'S behalf which relate to the Project. City agrees to and shall defend Developer and its officers, directors, shareholders, agents, employees, partners and representatives from actions for damages caused or alleged to have been caused by reason of City'S activi- ties in connection with the Project. 9. Vested Riaht. By entering into this Agreement and relying thereon, Developer is obtaining a vested right to proceed with the development of the Project, but subject to any remaining discre- tionary approvals required in order to complete the Project as contemplated by the Applicable Rules and by this Agreement (which discretion shall be exercised in accordance with the Applicable Rules). By entering into this Agreement and relying thereon, City is securing certain public benefits which help to alleviate potential adverse situations in City and enhance the public health, safety and welfare. City therefore agrees to the following: 9.1 Conflictina Enactments. Any change in the Applicable Rules, including, without limitation, any change in any applicable general, area or specific plan, zoning, subdivision or building regulation, adopted or becoming effective after the Effective Date, includ- ing, without limitation, any such change by means of an ordin- ance, initiative, resolution, policy, order or moratorium, initiated or instituted for any reason whatsoever and adopted by the City Council, Planning Commission or any other agency, board, commission or department of City, or any officer or employee thereof, or by the electorate, as the case may be, which would, absent this Agreement, otherwise be applicable to the Property and which would conflict in any way with or be more restrictive than the Applicable Rules ("Subsequent RUles"), shall not be applied by City to the Property. Developer may qive City written notice of its election to have any Subsequent Rule applied to the Property, in which case such Subsequent Rule shall be deemed to be an Applicable Rule. en. VEIl. 25624 232078 7 7 02118/97 j 1C2325 9.2 Intent of Parties. No City-imposed moratorium or other limitation (whether relating to the rate, timing or sequencing of the devel- opment or construction of all or any part of the Property, whether imposed by ordinance, initiative, resolution, policy, order or otherwise, and whether enacted by the City Council, Planning Commission, an agency, board, commission or department of City, or any officer or employee thereof, or the electorate, or otherwise) affecting parcel or subdivision maps (whether tentative, vesting tentative or final), building permits, occupancy certificates or other entitlements to use or service (inclUding, without limitation, water and sewer) approved, issued or granted within City, or portions of City, shall apply to the Property to the extent such moratorium or other limitation is in conflict with this Agreement; provided, however, the provisions of this Section shall not affect City's compliance with moratoria or other limitations mandated by other governmental agencies or court-imposed moratoria or other limitations. 10. General Develooment/Adminis~ration/Processina of the Proiect. 10.1 Proiect. While this Agreement is in effect, Developer shall have a vested right to develop the Project generally in accordance with the terms and conditions of this Agreement, and in accordance with, and to the extent of, the Applicable Rules, and subject to any remaining discretionary entitlements required in order to complete the Project, which discretionary entitlements shall be processed in accordance with the Applicable Rules. Except as otherwise specified in this Agreement, the Applicable Rules shall control the overall design, development and construction of the Project and all on-site and off-site improvements and appurtenances in connection therewith, including, without limitation, all mitigation measures required in order to minimize or eliminate any material adverse environment 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 pubic purposes and other terms and conditions of development applicable to the Property shall be those set forth in this Agreement and the Applicable Rules. Notwithstanding the foregoing, City shall not impose any architectural standards or require any architectural, design review or similar approvals to be obtained from the City, other than those set forth in the Applicable Rules. 10.2 Phasina and Timina of Develooment. The parties acknow1edqe that a1thouqh Developer currently anticipates that the Project will be phased and con- structed generally in five to eight phases over an approximate five to eight year time frame, at the present time Developer lUSn. YEll 25624 232078 7 8 02118/97 1('2325 cannot predict when or the order in which Project phases will be developed. Such decisions depend upon numerous factors which are not within the control of Developer, such as market orientation and demand, interest rates, competition and other similar factors. To the extent permitted by the Applicable Rules and this Agreement, Developer shall have the right to develop the Project in phases in such order and at such rate and times as Developer deems appropriate within the exercise of its subjective business judqment. City shall timely process, in as expeditious a manner as is possible for processing such matters, any necessary entitlements to use, including, without limitation, vesting tentative tract maps, tentative tract maps, parcel maps, final maps, site development permits, special use permits, conditional use permits, or any other discretionary approvals or entitlements to use contemplated by the Applicable Rules, and any grading permits, building permits, improvements permits, wall permits, occupancy certificates and construction and other ministerial permits and approvals applied for by Developer in accordance with the Applicable Rules. Notwithstanding the foregoing, Developer shall be required to submit a complete tentative tract map application on or before July 1, 1997. Failure to do so shall allow City to terminate this Agreement at its option, upon written notice to Developer on or before August 1, 1997. 10.3 Future ADDrovals. Any development of the Property shall require all discretionary approvals required by the Applicable Rules, including, without limitation, parcel maps, vesting tentative tract maps and development and design review approvals (collec- tively, the "Future Approvals"). Upon approval of each Future Approval, such Future Approval shall become part of the Project Approvals and the Applicable Rules, and Developer shall have a "vested right," as that term is defined under California law, in and to each such Future Approval by virtue of this Agreement. 