HomeMy WebLinkAboutMurdock Alberhill Ranch - Development Agreementa e
RECORDING REQUESTED BY AND
WHEN RECORDED MAIL TO:
Murdock Alberhill Ranch
Limited Partnership
10900 Wilshire Boulevard
Suite 1600
Los Angeles, California 90024
Attn: Ms. Ilene Miles
DEVELOPMENT AGREEMENT
BETWEEN
THE CITY OF LAKE ELSINORE
AND
MURDOCK ALBERHILL RANCH LIMITED PA
FOR
MURDOCK {ALBERHILL RANCH
DATED: J . n.. c S J 1993
TABLE OF CONTENTS
1. PARTIES AND DATE . . . . . . . . . . . . . . . . 1
2. DEFINITIONS . . . . . . . . . . . . . . . . . . . 1
3. RECITALS . . . . . . . . . . . . . . . . . . 3
3.1 Property . . . . . . . . . . . . . . . . 3
3.2 Legal Authority . . . . . . . . . . 3
3.2.1 Approval of Development Agreement . . 3
3.3 Consistency Finding . . . . . . . . . . . . 3
3.4 Status of Project . . . . . . . . . . . . . 3
3.5 Consideration . . . . . . . . . . . . . . . 4
4. DEVELOPER PROVIDED AMENITIES . . . . . . . . . . 4
4.1 Description of Amenities . . . . . . . . . . 4
4.1.1 Development Agreement Fee . . . . . . 4
4.1.2 Feasibility Studies . . . . . . . . . 5
4.1.3 School Site . . . . . . . . . . . . . 5
4.1.4 Park Sites . . . . . . . . . . . 5
a) Community Park . . . . . . . . . 5
b) Neighborhood Park . . . . . . . . 6
c) Private Recreational
Facilities . . . . . . . . . . . 6
4.1.5 Affordable Housing . . . . . . . . 6
4.1.6 Municipal PoolP. 6
4.1.7 Supplemental Development AgreementP. 6
5. DURATION OF AGREEMENT . . . . . . . . . . . . . . 7
5.1 Term . . . . . . . . . . . . . . 7
5.2 Scheduling . . . . . . . . . . . . . . . 7
5.3 Certification of Completion . . . . . . . . 7
5.4 Termination . . . . . . . . . . . . . . . . 7
5.5 Periodic Review . . . . . . . . . . . . . . 7
6. VESTED RIGHT . . . . . . . . . . . . . . . . . . 9
6.1 Vesting . . . . . . . . . . . . 9
6.1.1 No Conflicting Enactments . . . . . . 9
6.1.2 Intent of Parties . . . . . . . . . . 9
6.1.3 Grading . . . . . . . . . . . . . 10
6.2 Benefit of an Earlier Vesting . . . . . . . 10
7. GENERAL DEVELOPMENT OF THE PROJECT . . . . . . . 10
7.1 Project . . . . . . . . . . . . 10
7.2 Phasing of Developments . . . . . . . . . . 10
7.3 Reservations or Dedications . . . . . 11
7.4 Operating Memoranda and Amendments . . . . . 11
7.4.1 Alteration of Permitted Uses . . . . 11
7.4.2 Increase in Density or Intensity . . 11
7.4.3 Increase in Height and Size . . . . . 12
7.4.4 Deletion of Reservation
Requirements 12
7.4.5 Supplemental Environmental Impact
Reports . . . . . . . . . . . . . . . 12
8. RULES, REGULATIONS AND OFFICIAL POLICIES . . 12
8.1 Effect of Agreement on Land Use Regulations 12
8.2 New Rules . . . . 12
8.2.1 Processing Fees . . . . . . . . . 12
8.2.2 Procedural Regulations 12
8.2.3 Regulations Governing Construction
Standards . . . . . 13
8.2.4 Certain Conflicting Regulations . . . 13
8.2.5 Non - Conflicting Regulations . . . . . 13
8.3 Police Power and Taxing Power . . . . . . . 13
8.4 Life of Subdivision or Parcel Maps . . . . . 13
8.5 State and Federal Laws . . . . . . . . . . . 13
8.6 Unforeseen Circumstances . . . . . . . . . . 14
i)
