HomeMy WebLinkAboutItem No. 12 Devel Agrmnt Village at Lakeshore PrjctText File
City of Lake Elsinore 130 South Main Street
Lake Elsinore, CA 92530
www.lake-elsinore.org
File Number: ID# 17-346
Agenda Date: 9/12/2017 Status: Public HearingVersion: 1
File Type: ReportIn Control: City Council / Successor Agency
Agenda Number: 12)
Page 1 City of Lake Elsinore Printed on 9/7/2017
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REPORT TO CITY COUNCIL
To:Honorable Mayor and Members of the City Council
From:Grant Yates, City Manager
Prepared by: Justin Kirk, Principal Planner
DATE:September 12, 2017
PROJECT: Development Agreement For The Village At Lakeshore Project-A
request by Sunwood Lakeview, LLC for approval of a Development
Agreement pursuant to California Government Code Sections 65864-
65869.5 in connection with the development of 163 condominiums on an
approximately 20 acre site located at the northwest corner of Grand
Avenue and Riverside Drive.
APPLICANT:Dana Kuhn, Sunwood Ventures
Recommendation
adopt AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF LAKE ELSINORE,
CALIFORNIA APPROVING A DEVELOPMENT AGREEMENT FOR AN 163 DETACHED
CONDOMINIUM DEVELOPMENT LOCATED ON APPROXIMATELY TWENTY (20) ACRE
PROJECT SITE.
Background
On August 15, 2006, the Planning Commission reviewed and recommended approval of The
Village at Lakeshore Specific Plan and its related applications (Mitigated Negative Declaration
No. 2006-05, Specific Plan No. 2005-01, Zone Change No. 2005-01, Tentative Condominium
Map No. 33267, Conditional Use Permit No. 2005-21, and Residential Design Review No. 2005-
09).
On September 12, 2006, the City Council approved The Village at Lakeshore Specific Plan and
its related applications.
The previously approved The Village at Lakeshore Specific Plan (Specific Plan No. 2005-01) was
an infill residential project on an approximately twenty (20) acre site. The approved project
featured 146 attached single-family condominium residences within thirty-seven (37) separate
detached buildings consisting primarily of four (4) attached units each. A community recreation
facility and recreational vehicle storage area was also identified.
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In 2014, the applicant applied for an amendment to The Village at Lakeshore Specific Plan and a
new residential product. The proposed new residential product modified the previously approved
Residential Design Review No. 2005-09 by changing the condominium type from 146 attached
single-family condominium residences within thirty-seven (37) separate detached buildings
consisting primarily of four (4) attached units each to 163 single-family detached condominium
residences. In addition the proposed modification updated the site plan, architectural design, and
the recreational amenities.
On May 5, 2015, the Planning Commission reviewed and recommended approval of the first
amendment to The Village at Lakeshore Specific Plan and Residential Design Review (RDR) No.
2014-07.
On June 23, 2015, the City Council approved of the first amendment to The Village at Lakeshore
Specific Plan and Residential Design Review (RDR) No. 2014-07.
On September 5, 2017, the Planning Commission reviewed and recommended approval of the
Development Agreement.
Discussion
Project Request
The applicant is requesting the approval of a development agreement to facilitate the
development of a previously approved 163 detached condominium development.
Project Location
The approximately twenty (20) acre project site is located at the northwest corner of Grand
Avenue and Riverside Drive, Assessor Parcel Number(S) 379-050-006, 379-050-034, 387-170-
004, 387-170-006, 387-180-001, 387-080-003/004, and 387-080-004.
Environmental Setting
EXISTING LAND USE GENERAL PLAN ZONING
Project Site Vacant Specific Plan Specific Plan
North Commercial Commercial Park (CP)Future Specific Plan “P”
South Residential County Unincorporated County
East Vacant/Mobile Home Commercial Park (CP)Future Specific Plan “I”
West Apartments/Vacant High Density Res. Future Specific
Project Description
The proposed development agreement would have a seven (7) year term from the Effective Date.
The proposed agreement amongst other items would memorialize the following items:
Vested Rights: The development agreement provides certainty in the development
process by providing a vested right in the existing entitlements and in the applicability of
the City’s existing land use regulations to the development of the Project. During the term
of the agreement, the Project will be exempt from newly adopted City land use regulations
and fees.
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Existing Development Fees: During the term of this agreement, the City shall impose and
Vested Party shall be required to pay only existing development fees in connection with
the development of the Property and the processing of applications for Land Use
Entitlements submitted by Vested Party. This limitation does not apply to impact fees,
exactions, assessments or fair share charges or other similar fees or charges imposed by
other governmental entities regardless of whether the City is required to collect or assess
such fees (e.g., school district impact fees pursuant to Government Code Section 65995).
Development Agreement Fees: Developer shall pay a Development Agreement Fee in the
amount of Five Hundred Dollars ($500) per residential unit.
Analysis
The proposed Development Agreement has been negotiated by the City Attorney and the
applicant’s Legal Counsel. The proposed Development Agreement is an instrumental document
in the facilitation of the development of 163 detached condominiums. The subject project is a
benefit to the City and would encourage future development in the immediate adjacent community
and the City in general. The proposed development agreement has been reviewed for consistency
with respect to the State Government Code and the Lake Elsinore Municipal Code and has been
found to meet all legal requirements.
Environmental Determination
Pursuant to the California Environmental Quality Act (CEQA), the Project received environmental
clearance and analysis in connection with the approval of the Village at Lakeshore Specific Plan
Amendment (SPA) No. 2014-02, Conditional Use Permit (CUP) No. 2005-21, Tentative Tract No.
33627 and Residential Design Review (RDR) No. 2014-07 by an Addendum to a Mitigated
Negative Declaration (MND) (SCH No2006017027) which adequately describes the Project for
the purposes of CEQA. The Development Agreement is consistent with the Lake Elsinore General
Plan, the Village at Lakeshore Specific Plan, the Lake Elsinore Municipal Code and Project
approvals and does not conflict with the findings and discussions contained in the MND.
Exhibits:
A. DA Resolution
B. DA
C. Vicinity Map
D. Aerial Map
ORDINANCE NO. 2017-__
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF LAKE ELSINORE,
CALIFORNIA APPROVING A DEVELOPMENT AGREEMENT FOR AN 163 DETACHED
CONDOMINIUM DEVELOPMENT, LOCATED ON APPROXIMATELY 20 ACRE
PROJECT SITE
Whereas,Sunwood Lakeview, LLC has requested approval of a Development Agreement pursuant
to California Government Code Sections 65864-65869.5 in connection with the development of 163
condominiums on an approximately 20 acre site located at the northwest corner of Grand Avenue
and Riverside Drive; and,
Whereas,pursuant to LEMC Chapter 19.12 (Development Agreements) the Planning Commission
(Commission) of the City of Lake Elsinore (City) has been delegated with the responsibility of
reviewing and making a recommendation to the City Council (Council) whether the Development
Agreement is consistent with the City’s General Plan and whether to approve the Development
Agreement; and,
Whereas,on September 5, 2017, at a duly noticed Public Hearing, the Commission considered
evidence presented by the Community Development Department and other interested parties with
respect to this item and recommended approval of the proposed Development Agreement; and,
Whereas,pursuant to LEMC Chapter 19.12 the Council of the City has the responsibility of making
decisions to approve, modify or disapprove recommendations of the Commission for Development
Agreements; and,
Whereas,on September 12, 2017, at a duly noticed Public Hearing, the Council has considered
evidence presented by the Community Development Department and other interested parties with
respect to this item.