10.4 Effect of Aareement on Future Land Use ADDrovals. In connection with any approval which City is permitted or has the right to grant under this Agreement relating to the Project, or otherwise under the Applicable Rules, City shall exercise its discretion or take action in a manner which complies and is consistent with the Applicable Rules 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 and to the height, density and intensity of use specified in this Agreement or with the rate of development selected by Developer. In connection with (and not by way of limitation of) the preceding sentence, the vesting tentative tract map for the Project and all other Project Approvals shall authorize no less than 400 single family residential lots with a variety of lot sizes, acceptable to Developer, that are suitable for the construction of a variety of single family product types. IUSJL VEIl 2S62A 232078 7 9 02118197 1 f_l2326 10.5 Financina of Public Facilities and/or Services. City agrees to cooperate with Developer and to take all actions necessary to establish one or more Mello-Roos Districts and/or assessment districts covering all or a portion of the Property to enable the issuance of bonds to finance Developer's Off-site Improvements and any other improvements required in connection with the development of the Project. City agrees that Developer shall not be required to participate and the Property shall not be included in any existing or future public financing arrangements including, without limitation, any Mello-Roos District and/or assessment district, other than a Citywide Landscaping and Lighting District or any other existing districts established prior to the Effective Date pursuant to the Applicable Rules. 10.6 Public Services and Facilities: Off-Site ImDrovements: Reimbursement Reauirements. 10.6.1 Public Services and Facilities. (a) With respect to the design and development of the Project, Developer shall be relieved from any dedication requirements relating either to a park site or a school site. A 10-acre school site shall be provided pursuant to an existing agreement between Eastlake Community Builders, LLC ("ECB") and the Elsinore Unified School District to provide school facilities. Such school site shall be located within the Village of South Shore, at a location other than the Property. A 5-acre park site shall be provided by ECB (at a location other than the Property) in ECB's first construction phase in the Specific Plan Property. (b) Notwithstanding the provisions of any Applicable Rule or any other provision of this Agreement, all park fees and park site dedication requirements that might otherwise be imposed as a condition to the development of the Project are hereby waived by City and shall not be imposed as a condition to any Project Approval. (c) City shall use its best efforts to cause an agreement to be reached between Developer and the Elsinore Unified School District with regard to all school fees for the Project. (d) Developer shall be obligated to construct those "off-site" improvements described in Exhibit "C" hereto (the "Developer's Off-site Improvements"). Any additional off-site improvements to those listed in Exhibit "CIt, whether constructed inside or outside the Project boundaries, that are necessary for the development of the Project or are required to service other properties outside the Project boundaries (either as independent facilities or by way of oversizing Project facilities) including, without limitation, storm drain systems, RISJLVEll2562.4 2320787 10 lrV11/97 1C2326 drainage, sewer, water, and other utilities ("Additional Off-Site Improvements") shall be the sole financial obligation of the city. Upon request by City, Developer shall, from the $600,000 credit described in the Purchase and Sale Agreement (the "$600,000 Credit") or, if such credit is exhausted, from any other sources of funds available to City, construct such Additional Off-Site Improvements. Developer's obligation to construct any Additional Off-Site Improvements in accordance with City's request shall be conditioned upon City confirming, to the reasonable satisfaction of Developer, that funds are immediately available to pay for the construction of such Additional Off-Site Improvements (upon Submission of bills for work as it progresses) and that all legal requirements applicable to the construction of such Additional Off-Site Improvements have been satisfied. To the extent Additional Off-site Improvements are constructed by Developer, Developer shall be credited with and reimbursed for the design and construction costs associated with such Additional Off-site Improvements, including contractor's general conditions, including, without limitation, costs of surveying, engineering, architecture, bonds, permit and inspection fees, insurance and overhead equal to five percent (5%) of all documented costs for such Additional Off-site Improvements. Subject to the provisions of this Section 10.6.1(d) and Section 10.6.1(e) below, Developer shall not be relieved of the obligation to pay any development fees, except as specifically set forth in this Agreement. (e) Prior to expending any portion of the $600,000 credit, City hereby agrees to expend such portion of the $600,000 Credit as shall be required (a) to construct Additional Off-Site Improvements that will provide ingress and egress for the Project, including, without limitation, off-site streets, curbs, gutters, sidewalks, storm drain systems, drainage, sewer, water, other utilities and related grading improvements to service the Project and (b) to construct Additional Off-Site Improvements consisting of storm drain systems, drainage, sewer, water and any other utilities within the Property that are required to service other properties outside the Project boundaries. City agrees that all Additional Off-site Improvements shall be constructed in a timely fashion so as not to delay in any manner the development of the Project. Following completion of such Additional Off-Site Improvements, any remaining portion of the $600,000 Credit may be used for the construction of such other off-site improvements as City may select, such selection to be in the sole and absolute discretion of City. To the extent the cost of Additional Off-site Improvements exceeds the $600,000 Credit, City shall be obligated to pay such excess. City and Developer hereby agree that the Purchase and Sale Agreement will provide that, as a condition to closing, City and Developer will estimate City'S cost to design and construct the Additional Off-site Improvements. After deducting the $600,000 Credit from the estimate, the balance will be set aside in a segregated account and will be used to pay the cost of designing and constructing the Additional Off-Site Improvements. City and Developer shall mutually agree on the details for establishing and administering the segregated RlSn. VEIl 25624 232078 7 11 02111197 102326 account. other than the Developer's Off-site Improvements, no Project Approval shall require any construction, dedication, fees, taxes, exactions (including, without limitation, any reimbursement to any other developer) or conditions relating to Additional Off-Site Improvements in connection with the development of the Project. (f) City agrees that it will issue such partial grading permits and construction permits as shall be necessary for Developer to construct marketing models at locations within the Property selected by Developer. In addition, City agrees that marketing signage may be placed along the perimeters of the Property in such locations as shall be selected by Developer. 