9. COOPERATION AND COVENANT OF FURTHER ASSURANCES . 15
19.6
9.1 Third Party Actions . . . . . . . . . . . . 15
19.7
9.2 Further Assurances . . . . . . . . . . . . . 16
19.8
9.3 Processing . . . . . . . . . . . . . . . 16
19.9
9.3.1 Scheduling . . . . . . . . . . . . . 16
19.10
9.3.2 Processing . . . . . . . . . . 16
19.11
9.4 Other Governmental Permits . . . . . . . 16
19.12
9.5 Financing of Public Facilities and /or
24
Services . . . . . . . . . 16
9.6 Utilities Coordination . . . . 16
9.7 Covenant of Good Faith and Fair Dealing . . 17
9.8 Stephens' Kangaroo Rat . . . . . . . . . . . 18
10. PERMITTED DELAYS . . . . . . . . . . . . . . . . 18
11. ESTOPPEL CERTIFICATES . . . . . . . . . . . . . 18
12. RECORDATION BY CITY CLERK; CONTINUING COVENANTS 18
13. DEFAULT AND REMEDIES . . . . . . . . . . . . . 18
13.1 Events of Default . . . . . . . . . . . . . 18
13.2 Termination . . . . . . . . . . . . . . . . . 19
13.3 Default by City . . . . . . . . . . . . . . . 19
13.4 No Waiver . . . . . . . . . . . . . 19
13.5 Effect of Termination . . . . . . . . . . . 19
13.6 Institution of Legal Action . . . . . . . . . 20
14. CONSISTENCY FINDING
15. CONSENT OF OTHER PARTIES
16 ASSIGNMENT AND RELEASE
16.1 Assignment .
16.2 Merchant Builders
16.3
16.4
17. ENCU
17.1
17.2
17.3
20
20
20
20
21
21
21
22
22
22
18. INSURANCE 22
18.1 Hold Harmless 22
18.1.1 Compensation Insurance 23
18.1.2 Public Liability and Property Damage
Insurance. . . . . . . . . . . . . . 23
19. GENERAL PROVISIONS . . . . . . . . . . . . . 23
19.1 Development Exactions . . . . . . . . . . . 23
19.2 Recitals . . . . . . . . . . . . . . . . . 23
19.3 Exhibits . . . . . . . . . . . . . . . . . 23
19.4 Applicable Law . . . . . . . . . 23
19.5 No Joint Venture. Partnershin or Third Partv
ii)
Beneficiary . . . . . . . . . . . . . 23
19.6 Notices . . . . . . . . . . . . . 23
19.7 Severability . . . . . . . . . . . . . 24
19.8 Entire Agreement . . . . . 24.
19.9 Signature Pages; Counterparts . . . . 24
19.10 Time . . . . . . . . . . . . . . . . . 24
19.11 Captions . . . . . . . . . . . . . . 24
19.12 Construction. Number and Gender . . . 24
ii)
DEVELOPMENT AGREEMENT
BETWEEN
THE CITY OF LAKE ELSINORE
AND
MURDOCK ALBERHILL RANCH LIMITED PARTNERSHIP
FOR
MURDOCK ALBERHILL RANCH
1. PARTIES AND DATE
The parties to this Development Agreement ( "Agreement ")
are the City of Lake Elsinore, California, a municipal
corporation ( "City "), and Murdock Alberhill Ranch Limited
Partnership, a California limited partnership ( "Developer ").
The project to which this Agreement applies is commonly known as
Murdock Alberhill Ranch. This Agreement is made and entered
into on 1992 (the "Approval Date ").
2. DEFINITION
2.1 "Agreement" means this Development Agreement.
2.2 "Approval Date" means the date this Agreement is
first approved by the City Council. This Agreement shall be
dated as of the Approval Date.
2.3 "CEQA" means the California Environmental Quality
Act of 1970 (California Public Resources Code Section 21000 et
sea.) and the state CEQA Guidelines (California Code of
Regulations, Title 14, Section 15000 et sec.).
2.4 "City" means the City of Lake Elsinore, California,
a municipal corporation, including its officials, officers,
employees, commissions, committees and boards.
2.5 "City Council" means the duly elected City Council
of the City.
2.6 "Community Park" means the approximately 34.0 gross
acres active use park designated in the Specific Plan, for the
enjoyment of residents of the Property, as well as residents of
areas outside the Property.
2.7 "Developer" means Murdock Alberhill Ranch Limited
Partnership, a California limited partnership and its successors
in interest to all or any part of the Property except as
expressly limited elsewhere in this Agreement.
2.8 "Development" means the subdivision and sale of
land and construction and /or installation of structures,
improvements and facilities comprising the Project (and the
obtaining of any Development Approvals required for such
activities) as set forth in this Agreement including, without
limitation, grading, construction and public financing of
infrastructure and public facilities related to the Project
whether located within or outside the Property), the
construction of private and /or public buildings, both
residential and non- residential, and the installation of
landscaping. "Development" does not include the maintenance,
repair, reconstruction or redevelopment of any building,
structure, improvement or facility after the construction and
completion thereof.
2.9 "Development Approvals" means zoning, site specific
plans, maps, permits, and other entitlements to use of every
kind or nature which have been or may be approved or granted by
the City in connection with the Development of the Property,
including but not limited to general plan amendments, specific
994094- 115 -010 - 1 - Devel"pnent Agreement
11- 17- 92/1763H(Org:1300H)
plans and amendments thereto, EIRs, negative declarations,
categorical or statutory exemptions, site plans, development
plans, tentative and final subdivision tract maps, vesting
tentative maps, parcel maps, conditional and special use
permits, grading and building permits, and other similar
permits, maps, plans, authorizations, licenses and entitlements.