NOW THEREFORE, THE CITY COUNCIL OF THE CITY OF LAKE ELSINORE, DOES HERBY
ORDAIN AS FOLLOWS:
Section 1.On September 12, 2006, the City Council approved and adopted Mitigated Negative
Declaration (MND) No. 2006-05 which analyzed the environmental impacts associated with the
residential development of the subject property, which is now part of Residential Design Review No.
2014-07 and Specific Plan Amendment No. 2014-02.
Section 2.Pursuant to CEQA Guidelines Section 15164, an addendum to MND No. 2006-05 was
prepared to determine if the Project would have any new significant impacts on the environment. The
addendum found no new impacts that exceeded the previously identified impacts that could not be
mitigated through the existing mitigation measures contained in MND No. 2006-05 and updated these
mitigation measures to meet current standards.
Section 3. On May 5, 2015, at a duly noticed Public Hearing, the Commission considered evidence
presented by the Community Development Department and other interested parties with respect to
this item; and adopted Resolution No. 2015-39 recommending that the Council adopt Addendum #1
to the MND No. 2006-05 for Specific Plan 2005-02 Amendment #1 and Residential Design Review
No. 2014-07.
Section 4.On June 23, 2015, at a duly noticed Public meeting, the Council considered the
recommendation of the Commission as well as evidence presented by the Community Development
Ord. No. 2017-______
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Department and other interested parties with respect to this item; and adopted Resolution No. 2015-
58 adopting Addendum No. 1 to MND No. 2006-05 for Specific Plan 2005-02 Amendment No. 1 and
Residential Design Review No. 2014-07.
Section 5.Pursuant to the California Environmental Quality Act (CEQA), the Project received
environmental clearance and analysis in connection with the approval of the Village at Lakeshore
Specific Plan Amendment (SPA) No. 2014-02, Conditional Use Permit (CUP) No. 2005-21, Tentative
Tract No. 33627 and Residential Design Review (RDR) No. 2014-07 by an Addendum to a Mitigated
Negative Declaration (MND) (SCH No2006017027) which adequately describes the Project for the
purposes of CEQA. The Development Agreement is consistent with the Lake Elsinore General Plan,
the Village at Lakeshore Specific Plan, the Lake Elsinore Municipal Code (LEMC) and Project
approvals and does not conflict with the findings and discussions contained in the MND.
Section 6. That in accordance with California Planning and Zoning Law and the LEMC Chapter
19.12, the Council makes the following findings regarding the proposed Development Agreement:
1. It is consistent with the objectives, policies, general land uses and programs specified in the
General Plan and any applicable specific plan;
The proposed Development Agreement will facilitate the development of a residential community.
The proposed development is located in the Specific Plan General Plan Land use designation and is
located within the Lakeview planning district. The Lakeview planning district’s primary goal is to
provide a revitalized and healthy mixed-use corridor along Riverside Drive with connections to the
lake; to ensure adequate public facilities and services to meet the needs of existing and new
development and City-adopted specific plans; and to establish policies that create strong links
between existing and future LAKE VIEW DISTRICT LV-7 residential communities and supporting
commercial, entertainment, or recreational uses. The proposed development agreement would help
facilitate the development of a previously approved specific plan that is consistent with the General
Plan
2. It is compatible with the uses authorized in, and the regulations prescribed for, the land use district
in which the real property is located;
The proposed Development Agreement will facilitate the development of a large sports complex
facility. The Project is located The Villages at Lakeshore Specific Plan Amendment #1 and is located
in the Medium Density Residential land-use designation. The Medium Density Residential land-use
designation specifies the use of condominiums as permitted.
3. It is in conformity with public convenience, general welfare and good land use practices;
The approved Village at Lakeshore development which will be facilitated through the proposed
Development Agreement was found to be a high value development which will have beneficial
impacts to the surrounding community. Furthermore, the approved Addendum 1 to the (MND) No.
2006-05 identified adverse impacts and mitigation to reduce these impacts to levels of less than
significant.
4. It will not be detrimental to the health, safety and general welfare;
The proposed Development Agreement will facilitate the development a residential community. The
previously approved project was found not to be detrimental to the health, safety and general welfare.
Ord. No. 2017-______
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5. It will not adversely affect the orderly development of property or the preservation of property
values;
The proposed Development Agreement will facilitate the development of a residential complex. The
previously approved project was found not to adversely affect the orderly development of property or
the preservation of property values.
6. It is consistent with the provisions of Government Code Sections 65864 through 65869.5.
The proposed Development Agreement includes all mandatory provisions required by Government
Code § 65865.2 and does not include any provisions that are not authorized by the Development
Agreement Act.
Section 7. Based upon the evidence presented, the above findings, the Council approves
Development Agreement 2017-__.
Section 8. Severability.If any provision of this Ordinance or its application is held invalid by a court
of competent jurisdiction, such invalidity shall not affect other provisions, sections, or applications of
the Resolution which can be given effect without the invalid provision or application, and to this end
each phrase, section, sentence, or word is declared to be severable.
Section 9. Effective Date. This Ordinance shall take effect thirty (30) days after the date of its final
passage or such later date as may be designated by the Council. The City Clerk shall certify as to
adoption of this Ordinance and cause this Ordinance to be published and posted in the manner
required by law.
Passed and Adopted on this 12th day of September 2017.
___________________
Robert E. Magee
Mayor
Attest:
___________________________
Susan M. Domen, MMC
City Clerk
STATE OF CALIFORNIA )
COUNTY OF RIVERSIDE ) ss.