10.6.2 Reimbursement Reauirements. Subject to the provisions of Sections 10.6.1 Cd) and (e) above, City hereby acknowledges and agrees that notwithstanding any provision of the Subdivision Map Act or any Applicable Rule, Developer shall not be required by City, and no Project Approval shall have as a City imposed condition any requirement, to construct, install or otherwise provide financing for the oversizing of any public facilities or infrastructure improvements benefiting lands outside the Property. Nothing in the preceding sentence shall preclude conditions relating to the oversizing of public facilities or infrastructure improvements benefiting lands outside the Property to the extent such conditions are imposed by a non-City controlled third party agency or utility; provided, however, in no event shall any condition to any Project Approval contain any condition or requirement relating, directly or indirectly, to the construction, installation or financing of any oversized storm drain facilities or infrastructure improvements without the prior written consent of Developer, which consent may be given or withheld in Developer's sole and absolute discretion. To the extent that oversizing of any public facilities or infrastructure improvements are permitted in accordance with the provisions of this section 10.6.2, City shall enter into a reimbursement agreement with Developer, setting forth the mechanism for imposing a fee, assessment or charge upon lands outside the Property to such land's pro-rata share of the benefits public facilities or infrastructure improvements. 10.6.3 utilities. Subject to the provisions of Sections 10.6.1 Cd) and (e) above, City shall be obligated, at its sole cost, to provide underground electrical, gas, water, sewer, drainage and storm drain facilities to the Property boundary. I.ISIL VER. 25624 232078 7 12 02118/97 1~\232~ 10.6.4 Developer's Off-site Imcrovements. City agrees that the only off-site improvements that Developer shall be required to pay for and install shall be the Developer's Off-Site Improvements. 10.6.5 Infrastructure Cacacitv. City hereby acknowledges that, after reasonable investigation by City of agencies that provide utilities including, without limitation, the Elsinore Valley Municipal Water District, to the best of City's knowledge, sufficient capacity will exist in the existing infrastructure, services and utility systems, including, without limitation, flood control, sewer collection, sewer treatment, sanitation service and, except for reasons beyond City's or any such agency's control, water supply, treatment, distribution and service, to accommodate the Project as provided in this Agree- ment. To the extent that City renders such services or provides such utilities, City hereby agrees that it will serve the Project and that there shall be no restriction on hookups or service for the Project except for reasons beyond City's control. 10.7 Assessments and Fees. Subject to the provisions of Sections 10.6.1 (d) and Ce) above, City shall not, without the prior written consent of Developer, impose any tax, exaction, dedication, assessment or fee applicable to the development of the Project or any portion thereof, or impose any tax, exaction, dedication, assessment or fees as a condition to the implementation of the Project or any portion thereof, except those taxes, exactions, dedications, assessments and fees in effect on the Effective Date. Notwithstanding the foregoing, fees payable to city pursuant to the Applicable Rules shall be at rates applicable on the date the fee is due and payable. This Section shall not be construed to limit the authority of City to charge normal and customary application, processing, and permit fees for land use entitlements, building permits, and other similar permits and entitlements, which fees are designed to reimburse City's expenses attributable to such application, processing and per- mitting and are in force and effect on a City-wide basis at such time as said entitlements or permits are granted by city. 10.8 Term of Tentative Macs and Other Proiect Accrovals. Pursuant to Government Code Section 66452.6(a) and 65863.9, the term of any subdivision or parcel map approved for all or any portion of the Project and the term of each of the Project Approvals shall be extended for a period of time through the scheduled termination date of this Aqreement as set forth in Section 7 above. en. VEJllS62A 232078 7 13 02118/97 1 ~'2326 10.9 Processina Durina Third Partv Litiaation. The filing of any third party lawsuit(s) against City or Developer relating to this Agreement or to other develop- ment issues affecting the Property shall not delay or stop the development, processing or construction of the Project, approval of future discretionary approvals, or issuance of ministerial permits or approvals, unless the third party obtains a court order preventing the activity. City shall not stipulate to the issuance of any such order. 10.10 Other Governmental Bodies. To the extent that City, the city Council, the Planning Commission or any other City agency constitutes and sits as any other board or agency, it shall not take any action that conflicts with City's obligations under this Agreement. 10.11 Desian/DeveloDment Standards. Notwithstanding the provisions of the Applicable Rules, the following design/development standards shall apply to the Project: (a) The Project shall be permitted to include cul-de-sacs and dead-end streets up to 750 feet in length; (b) Easements dedicated for pedestrian use shall be permitted to include easements for underground drainage, water, sewer, gas, electricity, telephone, cable and other utilities and facilities so long as they do not unreasonably interfere with pedestrian use; and (c) If any work of improvement required by any tentative subdivision map conditions is not completed or any monuments are not set prior to the recordation of any final map, Developer shall enter into an agreement with City ("Subdivision Improvement Agreement") to complete the remaining improvements and shall furnish to City security (as required by Section 66499 of the Subdivision Map Act) ("Improvement Security"). Any application by Developer for a one year extension of the Subdivision Improvement Agreement shall be granted by City provided that the Improvement Security remains in full force and effect during such one year extension. Prior to the end of the second year, an additional one year extension may be requested by Developer and provided that City is satisfied that any work of improvement that has not yet been completed will be completed within the additional one year period, Developer's request shall be granted provided the Improvement Security continues to remain in full force and effect during such additional one year extension. RJSn. VElt 25624 232078 7 14 02111197 1(1232S 10.12 DeveloDment A9reement/Pro;ect AD9rovals. In the event of any inconsistency between any Project Approval and this Agreement, the provisions of this Agreement shall control. 