2.10 "Development Exaction" means any requirement of
City or other public entity controlled by the City in connection
with or pursuant to any land use regulation or Development
Approval for the dedication of land, the financing or
construction of improvements or public facilities or of private
facilities for public use, or the payment of money (whether
characterized as fees, taxes, special taxes or otherwise) in
order to lessen, offset, mitigate or compensate for the impacts
of development on the environment or other public interests.
2.11 "Development Impact Fee" means any fee, charge,
dedication of property without payment or other exaction adopted
citywide that relates to the provision of public infrastructure,
facilities or services which is applied to all development
projects in the City and which is not subject to abatement or
reduction.
2.12 "Effective Date" means the date of adoption by City
of an ordinance authorizing execution of this Agreement.
2.13 "EIR" means the Final Environmental Impact Report
for the Project certified by the City Council on August 8, 1989
pursuant to Resolution No. 89 -36, as amended by the addendum to
the Final Environmental Impact Report certified by the City
Council on , 1992 pursuant to Resolution
No. each of which is in accordance with the provisions
of CEQA.
2.14 "Existing Development Approvals" means those
Development Approvals in effect on the Approval Date of this
Agreement with respect to the Property, including but not
limited to the Specific Plan, EIR and Prezoning Approval.
2.15 "Existing Land Use Regulations" means the Existing
Development Approvals and, to the extent applicable and not
inconsistent with the Existing Development Approvals, the City's
rules, regulations, and official policies governing development,
density, permitted uses, growth management (including but not
limited to regulation of the rate of development, relative
quality of development or facilities level of service
standards), environmental considerations and design criteria,
taxes and fee programs, including, without limitation, the
City's general plan and zoning, subdivision and building
regulations, whether adopted by the City Council or by the
voters in an initiative, which are in effect as of the Approval
Date hereof.
2.16 "Government Code" means the California Government
Code, as amended.
2.17 "Index" means the Engineering News Record
Construction Cost Index (20 -City Average) published by
McGraw -Hill Inc., or if such Construction Cost Index ceases to
be published, then such other index as the City and Developer
may reasonably agree upon as a measure of the change in costs of
construction of public improvements.
2.18 "Mortgage" means a mortgage, deed of trust, sale
and lease back arrangement or other transaction in which the
Property, or a portion thereof or an interest therein, is
pledged as security, contracted in good faith and for fair value.
994094- 115-010 -2- Development Agrement
11- 17- 92/1763H(Org:1300H)
2.19 "Mortgagee" means the holder of the beneficial
interest under a Mortgage or the owner of the Property, or
interest therein, under a Mortgage.
2.20 "Neighborhood Park" means the approximately 5.8
gross acres (5.0 net acres) active use park designated in the
Specific Plan, for the enjoyment of residents of the Property,
as well as residents of areas outside the Property.
2.21 "Permit Date" means the date the first building
permit is issued for any dwelling unit in the Project.
2.22 "Project" means the Development of the Property
contemplated by the Existing Development Approvals and this
Agreement and the Specific Plan.
2.23 "Property" means the real property which is the
subject of this Agreement and which is described in Exhibit "A"
hereto.
2.24 "Specific Plan" means the Murdock Alberhill Ranch
Specific Plan. The Specific Plan is an amendment to that
portion of Specific Plan No. 89 -2 consisting of the Property and
shall be considered and approved by the City concurrently with
this Agreement.
2.25 "Substantial Compliance" for the purposes of this
Agreement and periodic review hereunder means the party has
sufficiently followed the terms of this Agreement so as to carry
out the intent of the parties in entering into this Agreement.
3. RECITALS
3.1 Property. The Developer is,the fee owner of the
Property which is more particularly described in Exhibit "A"
hereto.
3.2 Legal Authority. Government Code Section 65864 et
sec. authorize the City to enter into development agreements in
connection with the development of real property in the City or
its sphere of influence. This Agreement is made and entered
into pursuant to those provisions of state law and city
ordinances, policies, regulations and provisions for
consideration of development agreements, and all applicable
provisions of federal law.
3.2.1 Approval of Development Agreement.
On , 1992, the Planning Commission of City,
after giving notice pursuant to Government Code sections 65854,
65854.5, 65856 and Section 17.92.020 of the City of Lake
Elsinore Municipal Code, held a public hearing on the
application for this Agreement. The City Council, after
providing public notice as required by law, similarly held a
public hearing on 1992. On 1992 (the
Approval Date "), the City Council adopted an Ordinance No.
approving this Agreement and the Ordinance thereafter took
effect on 1992.
3.3 Consistency Finding. Byapproving and executing
this Agreement, the City finds that its provisions are
consistent with the City's General Plan and with the Specific
Plan, and the City further finds and determines that execution
of this Agreement is in the best interests of the public health,
safety and general welfare of the City's present and future
residents, property owners and taxpayers. The Development has
been analyzed and reviewed by the City as part of its process of
granting development approvals, in view of the enacted land use
standards and policies of the City embodied in its Existing Land
Use Regulations and in view of State law including, without
limitation, CEQA.