CITY OF LAKE ELSINORE )
Ord. No. 2017-______
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I, Susan M. Domen, MMC, City Clerk of the City of Lake Elsinore, do hereby certify that the
foregoing Ordinance No. 2017-_____ was introduced at the Regular meeting of September 12, 2017,
and that the same was approved by the following vote:
AYES:
NOES:
ABSENT:
ABSTAIN:
Susan M. Domen, MMC
City Clerk
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RECORDING REQUESTED BY DRAFT
AND WHEN RECORDED MAIL TO:
City of Lake Elsinore
130 South Main Street
Lake Elsinore, CA 92530
Attn: City Clerk
(Space Above Line For Recorder’s Use Only)
(Exempt from Recording Fees Per Govt Code §27383)
DEVELOPMENT AGREEMENT
BY AND BETWEEN THE
CITY OF LAKE ELSINORE AND SUNWOOD LAKEVIEW, LLC
(THE VILLAGE AT LAKESHORE PROJECT)
TABLE OF CONTENTS
Page
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1.DEFINITIONS...................................................................................................................2
2.PURPOSE AND ANALYSIS............................................................................................5
2.1.Vested Right in Existing Land Use Regulations..................................................5
2.2.Development of the Developer Property..............................................................5
2.3.Uses..........................................................................................................................5
2.4.Intensity. .................................................................................................................5
2.5.Size...........................................................................................................................5
2.6.Tentative Subdivision Map Extensions................................................................6
2.7.Timing of Development.........................................................................................6
2.8.No Significant Environmental Impact.................................................................6
3.RULES, REGULATIONS AND OFFICIAL POLICIES..............................................6
3.1.Effect of Agreement on Land Use Regulations...................................................6
3.2.New Rules. ..............................................................................................................7
3.2.1. Processing Fees and Charges................................................................................7
3.2.2. Procedural Regulations.........................................................................................7
3.2.3. Regulations Governing Construction Standards................................................7
3.2.4. Non-Conflicting Regulations.................................................................................7
3.2.5. Certain Conflicting Regulations...........................................................................7
3.2.6. Regulations Needed to Protect the Health and Safety........................................7
3.2.7. Regulation by Other Public Agencies. .................................................................8
3.3.Subsequent Actions and Approvals......................................................................8
3.4.State and Federal Laws.........................................................................................8
4.FEES, TAXES AND FINANCIAL RESPONSIBILITIES............................................8
4.1.Existing Development Impact Fees......................................................................8
4.2.Affordable Housing In Lieu Fee...........................................................................8
TABLE OF CONTENTS (cont'd)
Page
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4.3.Development Agreement Fees...............................................................................9
4.4.Payment of Development Fees..............................................................................9
4.5.General and Special Taxes....................................................................................9
4.6.Reservations, Dedications, Improvements and Canary Island Date
Palm.......................................................................................................................10
5.DURATION OF AGREEMENT....................................................................................10
5.1.Term......................................................................................................................10
5.2.Annual Review. ....................................................................................................10
5.3.Operating Memoranda........................................................................................10
5.4.Amendment. .........................................................................................................11
6.COVENANT OF FURTHER ASSURANCES AND FAIR DEALING......................11
6.1.Further Assurances..............................................................................................11
6.2.Covenant of Good Faith and Fair Dealing. .......................................................11
7.PERMITTED DELAYS..................................................................................................11
8.ESTOPPEL CERTIFICATES........................................................................................12
9.RECORDATION BY CITY CLERK............................................................................12
10.DEFAULT. .......................................................................................................................12
10.1.Events of Default..................................................................................................12
10.2.Remedies...............................................................................................................12
10.3.No Waiver.............................................................................................................13
10.4.Effect of Termination. .........................................................................................13
11.INCORPORATION BY REFERENCE. .......................................................................13
11.1.Recitals..................................................................................................................13
11.2.Attachments..........................................................................................................13
12.APPLICABLE LAW.......................................................................................................13
13.NO JOINT VENTURE, PARTNERSHIP OR THIRD PARTY BENEFICIARY....13
TABLE OF CONTENTS (cont'd)
Page
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14.COVENANTS RUNNING WITH THE LAND............................................................14
15.TERMS AND CONSTRUCTION..................................................................................14
15.1.Severability...........................................................................................................14
15.2.Entire Agreement.................................................................................................14
15.3.Signature Pages....................................................................................................14
15.4.Time.......................................................................................................................14
15.5.Notices...................................................................................................................14
16.ASSIGNMENT AND NOTICE......................................................................................15
17.ENCUMBRANCES AND RELEASES ON REAL PROPERTY................................16
17.1.Discretion to Encumber.......................................................................................16
17.2.Entitlement to Written Notice of Default...........................................................16
17.3.Property Subject to Pro Rata Claims.................................................................16
18.CONSTRUCTION, NUMBER AND GENDER...........................................................16
19.INSTITUTION OF LEGAL ACTION..........................................................................16
20.INDEMNIFICATION.....................................................................................................17
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DEVELOPMENT AGREEMENT
BY AND BETWEEN THE
CITY OF LAKE ELSINORE AND SUNWOOD LAKEVIEW, LLC
(THE VILLAGE AT LAKESHORE PROJECT)
(Pursuant To Government Code
Sections 65864 -65869.5)
This Development Agreement (“Agreement”) dated for identification purposes only as of
______________, 2017 (“Date of Agreement”) is entered into by and between Sunwood
Lakeview, LLC, a Delaware limited liability company (“Developer”), and the City of Lake
Elsinore, a California municipal corporation (“City”). Developer and City are sometimes
singularly referred to herein as a “Party” and are collectively referred to herein as the “Parties.”
RECITALS
A.To strengthen the public planning process, encourage private participation in
comprehensive planning, and reduce the economic risk of development, the legislature of the
State of California adopted the “Development Agreement Act,” Government Code Sections
65864 through 65869.5. The Development Agreement Act authorizes the City to enter into an
agreement with any person having a legal or equitable interest in real property regarding the
future development of such property.
B.Pursuant to the Development Agreement Act, the City adopted Ordinance No.
996 establishing procedures and requirements for consideration of development agreements as
set forth in Lake Elsinore Municipal Code Chapter 19.12 (the “Development Agreement
Ordinance”).
C.Developer owns approximately 20 acres of real property generally located in the
south west portion of the City of Lake Elsinore, California, at the north west corner of Grand
Avenue and Riverside Drive and more particularly described as Assessor Parcel Numbers 379-
050-006 and 379-050-034 (the “Developer Property”). The parcels of land comprising the
Developer Property are more particularly described in the Legal Description (Attachment “A”)
and depicted in the Vicinity map (Attachment “B”).
D.Tentative Tract Map (TTM) No. 33267 is a single lot condominium tract map and
is part of an entitlement that includes the development of a 163 unit detached single-family
condominium project commonly known as The Village at Lakeshore (the “Project”) to be
developed in accordance with The Village at Lakeshore Specific Plan Amendment (SPA) No.
2014-02, Conditional Use Permit (CUP) No. 2005-21 and Residential Design Review (RDR) No.
2014-07 (collectively, the “Development Approvals”).
E.Developer’s development of the Project and the Developer’s obligations set forth
in this Agreement requires significant financial investment by Developer and in order to bring
certainty and stability to the City’s regulations applicable to the Development of Developer
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Property, the Developer and the City intend to vest the Existing Land Use Regulations and the
development rights under the Development Approvals.