11. Rules. Reaulations and Official Policies. 11.1 New Rules. This Agreement shall not prevent City from applying the following new rules, requlations and policies: (a) Amendments or modifications to the City's Uniform Building Code, Uniform Plumbing Code, Uniform Mechanical Code, Uniform Electrical Code or Uniform Fire Code provided that such amendments or modifications are applied on a City-wide basis; and (b) Rules, requlations and policies which are in conflict with the Applicable Rules or this Agreement if such rules, requlations and policies have been consented to in writing by Developer. 11.2 Subseauent Actions and ADDrovals. 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 Applic- able Rules, nor shall this Agreement prevent City from denying or conditionally approving any subsequent development project appli- cation on the basis of the Applicable Rules or new rules, regulations and policies. 11.3 State and Federal Laws. In the event that state or Federal laws or regulations enacted after this Agreement is executed prevent or preclude compliance with one or more of the provisions of this Agreement, such provisions of this Agreement shall be modified or suspended as may be necessary to comply with such State or Federal laws or regulations; provided, however, that this Agree- ment shall remain in full force and effect to the extent it is not inconsistent with such laws or regulations and to the extent such laws or regulations do not render such remaining provisions impractical to enforce. 12. Revisions to Aareement. 12.1 Amendment or Cancellation of Aareement. This Agreement may be amended or canceled in whole or in part only by mutual consent of the parties in the manner provided for in Government Code Section 65868. en. va 25624 232078 7 15 02111/97 1 ~:232S 12.2 Administrative Chanaes and Amendments. The parties acknowledge that refinements and further development of the Project may demonstrate that changes are appropriate with respect to the details and performance of the parties under this Agreement. The parties desire to retain a certain degree of flexibility with respect to the details of the Project development and with respect to those items covered in general terms under this Agreement. If and when the parti.s find that changes or adjustments are necessary or appropriate, they shall, unless otherwise required by law, effectuate such changes or adjustments through administrative amendments approved by the City Planning Director or his/her designee, which administrative amendments, after execution, shall be attached hereto as addenda and become a part hereof, and may be further changed and amended from time to time as necessary, with approval by City and Devel- oper. Any such administrative changes or amendments shall not be deemed to be an amendment to this Agreement under Government Code Section 65868, and unless otherwise required by law, no such administrative amendments shall require prior notice or hearing. Notwithstanding the foregoing, the following matters shall not be considered administrative changes or amendments, but shall be considered substantive amendments which shall be reviewed by the Planning Commission and approved by the City Council in accordance with Government Code 565868: (a) uses of the Property; (b) Increase in the density or intensity of use or the number of lots; Material alteration of the permitted (c) Increase in the maximum height and size of permitted buildings; and (d) Deletion of a requirement for the reservation or dedication of land for public purposes except for minor boundary adjustments approved by the Planning Director or his/her designee. 13. Enforcement. Unless amended or canceled as provided in section 12 above, or modified or suspended pursuant to Government Code Section 65869.5, this Agreement is enforceable by either party hereto notwithstanding any change in any applicable general or specific plan, zoning, subdivision or building regulation or other applicable law or regulation adopted by City, which alters or amends the Applicable Rules or the rate, timing or sequencing of any development. 14. Periodic Review of ComDliance with Aareement. City and Developer shall review this Agreement at least once every twelve (12) months from the date this Agreement is en. va 25624 232078 7 16 lrl/11197 102326 executed. During each periodic review, each party is required to demonstrate good faith compliance with the terms of this Agree- ment. Each party agrees to furnish such reasonable evidence of good faith compliance as the other party in the exercise of its reasonable discretion, may require. Such periodic review shall be conducted administratively by the City Manager and any appro- priate department heads designated by the City Manager to perform such periodic review. The City Manager shall report the results of such period review to the City Council within thirty (30) days after the conclusion thereof. No public hearing shall be held by the City Manager, Planning Commission or City Council with regard to such periodic review; provided, however, that if the City Manager during such period review preliminarily finds, based on substantial evidence, that Developer is not in good faith compli- ance with this Agreement, Developer shall have the right to appeal such finding to the City Council. The City Council on appeal shall not hold a public hearing to review a finding that Developer is not in good faith compliance with this Agreement unless so requested by Developer in writing at the time of the submission of such appeal. City shall notify Developer in writing of the date for review at least thirty (30) days prior thereto. 15. Events of Default. 15.1 Default bv DeveloDer. If the City Council determines on the basis of substantial evidence upon appeal of the City Manager's decision pursuant to Section 14 hereof that Developer has not complied in good faith with the terms and conditions of this Agreement, it shall, by written notice to Developer, specify the manner in which Developer has failed to so comply and state the steps Developer must take to bring itself into compliance. If, within sixty (60) days after the effective date of notice from City specifying the manner in which Developer has failed to so comply, Developer does not commence all steps reasonably necessary to bring itself into compliance as required and thereafter dili- gently pursue such steps to completion, then Developer shall be deemed to be in default under the terms of this Agreement and City may terminate this Agreement. 