994094 -115 -010 - 3 - Development Agreement
11- 17- 92/1763H(Org:1300H)
3.4 Status of Project. The Developer is in the process
of planning, financing and preparing for the Development, which
is a large scale, mixed use, phased development in accordance
with the Specific Plan of not more than 1,449 dwelling units
plus an additional residential overlay of 370 dwelling units on
the portion of the property zoned as C -1 Neighborhood
Commercial), an elementary school, open space, recreational uses
and 1,071,576 square feet of commercial /industrial buildings on
approximately 511 acres within the City and which is more
particularly described in the Specific Plan and the EIR.
Pursuing the Development as contemplated by the Specific Plan
and providing the mitigation set forth in the EIR will require
major investment and expenditures by the Developer in public
facilities and on -site and off -site improvements.
3.5 Consideration. The City has determined that entry
into this Agreement will further the goals and objectives of the
City's land use planning policies, by eliminating uncertainty in
planning for the orderly development of the Project, to the end
that adequate long term plans regarding the provision of
necessary infrastructure for existing and future City residents
can be developed and implemented. The City has further
determined that entry into this Agreement will provide the
maximum effective utilization of the resources of the City, at
the least economic cost to its citizens. Without limiting the
generality of the foregoing, the benefits conferred pursuant to
this Agreement (including but not limited to the matters set
forth in Section 4 below) will help increase traffic capacity
for the road system of the City and will facilitate the
installation of certain other vital public improvements, all of
which will significantly promote the health, safety and general
welfare of present and future residents of the City, in
compliance with all applicable laws.
In exchange for these benefits to the City and its
residents, the Developer wishes to receive the assurances
permitted by State law and all other applicable laws that the
Developer may proceed to develop the Project in accordance with
the Specific Plan, and at a rate of development of its choosing,
subject to the terms and conditions of this Agreement. The
rights, duties, obligations and assurances provided by the City
and the Developer to each other in this Agreement are being
provided pursuant to and as contemplated by State law, are
bargained for and in consideration for the undertakings of the
parties, and are intended to be and have been relied upon by the
parties to their detriment, such that the Developer will be
deemed to have a vested interest in the Specific Plan, which
will be the controlling land use plan for the Project.
4. DEVELOPER PROVIDED AMENITIES
4.1 Description of Amenities. Improvements and
payments provided by the Developer and others during the
planning, financing and Development of the Project, will result
in substantial general public benefit to be delivered as part of
the consideration for City's entry into this Agreement that
would not otherwise be available to the City and its residents.
That additional consideration is described in detail in the
following subsections of this Section 4.
4.1.1 Development Agreement Fee. At the time of
issuance of a residential building permit for construction
within the Property, the party seeking such permit shall pay to
the City a Development Agreement Fee ( "DAG "). For the period
from the Effective Date to the day immediately preceding the
third anniversary of the Permit Date, the DAG will be in the
amount of $1,000.00 per residential dwelling unit. The DAG will
be increased by $250.00 on each succeeding third anniversary of
the Permit Date. For example, for the period from the third
994094- 115 -010 -4- Develop" t Agreement
11- 17- 92/1763H(Org:1300H)
anniversary of the Permit Date to the day immediately preceding
the sixth anniversary of the Permit Date, the DAG will be in the
amount of $1,250.00 per residential dwelling unit. The DAG will
constitute the sole DAG that a party seeking residential
building permits within the Project will be required to pay,
except for the SDAG referred to in Section 4.1.7.
Non - residential development shall be exempt from any DAG. The
DAG will be used at the City's discretion to fund the cost of
public capital facilities and improvements including, without
limitation, park facilities, recreation facilities, and
municipal building, whether or not such facilities are located
on the Project or confer a special benefit to the Project. Upon
request by the Developer, the City will provide the Developer
with a periodic accounting setting forth the amount of the DAG
levied and collected by the City pursuant to this Agreement and
the specific purposes and /or projects for which the DAG has been
expended.
4.1.2 Feasibility Study. Within six (6) weeks
after the Effective Date, the Developer will pay the sum of
50,000 to the City which will be used for the purpose of
preparing a City of Lake Elsinore /Sphere Public Facilities
Planning Study (the "Planning Study ") for study of public
facilities impacted by development of the Project. Upon request
by Developer, the City will provide Developer with a periodic
accounting setting forth the amount expended on the Planning
Study and the use of the funds therefor.
4.1.3 School Site. The Developer will reserve for
and offer to convey to the Lake Elsinore Unified School District
an elementary school site (16.7 gross acres; 10 acres net) in
the Project. The Developer will convey such school site on such
terms and conditions as are mutually agreed between the
Developer and the Lake Elsinore Unified School District.