F.On ________, 2017, the City of Lake Elsinore Planning Commission held a duly
noticed public hearing to consider Developer’s application for this Agreement and recommended
to the City Council approval of this Agreement.
G.On ________, 2017, the City Council held a duly noticed public hearing to
consider this Agreement and found and determined that (a) this Agreement is compatible with
the orderly development of the Developer Property and the surrounding area; (b) this Agreement
will have an overall positive effect on the health, safety and welfare of the residents of and
visitors to the City; (c) this Agreement constitutes a lawful, present exercise of the City’s police
power and authority under the Development Agreement Act and Development Agreement
Ordinance; (d) this Agreement is entered into pursuant to and in compliance with the
requirements of the Development Agreement Act and the Development Agreement Ordinance;
and did therefore, in approving this Agreement introduce for first reading Ordinance No. 2017-
___ (the “Enabling Ordinance”). On _____________, 2017 the City Council conducted the
second reading of the Enabling Ordinance thereby approving this Agreement, to become
effective thirty (30) days thereafter which date is ________, 2017, (the “Effective Date”).
The foregoing true and correct Recitals constitute a substantive part of this Agreement,
and the Parties have materially relied upon them as such in their respective determinations to
execute this Agreement.
NOW, THEREFORE, in consideration of the mutual terms, obligations, promises,
covenants and conditions contained herein and for other valuable consideration, the sufficiency
of which is hereby acknowledged, the Parties, and each of them, agree as follows:
AGREEMENT
1.DEFINITIONS.
All initially-capitalized words, terms, and phrases used, but not otherwise defined,
in the Recitals shall have the meanings assigned to them in Section 1 of this Agreement, unless
the context clearly indicates otherwise.
1.1.“Agreement” means this Development Agreement.
1.2.“Affordable Housing In Lieu Fee” is defined in Section 4.2 of this
Agreement.
1.3.“Applicable Rules” means this Agreement, the Development Approvals,
the Existing Land Use Regulations, the Development Agreement Act, and the Development
Agreement Ordinance.
1.4.“Building Codes” shall mean such California standard, uniform, codes
governing construction, including without limitation, the Building Code, Housing Code, Energy
Code, Green Building Code, Plumbing Code, Electrical Code, Mechanical Code, and Fire Code
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(including amendments thereto by the Riverside Fire Authority), as modified and amended by
official action of the City as set forth in Title 15 of the Lake Elsinore Municipal Code as may be
amended from time to time.
1.5.“Business Day” means Monday through Friday, excepting holidays.
1.6.“CEQA” means the California Environmental Quality Act, Public
Resources Code Section 21000, et seq.and the implementing regulations promulgated
thereunder as the “CEQA Guidelines” (Title 14, California Code of Regulations Section 15000 et
seq.) and the City's local guidelines.
1.7.“City” means the City of Lake Elsinore, a municipal corporation.
1.8.“City Council” means the duly elected City Council of the City.
1.9.“City Manager” means the City Manager of the City and his or her
authorized designees.
1.10.“Dedication” shall mean Developer’s grant of real property or an interest
therein to the City or another governmental, public agency or non-profit entity for a public
purpose.
1.11.“Developer” means Sunwood Lakeview, LLC, a limited liability company
and its successors in interest to all or any part of the Developer Property.
1.12.“Developer Property” means the real property which is the subject of this
Agreement and which is described in Recital C, and more particularly described in Attachment
“A” attached hereto and incorporated by this reference.
1.13.“Development” means the construction and/or installation of structures,
improvements and facilities on the Developer Property as set forth in this Agreement including,
without limitation, grading, the construction of infrastructure and public facilities (whether
located within or outside the Developer Property), the construction of buildings and the
installation of landscaping.
1.14.“Development Agreement Act” is defined in Recital A of this Agreement.
1.15.“Development Agreement Fee” is defined in Section 4.3.
1.16.“Development Agreement Ordinance” is defined in Recital B of this
Agreement.
1.17.“Development Approvals” means Tentative Tract Map (TTM) No. 33267,
The Village at Lakeshore Specific Plan Amendment (SPA) No. 2014-02, Conditional Use Permit
(CUP) No. 2005-21 and Residential Design Review (RDR) No. 2014-07 as set forth in Recital D
of this Agreement.
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1.18.“Development Fees” means Development Impact Fees, Affordable
Housing In Lieu Fees and Development Agreement Fees as set forth in Attachment C.
1.19.“Development Impact Fees” means local or regional impact fees, linkage
fees, or exactions, collected as a condition to issuance of grading and/or building permit, or
otherwise, imposed by the City on and in connection with Development. Development Impact
Fees do not include (a) Processing Fees and Charges; (b) impact fees, linkage fees, exactions,
assessments or fair share charges or other similar fees or charges imposed by other governmental
entities regardless of whether the City is required to collect or assess such fees pursuant to
applicable Laws (e.g., school district impact fees pursuant to Government Code Section 65995),
or (c) general or special taxes and assessments.
1.20.“Effective Date” means the date this Agreement and the Enabling
Ordinance approving this Agreement become effective as defined in Recital G.
1.21.“Enabling Ordinance” is defined in Recital G.
1.22.“Existing Land Use Regulations” means the City General Plan,
Development Approvals and the City’s rules, regulations, ordinances, resolutions, and official
policies applicable to the Development and occupancy of the Developer Property which are in
effect on the Effective Date, subject to the exceptions set forth in Section 3.2 et seq. Existing
Land Use Regulations includes Development Impact Fees subject to the provisions and
exceptions set forth in Sections 4.1 – 4.4.
1.23.“Government Code” means the California Government Code.
1.24.“LEMC” means the Lake Elsinore Municipal Code.
1.25.“Parties” mean Developer and the City.
1.26.“Processing Fees and Charges” means all processing fees and charges
required by the City in connection with new construction, including, but not limited to,
Subsequent Approvals application fees, plan-check and inspection fees, fees for monitoring
compliance with any Development Approval or for monitoring compliance with environmental
impact mitigation measures.
1.27.“Project” means the Development of the proposed 163 unit detached
residential condominium project on the Developer Property pursuant to the Development
Approvals.
1.28.“Subsequent Approvals” shall mean all future land use and development
entitlements, permits and plans that do not yet exist and are necessary for Development of the
Developer Property, including building permits, grading permits, encroachment permits,
landscape and signage plans, and other similar permits subject to and including all conditions of
approval and any mitigation measures identified and adopted pursuant to the Existing Land Use
Regulations and applicable CEQA review, if any, in accordance with the terms of this
Agreement.
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1.29.“Term” is defined in Section 5.1.
2.PURPOSE AND ANALYSIS.
2.1.Vested Right in Existing Land Use Regulations.