15.2 Default bv Citv. If Developer determines on the basis of substan- tial evidence that City has not complied in good faith with the terms and conditions of this Agreement, Developer shall, by written notice to City, specify the manner in which City has failed to so comply and state the steps City must take to bring itself into compliance. If, within sixty (60) days after the effective date of notice from Developer specifying the manner in which City has failed to so comply, City does not commence all steps reasonably necessary to bring itself into compliance as required and thereafter diligently pursue such steps to comple- tion, then City shall be deemed to be in default under the terms RISn. va 2.5624 232078 7 17 02111/97 102325 of this Agreement and Developer may terminate this Agreement and/or seek damages and/or specific performance as set forth in Section 15.3 below. 15.3 Specific Performance Remedy. Due to the size, nature and scope of the Project, it will not be practical or possible to restore the Property to its natural condition once implementation of this Agreement has begun. After such implementation, Developer may be foreclosed from other choices it may have had to utilize the Property. Developer has invested significant time and resources and performed extensive planning and processing of the Project in agreeing to the terms of this Agreement and will be investing even more substantial time and resources in implementing the Project in reliance upon the terms of this Agreement, and it is not possible to determine the sum of money which would adequately compensate Developer for such efforts. For the above reasons, City and Developer agree that damages would not be an adequate remedy if City fails to carry out its obligations under this Agreement. Therefore, specific performance of this Agreement is the only remedy which would compensate Developer if City fails to carry out its obligations under this Agreement, and City hereby agrees that Developer shall be entitled to specific performance in the event of a default by City hereunder. Notwithstanding the foregoing, nothing this Agreement is intended to deprive Developer from recovering appropriate damages in the event that the terms of this Agreement are breached. City and Developer acknowledge that if Developer fails to carry out its obligations under this Agreement, City shall have the right to refuse to issue any permits or other approvals to which Developer would otherwise have been entitled pursuant to this Agreement. Therefore, City'S remedy of terminating this Agreement shall be sufficient in most circumstances if Developer fails to carry out its obligations hereunder. Notwithstanding the foregoing, if City issues a permit or other approval pursuant to this Agreement in reliance upon a specified condition being satisfied by Developer in the future, and if Developer then fails to satisfy such condition, City shall be entitled to specific performance for the sole purpose of causing Developer to satisfy such condition. The City'S right to specific performance shall be limited to those circumstances set forth above, and City shall have no right to seek specific performance to cause Developer to otherwise proceed with the development of the Project in any manner. 16. Institution of Leaal Action. Subject to the limitations set forth in Section 15 above, in addition to any other rights or remedies, either party may institute legal action to cure, correct or remedy any default, to enforce any covenants or agreements herein, to enjoin any threatened or attempted violation hereof, to recover damages for any default, or to obtain any other remedies consistent with Un.VB 256U 232078 7 18 crv18197 102326 the purpose of this Aqreement. Any such legal action shall be brought in the Superior Court for Riverside County, California. Pursuant to Code of civil Procedure sections 638, At ~., all legal actions shall be heard by a referee who shall be a retired judge from either the Riverside County Superior Court, the California Court of Appeal, the united States District Court or the United States Court of Appeals, provided that the selected referee shall have experience in resolving land use and real property disputes. Developer and City shall aqree upon a single referee who shall then try all issues, whether of fact or law, and report a finding and judgment thereon and issue all legal and equitable relief appropriate under the circumstances of the con- troversy before such referee. If Developer and City are unable to agree on a referee within ten (10) days of a written request to do so by either party hereto, either party may seek to have one appointed pursuant to Code of civil Procedure Section 640. The cost of such proceeding shall initially be borne equally by the parties. Any referee selected pursuant to this Section 16 shall be considered a temporary jUdge appointed pursuant to Article 6, Section 21 of the California Constitution. 17. Attornevs' Fees. If legal action is brought by either party against the other for breach of this Agreement, or to compel performance under this Agreement, the prevailing party shall be entitled to an award of reasonable attorneys' fees and costs. Attorneys' fees under this Section shall include attorneys' fees on any appeal and, in addition, a party entitled to attorneys' fees shall be entitled to all other reasonable costs and expenses incurred in connection with such action. In addition to the foregoing award of attorneys' fees to the preyailing party, the prevailing party in any lawsuit shall be entitled to its attorneys' fees incurred in any post-judgment proceedings to collect or enforce the judgment. This provision is separate and several and shall survive the merger of this Agreement into any judgment on this Agreement. 18. CooDeration in the Event of Leaal Challenae. In the event of any legal action instituted by a third party or other governmental entity or official challenging the validity of any provision of this Agreement, the parties hereby agree to cooperate in defending such action, each party shall pay its own expenses in connection with such defense. In the event of any litigation challenging the effectiveness of this Agree- ment, or any portion hereof, this Agreement shall remain in full force and effect while such litigation, including any appellate review, is pending. lUSIL VEIl. 25624 232078 7 19 02118/97 1e232S 19. Waivers and Delays. 