4.1.4 Park Sites. The following provisions
regarding the park land dedication will satisfy and exceed the
Project's obligations under the Quimby Act or the applicable
City Ordinances. In consideration of Developer's expenditures
for park improvements as provided in the following provisions'of
this Section 4.1.4, the Project shall be exempt from any other
Development Exaction for park land acquisition or improvements.
a) Community Park. Prior to the issuance
of the First Certificate of Occupancy of any model residential
complex for the Project, the Developer will convey to the City
the Community Park site as described in the Specific Plan and
the Developer will also construct on the Community Park site
certain facilities (including, without limitation, grading,
irrigation, hydroseeding, landscaping, recreational equipment
and facilities and other improvements and related design,
engineering, construction and associated soft costs)
collectively, the "Community Park Improvements "); provided,
however, that the Developer will not be required to spend more
than $1,500,000 (the "Park Improvement Sum") (as the Park
Improvement Sum is adjusted under the provisions of the
following two sentences) for all of the Community Park
Improvements. The amount of the Park Improvement Sum shall be
adjusted by the percentage increase, if any, in the Index during
the period beginning on the Effective Date and ending on the
date Developer commences the Community Park Improvements. The
amount of the Park Improvement Sum shall not be adjusted
downward if there is a decrease in the Index during such
period. Any remaining costs of improvement of the Community
Park will be funded by the City. The Community Park shall be
developed in accordance with applicable Existing Land Use
Regulations and a concept plan showing the physical layout of
994094- 115 -010 - 5 - Deve OMMt Agreement
11- 17.92/1763H(Org :1300H)
Community Park Improvements which shall initially be developed
by the City's architect (the "Community Park Concept Plan ").
The City shall consult with the Developer in preparing the
Community Park Concept Plan. The precise layout and design of
the Community Park Improvements shall be determined, consistent
with the Community Park Concept Plan, by a consultant retained
by Developer and approved by the City and City shall approve
such design within sixty (60) days following recording of the
first subdivision map for the Project The City acknowledges and
agrees that the Community Park is an important feature of the
Project and that the Developer desires the construction of high
quality recreational facilities in the Community Park to enhance
the value of the Project.
b) Neighborhood Park. Prior to the
opening of the model units in Planning Area 2 adjacent to the
Neighborhood Park, the Developer will dedicate to the City the
Neighborhood Park site as described in the Specific Plan. The
Developer's sole requirement with respect to the Neighborhood
Park site is to dedicate such site pursuant to this Agreement in
a rough graded condition.
c) Private Recreational Facilities.
Developer will construct two (2) private neighborhood
recreational facilities of approximately 1.2 and 2.6 gross
acres, respectively, to be located within the Specific Plan area
in accordance with the Specific Plan. Each private neighborhood
recreational facility will be constructed in conjunction with
the development of the planning area that will benefit from such
private neighborhood recreational facility.
4.1.5 Affordable Housing. The Developer shall
provide its fair share of affordable housing within the
multi - family zones of the Specific Plan. Such affordable
housing will be available to persons in the low and very low
income ranges, as determined by the County of Riverside Median
Average at the time building permits are issued for housing.
Such affordable housing shall be not less than 15% or greater
than 20% of the total number of multi - family residential
dwelling units actually constructed by the Developer. City will
assist the Developer in providing the Developer's fair share of
affordable housing by providing economic incentives to the
Developer, including, without limitation, access to available
redevelopment set aside funds or other economic incentives such
as bond assistance, reduction of development standards, etc.
Developer may provide the Project's fair share of affordable
housing by providing the aforesaid number of units at one or
more other locations within the City acceptable to the City
Council.
4.1.6 Municipal Pool. Within six (6) months after
the Effective Date, the Developer shall pay the sum of $100,000
to the City which shall be used toward the construction of a
municipal pool at a location within the City acceptable to the
City Council. Upon request by Developer, the City will provide
Developer with a periodic accounting setting forth the amount
expended on the municipal pool and the use of funds therefor.
The City may also utilize these funds for any other lawful
purpose.
4.1.7 Supplemental Development Agreement Fee.
At the time of issuance of a residential building permit for
construction within the Property, the party seeking such permit
shall pay to the City a Supplemental Development Agreement Fee
SDAG ") in the amount of $210.00 per residential dwelling
unit. Non - residential development shall be exempt from any
SDAG. The SDAG will be used at the City's discretion to
supplement the City's maintenance and operation costs, including
public safety costs, within the Project area. Upon request by
the Developer, the City will provide the Developer with a
994094.115 -010 - 6 - Development Agreement
11.17- 92/1763H(Org:1300H)
periodic accounting setting forth the amount of the SDAG levied
and collected by the City pursuant to this Section 4.1.7 and thespecificcostsforwhichtheSDAGhasbeenexpended.
5. DURATION OF AGREEMENT
5.1 Term. Pursuant to Government Code Section 65865.2, the duration of this Agreement will be for 10 calendar yearsfromandaftertheCommencementDate, subject to extension bytheamountofanypermitteddelayasprovidedbySection10below (the "Expiration Date "). As used in this Agreement, theterm "Commencement" shall mean (a) the date on which the
Elsinore Valley Municipal Water District begins its regular
operation of the new wastewater treatment facility currentlyplannedfortheProjectandotherdevelopmentprojectsintheProject's vicinity commonly known as the "Alberhill WaterReclamationPlant ", or (b) the fifth anniversary of theEffectiveDate, whichever date, (a) or (b), is earlier.