The City has determined that the proposed Project is consistent with the
goals and objectives of the City’s land use and housing policies by providing a mix of 3-bedroom
and 4-bedroom quality residential housing opportunities to meet the needs of families in the
community in accordance with the Existing Land Use Regulations and eliminating uncertainty in
the planning, entitlement and Development processes.
In exchange for the Project benefits the Developer wishes to receive the
assurances permitted by the Development Agreement Act and the Development Agreement
Ordinance such that the Developer will be deemed to have a vested interest in the applicability of
the Existing Land Use Regulations to the Development and implementation of the Project and
each portion thereof. As such, the Developer, if it chooses, may proceed to develop the Property
in accordance with the Existing Land Use Regulations, with certainty that Developer will have
the ability to expeditiously and economically complete the Project.
2.2.Development of the Developer Property.
The Parties agree and acknowledge that this Agreement itself does not
authorize Developer to undertake any Development of the Property and that before any
Development activity can occur, the Developer shall have satisfied the conditions of the
Development Approvals and obtained any necessary Subsequent Approvals pursuant to the
Applicable Rules. The City shall have the right to control Development in accordance with the
terms and conditions of the Applicable Rules.
2.3.Uses.
The Developer Property may be used in accordance with the Development
Approvals, all Subsequent Approvals, and the Existing Land Use Regulations.
2.4.Intensity.
Permitted density and intensity of use vested hereby shall be the maximum
permitted by the Development Approvals, all Subsequent Approvals, and the Existing Land Use
Regulations.
2.5.Size.
The maximum height and size of buildings vested hereby shall be as set
forth in the Development Approvals, all Subsequent Approvals, and the Existing Land Use
Regulations.
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2.6.Tentative Subdivision Map Extensions.
In accordance with Government Code §66452.6(a)(1), TTM No. 33267
shall be granted an extension of time for the greater of the term of this Agreement (in which case
no such extension application to extend the expiration date of the tentative map need be filed) or
such time approved in accordance with State law or the Existing Land Use Regulations.
2.7.Timing of Development.
There is always uncertainty in forecasting future market conditions.
Consequently, phasing of development of the Project is difficult to predict or regulate. In order
to avoid the result in Pardee Construction Co. v. City of Camarillo, 37 Cal.3d 465 (1984), the
City and Developer agree that Developer shall have the right, without obligation, to develop the
Project in such order and at such rate and times as Developer deems appropriate within the
exercise of its subjective business judgment, subject only to the Development Approvals.
Furthermore, the City shall not (whether by City Council action, initiative or otherwise) limit the
rate or timing of Development of the Developer Property except as expressly authorized by the
Development Approvals. Nothing in this section shall be construed to limit the City’s right to
require that Developer timely provide all Required Roadway Improvements and Exactions in
accordance with the Development Approvals.
2.8.No Significant Environmental Impact.
All potentially significant impacts of the Project have been avoided or mitigated
pursuant to the Mitigated Negative Declaration (MND) No. 2006-05 (State Clearinghouse No.
200671027) adopted by the City Council on September 12, 2006 and Addendum #1 to MND
2006-05 approved by the City Council on June 23, 2015. There are no substantial changes to the
Developer Property or the circumstances under which the Developer Property is to be regulated
and developed under this Agreement when viewed against the Existing Land Use Regulations,
including the Development Approvals, and there is no new information of substantial importance
which would require preparation of another CEQA document pursuant to CEQA Guidelines
Section 15162. The vesting of the Existing Land Use Regulations, including the General Plan
and Development Approvals through this Agreement is exempt from the requirements of CEQA
pursuant to CEQA Guidelines Section 15061(b)(3) because there is no possibility that this
Agreement will have any significant direct, indirect, or cumulative environmental impacts apart
from or beyond those already analyzed, addressed, and mitigated as stated in the environmental
documentation prepared and adopted/approved for the Development Approvals pursuant to
CEQA.
3.RULES, REGULATIONS AND OFFICIAL POLICIES.
3.1.Effect of Agreement on Land Use Regulations.
In connection with any Subsequent Approval with respect to the
Developer Property, 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 Land Use
Regulations and this Section 3 et seq.In addition, the City shall use its reasonable, good faith
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efforts to make its staff available so as to expeditiously complete processing of all Subsequent
Approvals for the Development.
3.2.New Rules.
Although the Existing Land Use Regulations will govern uses and
Development of the Developer Property, this Agreement will not prevent and shall not be
construed to limit the authority of City to apply new rules, regulations and policies set forth in
this Section 3.2 et seq. on the Developer in connection with the Development of the Developer
Property.
3.2.1. Processing Fees and Charges.
Processing Fees and Charges as defined in Section 1.26 shall be
paid by Developer at the prevalent rate at the time of payment.
3.2.2. Procedural Regulations.
Procedural regulations relating to hearing bodies, petitions,
applications, notices, findings, records, hearings, reports, recommendations, appeals and any
other matter of procedure.
3.2.3. Regulations Governing Construction Standards.
Regulations governing construction standards and specifications
including without limitation, the Building Codes as defined in Section 1.4.
3.2.4. Non-Conflicting Regulations.
Written regulations approved by the City that are not in material
conflict with the Applicable Rules and do not materially and adversely impact the Development
of the Developer Property.
3.2.5. Certain Conflicting Regulations.
Written regulations approved by the City that are in material
conflict with the Applicable Rules if Developer has given its written consent to the application of
such regulations to Development of the Developer Property.
3.2.6. Regulations Needed to Protect the Health and Safety.
Any City ordinance, resolution, regulation, or official policy which
is reasonably necessary to protect persons from conditions dangerous to their health and/or
safety; provided that any such regulations must constitute a valid exercise of the City’s police
power, applied and enforced in a uniform, consistent and nondiscriminatory manner.
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3.2.7. Regulation by Other Public Agencies.
The Parties acknowledge that other public agencies, not within the
control of the City, possess authority to regulate aspects of the Development of the Project and
the Developer Property separately from the City. This Agreement does not limit the authority of
such other public agencies.
3.3.Subsequent Actions and Approvals.
The City shall accept and process with reasonable promptness all
completed applications for any Subsequent Approval in accordance with the Existing Land Use
Regulations; provided, however, this Agreement will not prevent the City, in subsequent actions
applicable to the Developer Property, from applying new rules, regulations and policies which do
not conflict with the Existing Land Use Regulations, nor will this Agreement prevent the City
from denying or conditionally approving any Subsequent Approval on the basis of such Existing
Land Use Regulations or such new rules, regulations or policies. Subsequent Approvals shall,
upon approval and as may be amended from time to time, become part of the Applicable Rules
and the Developer shall have a “vested right,” as that term is defined under California law, in and
to such Subsequent Approvals by virtue of this Agreement
3.4.State and Federal Laws.