19.1 Waiver. Failure by a party to insist upon the strict performance of any of the provisions of this Agreement by the other party, and failure by a party to exercise its rights upon a default by the other party hereto, shall not constitute a waiver of such party's right to demand strict compliance by such other party in the future. 19.2 Third Parties. Nonperformance shall not be excused because of a failure of a third person except as provided in Section 19.3 below. 19.3 Force Ma;eure. Neither party shall be deemed to be in default for failure or delay in performance of any of its obligations under this Agreement if caused by floods, earthquakes, other Acts of God, fires, wars, riots or similar hostilities, strikes, other labor difficulties, government regulations or other causes beyond either of the parties' control. If any such event shall occur, the term of this Agreement and the time for performance, by Developer of any of its obligations hereunder or pursuant to the Specific Plan shall be extended by the period of time that such events prevent construction of the Project. 20. Notices. Any notice or communication required hereunder between the parties must be in writing and may be given either personally or by registered or certified mail, return receipt requested, by overnight delivery or by facsimile. If given by registered or certified mail, the same shall be deemed to have been given and received on the first to occur of (i) actual receipt by any of the addressees designated below as the party to whom notices are to be sent or (ii) five (5) days after a registered or certified letter containing such notice, properly addressed, with postage prepaid, is deposited in the United States mail. If personally delivered, a notice shall be deemed to have been given when delivered to the party to whom it is addressed. If delivered by facsimile or overnight delivery, a notice shall be deemed to have been given on the earlier of the date personal delivery is effected or on the delivery date or attempted delivery date shown on the air bill or facsimile. Any party hereto may at any time, by giving ten (10) days' written notice to the other party hereto, designate any other address in substitution of the existing address. Such notices or communications shall be given to the parties at their addresses set forth below: lUSn. VEIl 2.S62A 232078 7 20 ClZ/18/97 1'!"3r') ;, \.. "., "- :l TO CITY: City of Lake Elsinore 130 South Main Street Lake Elsinore, California 92530 Attn: City Manager Telecopy No: (909) 674-2392 WITH COPY TO: Harper , Burns 453 S. Glassell Street Orange, CA 92666 Attn: John R. Harper, Esq. Telecopy No.: (714) 744-3350 TO DEVELOPER: First Financial Group, Inc. 16830 Ventura Blvd., suite 600 Encino, California 91436 Attn: Jack Shine Telecopy No: (818) 981-4821 WITH COpy TO: Paul, Hastings, Janofsky , Walker 555 South Flower Street, 23rd Floor Los Angeles, California 90071-2371 Attn: Anthony Rossi, Esq. Telecopy No: (213) 627-0705 Cox, Castle , Nicholson 2049 Century Park East, 28th Floor Los Angeles, California 90067 Attn: Ronald I. Silverman Telecopy No: (310) 277-7889 Either party may change the address stated herein by giving notice, in writing, to the other party and thereafter notices shall be addressed and submitted to the new address. WITH COPY TO: 21. Transfers and Assianments. 21.1 Riaht to Assian. Developer shall have the right to sell, assign or transfer all or portions of the real property comprising the Property to any person at any time during the term of this Agreement. 21.2 Liabilities Upon Transfer. Upon the delegation of all duties and obligations and the sale, transfer or assignment of all or any portion of the Property, Developer shall be released from its obligations under this Agreement with respect to the Property, or portion thereof, so transferred arising subsequent to the effec- tive date of such transfer if (i) Developer has provided to City ten days' written notice of such transfer and (ii) the transferee has agreed in writing to be subject to all of the provisions hereof applicable to the portion of the Property so transferred. Upon any transfer of any portion of the Property and the express IJSIL VEIl 2.5624 232078 7 21 02118/97 1.:'.\Z~l26 assumption of Developer's obligations under this Agreement by such transferee, City agrees to look solely to the transferee for compliance by such transferee with the provisions of this Agreement as such provisions relate to the portion of the Property acquired by such transferee. A default by any transferee shall only affect that portion of the Property owned by such transferee and shall not cancel or diminish in any way Developer's rights hereunder with respect to any portion of the Property not owned by such transferee. The transferee shall be responsible for the reporting and periodic review requirements relating to the portion of the Property owned by such transferee, and any amendment to this Agreement between City and a transferee shall only affect the portion of the Property owned by such transferee. 22. Authoritv to Execute. The person or persons executing this Agreement on behalf of Developer warrant and represent that they have the authority to execute this Agreement on behalf of their corpora- tion, partnership or business entity and warrant and represent that they have the authority to bind Developer to the performance of its obligations hereunder. 23. statement of ComDliance. Within thirty (30) days following any written request which either City or Developer may make from time to time, the other shall execute and deliver to the requesting party a state- ment certifying that: (1) this Agreement is unmodified and in full force and effect or, if there have been modifications hereto, that this Agreement is in full force and effect, as modified, and stating the date and nature of such modifications; (2) there are no current uncured defaults under this Agreement or specifying the dates and nature of any such defaults; and (3) any other reasonable information requested. The failure to deliver such statement within such time shall be conclusive upon the party which fails to deliver such statement that this Agreement is in full force and effect without modification and that there are no uncured defaults in the performance of the requesting party. The City Attorney shall be authorized to execute any certificate. 