Developer and City shall jointly execute and record a memorandumoftheexactCommencementDatenolaterthan90daysaftertheCommencementDateoccurs. The Expiration Date shall be
automatically extended to 15 years from and after the
Commencement Date upon issuance of the 627th residentialbuildingpermitwithintheProject.
5.2 Scheduling. Although Development of the Projectwillbeundertakenassoonasreasonablypracticable, the CityandtheDeveloperacknowledgethattheDevelopercannotatthistimeaccuratelypredictthetimeschedulewithinwhich
Development of the Project will occur, except that it is in theDeveloper's present reasonable expectation that it will be
completed within the aforementioned 10 -year period. Decisions
with respect to the rate of Development of the Project willdependonanumberofcircumstancesnotwithinthecontrol of
the Developer including, without limitation, market factors, demand, the state of the economy and other matters. Therefore, so long as Development of the Project occurs in a manner
consistent with the City's Existing Land Use Regulations andthisAgreement, it is the intent of the parties that the
Developer will have the right to pursue the Development of the
Project at the rate and in the sequence deemed appropriate bytheDeveloperwithintheexerciseofitssoundbusinessjudgment
and that no regulation of the rate of Development shall be
applicable to the Project.
5.3 Certification of Completion. For purposes of thisAgreement, completion of the Project will mean the date on which
a certificate of occupancy or comparable instrument issued bytheCityforthelastimprovementorstructureconstructedpursuanttothisAgreement. Promptly upon completion of theProject, the Developer will submit a draft certification of
completion for review by the City. Upon review, the City willprovidetheDeveloperwithaletterofcompletionso
certifying. This certification will be a conclusive
determination that the obligations of the Developer pursuant tothisAgreementhavebeenmet. The certification will be in aformthatwillallowittoberecordedintheRecordsoftheRiversideCountyRecorderandeffectareleaseand
extinguishment of the encumbrance of this Agreement. A release, issued by City in accordance with Section 16.4 herein, shall act
as a conclusive determination that the obligations of Developer
pursuant to this Agreement have been met with respect to a
portion of the Property so released.
5.4 Termination. This Agreement will be deemed
terminated and of no further force and effect upon the first tooccurof (i) certification of completion pursuant to Section 5.3or (ii) expiration of the term of this Agreement, or
iii) Developer's election to terminate pursuant to Sections5.5. 8.5. and 8.6 inclusive or (iv) termination pursuant toSection8below.
994094 -115 -010 - 7 - Devel11.17- 92/1763H(org:1300H) opeent Agreement
5.5 Periodic Review.
State law, review this CAgreement
atn
least ronceeevery
12pmonthse
from and after the Effective Date hereof and the City mayinitiateadditionalreviewofthisAgreementatCity'sdiscretionexercisednotlessthan6monthsfromthelastperiodicreview. During each such periodic review, the City andtheDeveloperwillhavethedutytodemonstratetheirgoodfaithcompliancewiththetermsandconditionsofthisAgreement.
Both parties agree to furnish such evidence of good faith
compliance as may be reasonably necessary, or required. TheCity's failure to review the Developer's compliance with thisAgreement, at least annually, will not constitute or be assertedbyeitherpartyasabreachbytheotherparty. Such periodic
review shall be limited in scope to the good faith SubstantialCompliancebytheDeveloperandtheCitywithtermsofthisAgreement. A finding by City of good faith Substantial
Compliance by Developer and the City with the terms of thisAgreementshallconclusivelydeterminesaidissueuptothe dateofsuchfinding.
b) City shall deposit in the mail to Developer acopyofallstaffreports, and to the extent practical, related
exhibits concerning contract performance under this Agreement aminimumofthirty (30) calendar days prior to any such review oractionuponthisAgreementbyCity. Upon receipt of such
notice, Developer shall pay to City a processing fee of $1,000todefrayCity's costs of the periodic review being conducted. Upon request by Developer, Developer shall be permitted an.
opportunity to be heard orally and in writing regarding itsperformanceunderthisAgreementatanyreviewontheAgreement.
c) Developer's duty to demonstrate its good faithSubstantialComplianceshallbesatisfiedbythepresentationtoCityof (i) a written report identifying Developer's performance
or the reasons for its non - performance excused pursuant to thetermsofthisAgreementor (ii) oral or written evidencesubmittedatthetimeofreview. The parties recognize that
this Agreement and the documents incorporated herein could bedeemedtocontainthousandsofrequirements (i.e., constructionstandards, landscape standards, etc.), and that evidence of eachandeveryrequirementwouldbeawastefulexerciseoftheparties' resources. Accordingly, Developer shall be deemed tohavesatisfieditsdutywhenitpresentsevidenceonitsgoodfaithandSubstantialCompliancewiththemajorprovisionsoftheSpecificPlanandtheuses, numbers, types, densities,
heights and sizes of structures completed and any reservationsanddedicationstotheCity. Generalized evidence or a
statement shall be accepted in the absence of evidence that suchevidenceisuntrue. Either party may address any requirement ofthisAgreement; provided, however, that City shall provide
thirty (30) days written notice to Developer of any requirdmentitdesirestobeaddressed. If, at any time of review an issue
not previously identified in writing is required to be addressedbyCity, the review, at the request of either party, shall be
continued to afford sufficient time for analysis and preparation.