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 to the extent such laws or regulations do not render such remaining provisions
impractical to enforce.
4.FEES, TAXES AND FINANCIAL RESPONSIBILITIES.
4.1.Existing Development Impact Fees.
During the Term of this Agreement, City shall impose and Developer shall
be required to pay only the Development Impact Fees, Affordable Housing In Lieu Fees and
DAG Fees (collectively “Development Fees”) at the rates existing as of the Effective Date as set
forth in Attachment “C” in connection with the use or Development of the Property.
4.2.Affordable Housing In Lieu Fee.
Pursuant to Conditions of Approval for the Development Approvals,
Developer shall pay “Affordable Housing In Lieu Fee” at the rate of $2.00 per square foot of
assessable space for each dwelling unit in the Project. For purposes of this condition,
“assessable space” means all of the square footage within the perimeter of a residential structure,
not including any carport, walkway, garage, overhang, patio, enclosed patio, detached assessory
structure, or similar area. The amount of the square footage within the perimeter of a residential
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structure shall be calculated by the building department of the City in accordance with the
standard practice of the City in calculating structural perimeters.
4.3.Development Agreement Fees.
Upon the City’s issuance of the initial building permit for each residential
dwelling unit to be constructed within the Project, Developer shall pay to City a Development
Agreement Fee in the amount of Five Hundred Dollars ($500) (each, a “DAG Fee” and
collectively, “DAG Fees”).
4.4.Payment of Development Fees.
Except as provided hereinbelow, Developer agrees to pay Development
Fees in four lump sum installments as follows:
(1) Upon issuance of the first (1
st) building permit, Developer shall pay all
applicable Development Fees for the first forty-three (43) residential
units in the Project.
(2) Upon issuance of the forty-fourth (44
th) building permit, Developer
shall pay all applicable Development Fees for the next thirty (30)
residential units in the Project (i.e. 44th – 73
rd residential units).
(3) Upon issuance of the seventy-fourth (74
th) building permit, Developer
shall pay all applicable Development Fees for the next thirty (30)
residential units in the Project (i.e. 73rd – 103
rd residential units).
(4) Upon issuance of the one hundred fourth (104
th) building permit,
Developer shall pay all applicable Development Fees for the
remaining residential units in the Project (i.e. 104th – 134
th residential
units).
(5) Upon issuance of the on hundred thirty-fourth (134
th) building permit
Developer shall pay all applicable Development Fees for the
remaining residential units in the Project (i.e. 134th – 163
rd residential
units).
Notwithstanding the foregoing, Developer shall pay, at the rate then in
effect, (i) applicable Drainage Fees prior to approval of Final TTM No. 33267 and (ii) Quimby
Fees prior to issuance of each building permit in accordance with the Lake Elsinore Municipal
Code and applicable Resolutions.
4.5.General and Special Taxes.
Developer shall pay general or special taxes, including but not limited to,
property taxes, sales taxes, transient occupancy taxes, business taxes, which may be applied to
the Developer Property or to businesses occupying the Developer Property; provided, however,
that the tax is of general applicability Citywide and does not burden the Developer Property
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disproportionately when compared to the development of other residential uses within the City.
Nothing in this Agreement prohibits the adoption and application of a CFD special tax requested
by the Developer and approved by the City Council in accordance with applicable laws.
4.6.Reservations, Dedications, Improvements and Canary Island Date Palm.
Developer shall timely complete at Developer’s cost and expense all
reservations, dedications and the provision of improvements and facilities for public purposes in
accordance with the requirements of the conditions of approval for the Development Approvals.
In addition, Developer shall donate to the City the Canary Island Date Palm located on the
Developer Property; provided, however, the City shall be responsible for all costs of removal and
relocation.
5.DURATION OF AGREEMENT.
5.1.Term.
The Term of this Agreement shall commence as of the Effective Date and
shall automatically expire on the seventh (7
th) anniversary thereof.
5.2.Annual Review.
City shall review this Agreement annually (“Annual Review”) on or
before the anniversary of the Effective Date. During each Annual Review, Developer is required
to demonstrate good faith compliance with the terms of this Agreement, and shall furnish such
reasonable evidence of good faith compliance as the City, in the exercise of its reasonable
discretion, may require. Such Annual Review shall be conducted administratively by the City
Manager and any appropriate department heads designated by the City Manager to perform such
Annual Review. The City Manager shall report the results of such Annual Review to the City
Council within thirty (30) days after the conclusion thereof. No public hearing shall be held by
the City Manager or City Council with regard to such Annual Review; provided, however, that
the City Council and/or the Developer shall have the right to appeal the City Manager’s findings
to the City Council, in which case Developer shall have the right to request a public hearing on
the matter. City shall notify Developer in writing of the date for review at least thirty (30) days
prior thereto. 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.
The requirement for an Annual Review shall not be deemed to modify or restrict Developer’s
rights under Section 2.7 to develop the Project in such order and at such rate and times as
Developer deems appropriate in view of market conditions and within the exercise of its
subjective business judgment, subject only to the Development Approvals.
5.3.Operating Memoranda.
The provisions of this Agreement require a close degree of cooperation
between the City and the Developer. The Development of the Developer Property may
demonstrate that clarifications to this Agreement and the Existing Land Use Regulations are
appropriate with respect to the details of performance of the City and the Developer. To the
extent allowable by law, the Developer shall retain a certain degree of flexibility as provided
herein with respect to all matters, items and provisions covered in general under this Agreement,
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except for those which relate to the (i) term; (ii) permitted uses; or (iii) density or intensity of
use. When and if the Developer finds it necessary or appropriate to make changes, adjustments
or clarifications to matters, items or provisions not enumerated in (i) through (iii) above, the
Parties shall effectuate such changes, adjustments or clarifications through operating memoranda
(the “Operating Memoranda”) approved by the Parties in writing which reference this Section
5.3. Operating Memoranda are not intended to constitute an amendment to this Agreement but
mere ministerial clarifications; therefore public notices and hearings shall not be required. The
City Manager shall be authorized, upon consultation with, and approval of, the Developer, to
determine whether a requested clarification may be effectuated pursuant to this Section or
whether the requested clarification is of such character to constitute an amendment to this
Agreement which requires compliance with the provisions of Section 5.4 below.
5.4.Amendment.
Subject to the notice and hearing requirements of the Government Code,
this Agreement may be modified or amended from time to time only with the written consent of
the Developer and the City or their successors and assigns in accordance with the provisions of
the Development Agreement Ordinance and the Development Agreement Act.
6.COVENANT OF FURTHER ASSURANCES AND FAIR DEALING.
6.1.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 necessary or proper to achieve the purposes and
objectives of this Agreement. Each Party will take all necessary measures to see that the
provisions of this Agreement are carried out in full.
6.2.Covenant of Good Faith and Fair Dealing.