24. Recordation. This Agreement and any amendment or cancellation hereto shall be recorded in the Official Records of the County of ~iver- side, by the City Clerk within the period required by section 65868.5 of the Government Code; provided, however, that the failure to so record this Agreement within such time period shall not in any way serve as a basis for invalidating or nullifying this Agreement. en. va 25624 232078 7 22 av18/97 102326 --- 25. Protection of Mortaaae Holders. The parties hereto aqree that this Aqreement shall not prevent or limit Developer, in any manner, at Developer's sole discretion, from encumberinq the Property or any portion thereof or any improvement thereon by any mortqaqe, deed of trust or other security device securinq financinq with respect to the Property. City acknowledqes that the lenderes) providinq such financinq may require certain Aqreement interpretations and modi- fications and aqrees upon request, from time to time, to meet with Developer and representatives of such lenderes) to neqotiate in qood faith any such request for interpretation or modifica- tion. City will not unreasonably withhold its consent to any such requested interpretation or modification provided such interpretation or modification is consistent with the intent and purposes of this Aqreement. Any mortqaqee of a mortqaqe or a beneficiary of a deed of trust (ltMortqaqeelt) of the Property shall be entitled to the followinq riqhts and privileqes: 1. Neither enterinq into this Aqreement nor a breach of this Aqreement shall defeat, render invalid, dimin- ish, or impair the lien of any mortqaqe or deed of trust on the Property made in qood faith and for value. 2. The Mortqaqee of any mortqaqe or deed of trust encumberinq the Property, or any part thereof, who has submitted a request in writinq to City in the manner specified herein for qivinq notices, shall be entitled to receive written notification from City of any default by Developer in the perfor- mance of Developer's obliqations under this Aqreement. 3. If City timely receives a request from a Mortqaqee requestinq a copy of any notice of default qiven to Developer under the terms of this Aqreement, City shall provide a copy of that notice to the Mortqaqee within ten (10) days of sendinq the notice of default to Developer. The Mortqaqee shall have the riqht, but not the obliqation, to cure the default durinq the remaininq cure period allowed such party under this Aqreement. 4. Any Mortqaqee who comes into possession of the Property, or any part thereof, pursuant to foreclosure of the mortqaqe or deed of trust, or deed in lieu of such foreclo- sure, shall take the Property, or part thereof, subject to the terms of this Aqreementi provided, however, in no event shall such Mortqaqee be liable for any defaults or monetary obliqations of Developer arisinq prior to acquisition of title to the Prop- erty by such Mortqaqee, except that any such Mortqaqee or its successors or assiqns shall not be entitled to a buildinq permit or occupancy certificate until all delinquent and current fees and other monetary obliqations due under this Aqreement for the Property, or portion thereof, acquired by such Mortqaqee have been paid to city. lUSn. VER 25624 232078 7 23 02118/97 1(;~3~J - 26. Entire Aareement. This Agreement sets forth and contains the entire understanding and agreement of the parties, and there are no oral or written representations, understandings or ancillary covenants, undertakings or agreements which are not contained or expressly referred to herein. No testimony or evidence of any such representations, understandings or covenants shall be admissible in any proceeding of any kind or nature to interpret or determine the terms or conditions of this Agreement. 27. Severabilitv of Terms. If any term, provision, covenant or condition of this Agreement shall be determined invalid, void or unenforceable, the remainder of this Agreement shall not be affected thereby to the extent such remaining provisions are not rendered impractical to enforce. 28. Interoretation and Governina Law. This Agreement and any dispute arising hereunder shall be governed and interpreted in accordance with the laws of the state of California. ,- 29. section Headinas. All section headings and subheadings are inserted for convenience only and shall not affect any construction or inter- pretation of this Agreement. 30. Incorporation of Recitals and Exhibits. Recitals A through M and attached Exhibits "A" through ~ are hereby incorporated herein by this reference as though set forth in full. 31. Rules of Construction and Miscellaneous Terms. 31.1 Gender. The singular includes the plural; the masculine gender includes the feminine; "shall" is mandatory, "may" is permissive. 31.2 Time of Essence. Time is of the essence regarding each provision of this Agreement in which time is an element. 31.3 Coooeration. Each party covenants to take such reasonable actions and execute all documents that may be necessary to achieve the purposes and objectives of this Agreement. mn. VEJt 2.5624 232078 7 24 azt18197 10232S 31.4 Limitation of Liabilitv. City hereby acknowledges and agrees that Developer's obligations under this Agreement are solely those of First Financial Group, Inc. and in no event shall any present, past or future officer, director, shareholder, employee, partner, affiliate, representative or agent of Developer ("Related Parties") have any personal liability, directly or indirectly, under this Agreement and recourse shall not be available against Developer or any Related Party in connection with this Agreement or any other document or instrument heretofore or hereafter executed in connection with this Agreement. The limitations of liability provided in this Section are in addition to, and not in limitation of, any limitation on liability applicable to Developer or any Related Party provided by law or in any other contract, agreement or instrument. 32. ADDlicabIe Rules. Prior to the Effective Date, City and Developer shall use reasonable efforts to identify two identical sets of the Applicable Rules, one set for City and one set for Developer, so that if it becomes necessary in the future to refer to any of the Applicable Rules there will be a common set of the Applicable Rules available to both parties. The parties have executed this Agreement as of the date and year first written above. "CITY": SJGNED AND CERTIFIED THAT A COPY _ 'TH.IS .. ,DQC.t1MENT HAS BEEN DELIVERED TO .,';~.XHEc~1~~?; THE CITY COUNCIL .~~Lj ," - :. By: '. ., .)..,')Jtt " ... 3. ty'. Clerk ". . .. municipal of , . "........ .'. . :~~~~/\ C3.tyAttorney , en. VEIl 25624 232071 7 25 02111/97 "DEVELOPER" : FIRST FINANCIAL GROUP, INC., a California corporation By: ~~ By: Jack l.ne Its: presiden BY:~~ Name: Daniel Shine Its: Assistant Secretary RlSn.. 'V!:R 2562A l3 2078 7 26 1 ,~.: 2328 ~ - O2J11J97 102325 COUNTY OF Los Angeles ) ) SSe ) STATE OF CALIFORNIA On ~Ao.I\...c:J.,\ 10 , 1997, before me, the undersigned, a Notary Public in and for said County and state, personally appeared JACK SHINE and DANIEL SHINE------------------------, personally known to me (e~ ,rave. ,a .e eft ~e ~asis ef satisfaetery ~via~fte~) to be the person(s) whose name(s) ~are subscribed to the within instrument and acknowledged to me that ft~/.^e/they executed the same in ftis:Ae~/their authorized capacity(ies), and that by Ais/A.