the requirements ofnSgctione5t5( a)
tthrouaha(
c)rinclusiveCefindsthatDeveloperhasfailedtoperformanymaterialtermor
provision of this Agreement, such failure may be treated as aneventofDefault. Upon such written determination by the City, Developer shall have a period of thirty (30) days following thewrittendeterminationofCityCounciltocureanysuchfailure
to perform; provided, however, that if the nature of the failure
of performance is such that it cannot be cured within suchperiod, then the diligent prosecution to completion of the cureshallbedeemedtobeacurewithinsuchperiod. Any notice byCityduringperiodicreviewofDeveloper's failure to perform
994094 -115 -010
Devel11- 17- 92/1763H(Or9:1300H) opeent Agreement
any material term or provision of the Agreement shall specify indetailthenatureoftheallegedfailuretoperformandthe
manner in which such failure may be satisfactorily cured in
accordance with this Agreement. During the time period herein
specified for the cure of a failure of performance, the
Developer will not be considered to be in default for purposes
of termination of this Agreement, or for purposes of institution
of legal proceedings with respect thereto.
e) If, after compliance with the requirements
contained in Section 5.5(a) through (d) inclusive, City finds
that Developer has failed to perform any material term or
provision of this Agreement, such failure may be the basis for
City modification of the Agreement, provided that (i) any
modification shall only be to the extent necessary to protect
the health and safety of the community as opposed to any other
alternative; and (ii) Developer shall have a right of judicial
review as provided for in Section 13.1(e); and (iii) Developer
shall have the right, within ten (10) days of City's notice of
modification of the Agreement or within ten (10) days of anyfinaljudgmentintheeventofjudicialreviewofany
modification of the Agreement to terminate the Agreement.
Developer's termination under this Section 5.5 shall not affect
Developer's obligations with respect to any term or provision
Developer was required to perform prior to the periodic review.
Termination of this Agreement pursuant to this provision will
not affect any right or duty created by the then- existing City
entitlement or approval with respect to the Project, but the
rights and obligations of the parties hereunder shall otherwise
cease as of the date of such termination.
f) Developer may seek judicial review of anyfindingbyCityoffailureofDevelopertodemonstrateingood
faith Substantial Compliance under the terms of this Agreement
under this Section. Any such legal action shall be commenced in
the Superior Court of Riverside County. In any judicial
proceeding, the Court shall apply the standard of judicial
review in cases affecting vested rights.
6. VESTED RIGHT
6.1 Vesting. By entering into this Agreement and
relying thereon, the Developer is obtaining the vested right to
proceed with Development of the Project in accordance with the
Existing Land Use Regulations, this Agreement, and any remaining
Development Approvals adopted by the City as provided in
Section 8 below. By entering into this Agreement and relyingthereon, the City is securing certain public benefits which helptoalleviatepotentialproblemsintheCityandenhancethe
public health, safety and welfare of existing and future City
residents. In view of the foregoing, the City agrees to the
following:
6.1.1 No Conflicting Enactments. Neither the City
Council nor any other agency, department, elected official,
employee or executive of the City will enact, or assist in the
adoption by initiative of, any ordinance, policy, rule,
regulation or other measure applicable to the Project which
relates to the rate, timing or sequencing of the development or
construction of all or any part of the Project or which is
otherwise in conflict with this Agreement and the vested right
of Developer to proceed with Development of the Project in
accordance with the Existing Land Use Regulations, this
Agreement and any remaining Development Approvals adopted by theCityasprovidedinSection8below. In addition to and not in
limitation of the foregoing, no moratorium or other limitation
whether relating to the rate, timing or sequencing of the
Development of all or any part of the Project, the Existing LandUseRegulations, and Development Approvals adopted as provided
994094 -115 -010 -9- Development Agreement
11- 17.92/1763H(Drg:1300H)
in Section 8 below, and whether or not enacted by initiative,
referendum or otherwise), affecting parcel or subdivision maps,
building permits, site development permits, special use permits,
occupancy certificates or any other entitlement to use, which
has been approved, issued or granted in the City, or in parts of
the City, will apply to the Project to the extent such
moratorium or other limitation is in conflict with this
Agreement and the vested right of Developer to proceed with
Development of the Project in accordance with the Existing Land
Use Regulations, this Agreement and any remaining Development
Approvals adopted by the City as provided in Section 8 below.
6.1.2 Citizen Initiative. Notwithstanding the
foregoing, if an ordinance, general plan or zoning amendment,
measure, initiative, referendum, moratorium, policy, rule,
regulation or other limitation enacted by citizens of the Citythroughtheinitiativeprocess, is determined by a court of
competent jurisdiction to invalidate or prevail over all or any
part of this Agreement, then the Developer will have no recourse
against the City pursuant to this Agreement other than for
breach of Sections 6.1.1 and 9.7, but will retain all other
rights, claims and causes of action at law or in equity which
the Developer may have independent of this Agreement. However,
the foregoing will not be deemed to limit the Developer's right
to appeal any such determination of such ordinance, general plan
or zoning amendment, measure, moratorium, policy, rule,
regulation or other limitation. The foregoing will also not be
deemed to limit the effect of Section 19.7.