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 Party to receive the benefits of
this Agreement and each Party will refrain from 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.
7.PERMITTED DELAYS.
Any period of delay caused by acts of God; civil commotion; war; insurrection;
riots; strikes; walk outs; 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 performance of the Agreement; moratoria; judicial decisions;
or any other cause which is not within the reasonable control of the Parties may extend the
duration of the Agreement. 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. Any claim for delay must be
presented within thirty (30) days of knowledge of the cause of such delay or any entitlement to
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time extension will be deemed waived. Notwithstanding the foregoing, in no event shall
Developer be entitled to a permitted delay due to an inability to obtain financing or proceed with
development as a result of general market conditions, interest rates, or other similar
circumstances that make development impossible, commercially impracticable, or infeasible.
8.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; (c) no default in the performance of the requesting Party’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.
9.RECORDATION BY CITY CLERK.
Pursuant to Government Code § 65868.5, the City Clerk will record a copy of the
Agreement in the Records of the County Recorder.
10.DEFAULT.
10.1.Events of Default.
Subject to any written extension of time by mutual consent of the Parties
or permitted delays pursuant to the provisions of Section 7, the uncured failure of either Party to
perform any material term or provision of this Agreement will constitute a default. On written
notice to a Party of its failure of performance, such Party will have 30 days to cure such failure
of performance; 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 cure within such period. Any notice of default given hereunder will be in
writing and 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.
10.2.Remedies.
Upon the occurrence of a default under this Agreement and the expiration
of any applicable cure period, the non-defaulting Party will have such rights and remedies
against the defaulting Party as it may have at law or in equity including, without limitation, the
right to terminate this Agreement.
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10.3.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.
10.4.Effect of Termination.
Termination of this Agreement by one Party due to the default of the other
Party in accordance with the provisions of Section 10 et seq.will not affect any right or duty
emanating from any then existing Development Approval and the conditions of approval related
thereto with respect to the Developer Property, but the rights and obligations of the Parties will
otherwise cease as of the date of such termination. If the City terminates this Agreement because
of a default of the Developer, then the City will retain any and all benefits including, without
limitation, money or land received by the City hereunder. Notwithstanding the foregoing, the
obligations of Developer indemnify the City as set forth in Section 20 shall survive any
termination of this Agreement.
11.INCORPORATION BY REFERENCE.
11.1.Recitals.
The Parties agree that the foregoing Recitals are true and correct and that
the foregoing Recitals are a part of this Agreement and are hereby incorporated by reference
herein as though set forth in full.
11.2.Attachments.
Each Attachment to this Agreement is incorporated herein by reference as
though fully set forth herein.
12.APPLICABLE LAW.
This Agreement will be construed and enforced in accordance with the laws of the
State of California.
13.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.
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14.COVENANTS RUNNING WITH THE LAND.
All of the terms, provisions, covenants and obligations contained in this
Agreement will be binding upon the Parties and their respective successors and assigns, and all
other persons or entities acquiring all or any part of the Developer Property, and will inure to the
benefit of such Parties and their respective successors and assigns. All the provisions of this
Agreement will be enforceable as equitable servitudes and constitute covenants running with the
land pursuant to applicable law including, without limitation, California Civil Code § 1468.
Each covenant to or refrain from doing some act on the Developer Property is expressly for the
benefit of the Developer Property and is a burden upon the Developer Property, runs with the
Developer Property and is binding upon each Party and each successive owner during its
ownership of the Developer Property or any part thereof, and will benefit each Party and its
property hereunder, and each Party succeeding to an interest in the Developer Property.
15.TERMS AND CONSTRUCTION.
15.1.Severability.
If any term, provision, covenant or condition of this Agreement is
determined to be invalid, void or unenforceable by judgment or court order, than 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.
15.2.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, oral or written, are superseded in total by this
Agreement.
15.3.Signature Pages.
For convenience, the signatures of the Parties may be placed and
acknowledged on separate pages and, when attached to this Agreement, will constitute this
document as one complete Agreement.
15.4.Time.
Time is of the essence of this Agreement and of each and every term and
condition hereof.
15.5.Notices.
Any notice shall be in writing and given by delivering the same in person
or by sending the same by registered, or certified mail, return receipt requested, with postage
prepaid, by overnight delivery, or by facsimile to the respective mailing addresses, as follows:
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If to City:City of Lake Elsinore
130 S. Main Street
Lake Elsinore, CA 92530
Attn: City Manager
Facsimile: (909) 674-2392
With a copy to:Leibold McClendon & Mann, PC
9841 Irvine Center Drive, Suite 230
Irvine, CA 92618
Attn: Barbara Leibold, Esq.
Facsimile: (949) 585-6305
If to Developer: Sunwood Lakeview, LLC
c/o Sunwood & Associates, LLC
10035 Carroll Canyon Rd., Suite A
San Diego, CA 92131
Attn: Don Knox
Facsimile: (619) 573-1809
With a copy to:
Either City or Developer may change its mailing address at any time by giving written notice of
such change to the other in the manner provided herein at least ten (10) days prior to the date
such change is effected. All notices under this Agreement shall be deemed given, received,
made or communicated on the earlier of the date personal delivery is effected or on the delivery
date or attempted delivery date shown on the return receipt, air bill or facsimile.
16.ASSIGNMENT AND NOTICE.
The rights and obligations of Developer hereunder shall not be assigned or
transferred, except that on thirty (30) days written notice to City, Developer, may assign all or a
portion of Developer’s rights and obligations thereunder to any person or persons, partnership or
corporation who purchases all or a portion of Developer’s right, title and interest in the
Developer Property, provided such assignee or grantee assumes in writing each and every
obligation of Developer hereunder yet to be performed, and further provided that Developer
obtains the consent of City to the assignment, which consent shall not be unreasonably withheld.
Provided the Developer’s thirty (30) day notice includes the assumption by the assignee or
grantee, the consent of the City shall be deemed to occur upon the thirtieth (30th) day of the
notice period unless within that period the City provides written notice withholding consent and
explaining the reasons it is withholding consent. The notice to City shall include the identity of
any such assignee and a copy of the written assumption of the assignor’s obligations hereunder
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pertaining to the portion assigned or transferred. After such notice and the receipt of such
consent, the assignor shall have no further obligations or liabilities hereunder.
17.ENCUMBRANCES AND RELEASES ON REAL PROPERTY.
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 Developer
Property, or any part of the same including, without limitation, improvement thereon, by any
mortgage, deed of trust or other security device securing financing with respect to the Developer
Property or the Project. The City further agrees that it will not unreasonably withhold its consent
to any modification requested by a lender so long as the modification does not materially alter
this Agreement to the detriment of the City.
17.2.Entitlement to Written Notice of Default.
Any lender of the Developer which has filed a written request with the
City for notice of default by Developer will be entitled to receive written notification from the
City of any uncured default by the Developer in the performance of the obligations of the
Developer under this Agreement.