~/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the within instrument. WITNESS my hand and official seal. r,,~u;~"-Ul -e ~1=la l' ---.......- . LCII ~ Cc:u'Iy _ _ _ _Mt~_~~_l.~_ 1 STATE OF CALIFORNIA ( Li.-G~~(.v\)ll C ' L Notary P 1C v COUNTY OF ) ) SSe ) On , 1997, before me, the undersigned, a Notary Public in and for said County and State, personally appeared personally known to me (or proved to me on the basis of satisfactory evidence) to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the within instrument. WITNESS my hand and official seal. Notary Public RJSn.VER. 25624 232CT71 7 27 C1V11197 EDIBIT "A" Hap 1('232S &A.NCHO \ ::-::.. _ . LIN~ LACUNA, --- ~ ""\... - -- ..:::- N ~ ~ 5502 r- _ ..J __ J5 7 '4S"r- I - - - ---- .J6' I;. - - ~ -- --- ~ .1iil./lJ. - -, -) ~f~l~ 0 I ~ I ~dJtt> ~ ~~/I .., !(O::/ r\I N 8 50r cO 0301 S'JO" I " 7037.031' W /T It') SEE: DETAIL '" B".-i. SHEET 2 .' .... : ~WJ :Q . . g It) I <(~~ (/J . - W ..I <( V If) f:::j I c.j - ,,~ ~~ - -Q:-~- Q:fO ~- r\I ct ~ ---1.. '. 7 ........ N ';~JJ4. J9'41'" -- W ~"'80 34'38'" ~ L=575.51' 00.' \ l?~'tt \ \ ~ "~,.o J,~ ",<,\ ,;,-::,. t~\\\ \~~.-; ~\\~.~ \' ~ ' \~~O \ \ aJu.tW. - -- - - - .... " " " ..... N .370"',34-E " .30.00' ..... II ..... I " 011 " II " /1 I 1'// 1//$ 11/ .......'<? /// c., 11/ 011/ .# ;1 ~ I, I o~ 11/ t; (Com;RUNE OF' VIUAGE DR. IS TANGENT TO RANCHO UNE) <(OJ:=- rj} \ .. /" ~ / ~ I " \ RlSn. VE,R 25624 232071 6 1 lcrJll96 1C2326 ---- .'1/ 7go 't~ MALAG 0 - !22t~.5~W-- - ~ RO!<D ~ . ~ I 145.47' -~---~ \ : ~ ! ( \ \ I ~ 0 ~ ;., \ ~ 110 ~ 000 N o III "" 0 Co I lo.I lI'liD <It 0 ;;- I "0 3 0 10 01' I en <2 '. lI'liD NlC N 01 N 110 3 1110 I ~ . ':' ~ <2~ ~ <I~ I 0 ~... II'l fJ - N II'l 0"" ...I . II lOa; ~ lC ~ 8..J ,% 1 Z = ~ g I ~ Ill"" III I cl:: Z II I ~ 8 N I . - \,.. ,,0' \ ~ .... ~ II) 3 I - z ~\ ,. ~ iD '" \, ~\ , 6\ -z. V1' \~\ ~ I ..., \0 - ;., o o - f' N ;., ,., . - 10 z DETAIL " A" N BJO 1S'30"W 737..31' " 8" ~ ii: . Ol ~ (t) <.C -- DET AIL ~ _ . () W. ~A.~~-M. 1h.t./9'- F'RED W. CROWE. 1..5. 31598. EXP. '6/30/00 KEITH INTERNATIONAL. INC. 22690 CACTUS AVE.. STE. 300 MORENO VALLEY. CA 92~~3 (909) 653-0234 1USn. VEa 25624 232071 6 2 Icnll96 EDIBIT "B" 1::;2325 Leqal D..cription PARCEL B A PORTION OF FRACTIONAL SECTION 16, TOWNSHIP 6 SOUTH, RANGE 4 WEST, SAN BERNARDINO MERIDIAN, ACCORDING TO UNITED STATES GOVERNMENT SURVEY THEREOF, TOGETHER WITH PORTIONS OF ELSINORE ROAD AND STONEMAN STREET. TOGETHER WITH PORTIONS OF LOT 7 IN BLOCK "G" AND LOTS 16 AND 29 BLOCK H OF THE RESUBDIVlSION OF BLOCK "D" OF ELSINORE. AS SHOWN BY MAP BOOK 6, PAGE 296, SAN DIEGO COUNTY RECORDS TOGETHER WITH A PORTION OF PARCEL 5 OF PARCEL MAP 27852, RECORDED IN PARCEL MAP BOOK 182 PAGES 19 THROUGH 24, RIVERSIDE COUNTY RECORDS. ALL DESCRIBED WITHIN THE FOLLOWING METES AND BOUNDS DESCRIPTION: BEGINNING AT THE SOUTHWESTERLY CORNER OF SAID PARCEL 6 OF SAID PARCEL MAP 27852: THENCE SOUTH 10- 21' 45" WEST ON THE SOUTHERLY PROLONGATION OF THE EASTERLY RIGHT OF WAY LINE OF DIAMOND DRIVE AS SHOWN ON SAID MAP 1108.67 FEET: THENCE SOUTH 34- 38' 15" EAST. 35.36 FEET: THENCE SOUTH 79.- 38' 15" EAST, 105.85 FEET TO THE BEGINNING OF A CURVE CONCAVE SOUTHWESTERLY AND HAVlNG A RADIUS OF 1834.00 FEET: THENCE SOUTHEASTERLY ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF 5S- 31' 02" A LENGTH OF 1905.11 FEET TO A POINT ON THE NORTl:iEASTERLY PROLONGATION OF THE SOUTHEASTERLY LINE OF SAlD LOT 7 BLOCK "G" OF ELSINORE, A RADIAL LINE THERETO BEARS NORTH 6S- 52' 47" EAST: THENCE NORTH 37. 11' 34" EAST ON SAID NORTHEASTERLY PROLONGATION 1277.99 FEET TO A POINT ON THE SOUTHWESTERLY RIGHT OF WAY LINE OF MISSION TRAIL THAT IS 30. FEET MEASURED AT . RIGHT ANGLES FROM SAID STREET CENTERLINE: THENCE NORTH 18- 56' '18" WEST ALONG SAlD 30-FOOT RIGHT OF WAY LINE 920.80 FEET: DSaOSENB 2SOI__. 1~'''3?S '"' -., .... THENCE SOUTH 71- 03' 42" WEST 20 FEET TO THE SOUTHEASTERLY CORNER OF SAID PARCEL 5 OF PARCEL MAP 27852: THENCE NORTHERLY AND WESTERLY ALONG THE BOUNDARY OF SAID PARCEL 5 AS FOLLOWS: THENCE NORTH 18- 56' 18" WEST 879.99 FEET: THENCE NORTH 61- 33' 21" WEST 33.97 FEET: THENCE SOUTH 71- 03" 18" WEST 17.97 FEET TO THE BEGINNING OF A CURVE CONCAVE NORTHERLY AND HAVlNG A RADIUS OF 580 FEET: THENCE WESTERLY ALONG SAID CURVE THROUGH A CENTRAL ANGLE 29- 18' 27" A LENGTH OF 296.68 FEET: THENCE NORTH 79- 38' 15" WEST 60 FEET TO THE BEGINNING OF A CURVE CONCAVE NORTHERLY AND HAVlNG A RADIUS OF 511.87 FEET: THENCE WESTERLY ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF 5- 43' 03" A LENGTH OF 51.08 FEET: THENCE NORTH 73- 55' 12" WEST 50.25 FEET TO THE BEGINNING OF A CURVE CONCAVE SCUTHERLY AND HAVlNG A RADIUS OF 491.87 FEET: THENCE WESTERLY ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF 5- 43' 03" A LENGTH OF 49.08 FEET: THENCE NORTH 79- 38' 15" WEST 145.47 FEET TO A POINT ON THE NORTljERLY LINE OF SAID PARCEL 5 THAT IS SOUTH 79- 3S' 15- EAST 47.04 FEET FROM THE NORTHWESTERLY CORNER OF SAID PARCEL 5: THENCE SOUTH 05- 59' 29" WEST AND LEAVlNG THE BOUNDARY OF SAID PARCEL 5 602.99 FEET TO THE SOUTHEASTERLY CORNER OF SAID PARCEL 6 OF PARCEL MAP 27852: THENCE NORTH 79- 38' 15" WEST 868.00 FEET TO THE POINT OF BEGINNING. llSn. VD 2'624 232071 6 2 Ilnll96 EXHIBIT 'C' 1"\"3".~ v.c;. .....J DEVELOPER'S OFF-SITE IMPROVEMENTS DESCRIPTION CIVIL ENGINEERING/PLANNING CIVIL ENGINEERING/DESIGN CIVIL ENGINEERING/MISCELLANEOUS BLUEPRINTS SOILS/PRELIMINARY SOILS/GRADING PLAN SOILS/GRADING PROCESSING rEES ROAD rEES SEWER rEES WATER rEES STORM DRAIN FEES BONDS GRADING EROSION CONTROL BLOCK WALLS STREET/SIDEWALK CONSTRUCTION STREET/SIDEWALK FINALS STORM DRAIN CONSTRUCTION* STORM DRAIN FINALS- SEWER CONSTRUCTION SEWER FINALS ELECTRICAL GAS UTILITY TRENCHING TELEPHONE T.V. WATER CONSTRUCTION WATER FINALS NOTE: * Except as qualified by the asterisK (*) below, the "Developer's Off-Site Improvements" shall be limited solely to improvements to be constructed within the Project boundaries. "Developer's Off-Site Improvements" shall specifically exclude any improvements that are required to be constructed anywhere outside the Project boundaries including, without limitation, improvements that are required to be constructed within the Project's perimeter rights- of-way. Storm drain improvements shall be limited solely to improvements that are necessary for the collection and transport of storm waters generated from within the Project boundaries. Storm drain improvements shall specifically exclude any improvements (on-site or off- site) that would be required to collect and transport storm waters generated from outside the Project boundaries. en. vu ~624 2&1092 I .. " exH1~\,- v """'" ~ A \~., /:)'?:::.: . ~..... \ \,' ~". ','\ ~.,.,..~.~.. "!. & ':' :\, \~, . .- ~ ..-----.. ;"\' t,', .. ""\, ' ~ ':\ [ ,-.-"- =~~~. q,.~:.~",.. V/n"~ AGG" ot= ' , '! "C"cC"'&~ .. ..... "" , L' ,C:~, I ""::" "'~ ' ! .- -L- ~"~_' ...' L.. .:'. ?: ....... ~~ . ~~" fr' 'Ti=' .. " ! 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