17.3.Property Subject to Pro Rata Claims.
Any mortgagee or beneficiary which comes into possession of the
Developer Property or any part thereof, pursuant to foreclosure of the mortgage or deed of trust,
or deed in lieu of such foreclosure, will take the Developer Property or part thereof, subject to (i)
any pro rata claims for payments or charges against the Developer Property or part thereof
secured by such mortgage or deed of trust, which accrued prior to the time that such mortgagee
or beneficiary comes into possession of the Developer Property or part thereof; and (ii) the terms
and conditions of this Agreement.
18.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 masculine gender will include the feminine and neuter genders.
In addition, “will” is the mandatory and “may” is the permissive.
19.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 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
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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 Parties is an appropriate and available
remedy, in addition to any and all other remedies which may be available to the Parties under
law or at equity.
20.INDEMNIFICATION.
The Developer shall defend (with counsel acceptable to the City), indemnify, and
hold harmless the City, its officers, agents, employees, consultants, officials, commissions,
councils, committees, boards and representatives (collectively referred to individually and
collectively as "Indemnities") harmless from liability for damage or claims for damage for
personal injury, including death and claims for property damage which may arise out of the
direct or indirect activities of the Developer with respect to the Development of the Developer
Property. Developer agrees to and will defend the Indemnities from any claim, action, or
proceeding to attack, set aside, void, or annul an approval by Indemnitees concerning approval,
implementation and construction of this Agreement or the Development Approvals in connection
with the Development of the Developer Property or any of the proceedings, acts or
determinations taken, done, or made prior to the decision, or to determine the reasonableness,
legality or validity of any condition attached thereto. The Developer's indemnification is
intended to include, but not be limited to, damages, fees and/or costs awarded against or incurred
by Indemnities and costs of suit, claim or litigation, including without limitation attorneys' fees,
penalties and other costs, liabilities and expenses incurred by Indemnities in connection with
such proceeding. City shall promptly notify Developer of any such claim, action or proceeding,
and City shall cooperate in the defense. Developer’s obligation to indemnify City hereunder
shall survive any termination of this Agreement.
[Signature Page Follows]
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IN WITNESS WHEREOF, City and Developer have executed this Agreement as of the
date first hereinabove written.
“CITY”
CITY OF LAKE ELSINORE,
a municipal corporation
By:
Robert E. Magee, Mayor
ATTEST:
By:
Susan M. Domen, MMC, City Clerk
APPROVED AS TO FORM:
By:
Barbara Leibold, City Attorney
“DEVELOPER”
SUNLAND LAKEVIEW, LLC, a Delaware
limited liability company
By:Sunwood & Associates, LLC a Delaware
Limited Liability Company, its Manager
By:
Name:
Title:
By:
Name:
Title:
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STATE OF CALIFORNIA )
) §
County of )
On , before me, a
Notary Public, personally appeared who 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 instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the
foregoing paragraph is true and correct
WITNESS my hand and official seal.
________________________________
Signature of Notary
(Affix seal here)
A notary public or other officer completing this
certificate verifies only the identity of the individual
who signed the document to which this certificate is
attached, and not the truthfulness, accuracy, or
validity of that document.
@BCL@7C1457D5.doc
STATE OF CALIFORNIA )
) §
County of )
On , before me, a
Notary Public, personally appeared who 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 instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the
foregoing paragraph is true and correct
WITNESS my hand and official seal.
________________________________
Signature of Notary
(Affix seal here)
A notary public or other officer completing this
certificate verifies only the identity of the individual
who signed the document to which this certificate is
attached, and not the truthfulness, accuracy, or
validity of that document.
@BCL@7C1457D5.doc
STATE OF CALIFORNIA )
) §
County of )
On , before me, a
Notary Public, personally appeared who 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 instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the
foregoing paragraph is true and correct
WITNESS my hand and official seal.
________________________________
Signature of Notary
(Affix seal here)
A notary public or other officer completing this
certificate verifies only the identity of the individual
who signed the document to which this certificate is
attached, and not the truthfulness, accuracy, or
validity of that document.
@BCL@7C1457D5.doc
STATE OF CALIFORNIA )
) §
County of )
On , before me, a
Notary Public, personally appeared who 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 instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the
foregoing paragraph is true and correct
WITNESS my hand and official seal.
________________________________
Signature of Notary
(Affix seal here)
A notary public or other officer completing this
certificate verifies only the identity of the individual
who signed the document to which this certificate is
attached, and not the truthfulness, accuracy, or
validity of that document.
@BCL@7C1457D5.doc
Attachment A
ATTACHMENT “A”
LEGAL DESCRIPTION OF THE DEVELOPER PROPERTY
[TO BE INSERTED]
@BCL@7C1457D5.doc
Attachment B
ATTACHMENT “B”
VICINITY MAP
@BCL@7C1457D5.doc
Attachment C
ATTACHMENT “C”
DEVELOPMENT FEES
VESTED DEVELOPMENT IMPACT FEES AMOUNT AS OF EFFECTIVE
DATE1
Traffic Impact Fees $1,369.00
Library $150.00
City Hall & Public Works Facilities $809.00
Community Center $545.00
Marina Facilities $779.00
Animal Shelter $348.00
Fire Facility $751.00
SUBTOTAL DEVELOPMENT IMPACT FEES $4,751.00
DAG FEES
AFFORDABLE HOUSING IN LIEU FEE
$500.00
$2.00/assessable sq. ft.
NON-VESTED FEES AMOUNT AS OF EFFECTIVE
DATE2
Quimby Fees $1,600.00
Storm Drain TBD
MSHCP $1,250 MF (8-14 du/acre)
TUMF $6,231 MF (> 8 du/acre)
1 Fixed throughout the Term.
2 Throughout the Term, Developer shall pay these fees at prevalent rate as of the date building permits are issued.
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KEEL DRVICINITY MAPSPECIFIC PLAN NO. 2014-02 &RESIDENTIAL DESIGN REVIEW 2014-07
PROJECT SITE
Attachment 1
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NMACHADO STMACY STKEEL DRSource: Esri, DigitalGlobe, GeoEye, i-cubed, Earthstar Geographics,CNES/Airbus DS, USDA, USGS, AEX, Getmapping, Aerogrid, IGN,IGP, swisstopo, and the GIS User Community
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NMACHADO STMACY STKEEL DRSource: Esri, DigitalGlobe, GeoEye, i-cubed, Earthstar Geographics,CNES/Airbus DS, USDA, USGS, AEX, Getmapping, Aerogrid, IGN,IGP, swisstopo, and the GIS User Community
AERIAL MAPSPECIFIC PLAN 2014-02 &RESIDENTIAL DESIGN REVIEW 2014-07
PROJECT SITE
Attachment 2