6.1.3 Gradincr. Without limiting the effect of any
other provision of this Agreement, the Developer will have the
right to commence grading the Property at any time after the
Effective Date (subject to obtaining a grading permit). City
approval of grading permits will not be unreasonably denied
based on season or date, provided that the Developer agrees to
comply with all required precautions, to use due care in its
grading activities and to take reasonable steps to prevent
erosion, slippage and dangerous run off conditions.
6.2 Benefit of an Earlier Vesting. Nothing contained
in this Agreement shall serve to limit Developer's obtaining of
a vested right to proceed with the Project or any portion
thereof pursuant to the provisions of the state or federal
constitution or decisional law.
7. GENERAL DEVELOPMENT OF THE PROJECT
7.1 Project. While this Agreement is in effect,
Developer shall have a vested right to Develop the Project in
accordance with the terms and conditions of this Agreement, and
in accordance with, and to the extent of, the Existing Land Use
Regulations and any subsequent Development Approvals approved by
the City as provided in this Agreement. Except as otherwise
provided in this Agreement, the Existing Development Approvals
will control the overall design and Development 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
material adverse environmental impacts caused ay the Project.
The permitted uses of the Property, the density and intensity of
use, the maximum height and size of proposed buildings, the
provisions for reservation and dedication of land for public
purposes and other terms and conditions of Development
applicable to the Property will be those set forth in this
Agreement and the Existing Development Approvals or as may
otherwise be mutually agreed upon by the parties. The Project
shall be configured generally as indicated on the Specific
Plan. The location of the improvements shall be generally as
indicated on the Specific Plan; provided, however, that the
994094- 115 -010 _10- Development Agreement
11- 17- 92/1763H(Org:1300H)
Specific Plan placement and location of improvements including
common area facilities, roadways and landscaping as shown on
said plan is descriptive only and may be varied, amended,
changed or modified at the election of the Developer, with
approval of the City Manager, in accordance with the applicable
provisions of the Existing Land Use Regulations. Such right of
approval is to ensure compliance with the Specific Plan and
Existing Development Approvals, and to ensure that amendments to
the Specific Plan do not adversely affect compatibility with
off -site improvements. The number of residential units actually
constructed in any planning unit may vary in accordance with the
provisions of the Specific Plan.
7.2 Phasing of Developments. No moratoriums or
ordinances imposing limitations on the number of building
permits which may be issued by City shall apply to the Property
unless a finding is made in accordance with Section 8.6. City
specifically acknowledges that Developer's discretionary control
over timing and phasing of construction is a vested right
provided to Developer under this Agreement.
7.3 Reservations or Dedications. Reservations or
dedications of portions of the Property may, from time to time,
be required by the City in accordance with or as part of
subdivision map approvals for the remainder of the Property.
Such reservations or dedications shall be imposed in accordance
with the Existing Land Use Regulations. For the purpose of this
Section 7.3 and any subsequent subdivision map approvals, any
reference to "dedication" or "reservation" of land shall be
construed to include the acquisition of such land by a
Mello -Roos Community Facility District, or other financing
district at a purchase price equal to the fair market value
thereof. Accordingly, any land "dedicated" or "reserved" to the
City or other public entity pursuant to a subdivision map
approval may, at the City's option, be purchased by a Community
Facilities District (or other financing district) formed over
the Property to the extend funds are legally available to such
purpose.
7.4 Operating Memoranda and Amendments. The parties
acknowledge that the passage of time may demonstrate that
changes are necessary or appropriate with respect to the details
of each party's performance under this Agreement. Because the
parties desire to retain a certain degree of flexibility with
respect to the details of each party's performance pursuant to
this Agreement, if and when the parties find that changes are
necessary or appropriate, they will, unless otherwise required
by law, effectuate such changes or adjustments through operating
memoranda approved and executed by the Developer and by the City
Manager or his designee on behalf of the City. Each such
operating memorandum will be attached hereto as an addendum and
become a part hereof, and may be further changed from time to
time as necessary or appropriate, as provided in this Section.
No such operating memorandum will be deemed to be an amendment
of this Agreement under Government Code Section 65868 and unless
otherwise required by law, no such operating memorandum will
require prior notice or hearing. Notwithstanding the foregoing,
the following matters will not be considered as appropriate
subjects of operating memoranda, but will be considered
substantive amendments which must be reviewed by the Panning
Commission of the City and approved by the City Council.
7.4.1 Alteration of Permitted Uses. Alteration of
the permitted uses of the Property except to the extent
permitted by this Agreement or the Specific Plan.
7.4.2 Increase in Density or Intensity. Increase
in the density or intensity of use or number of buildable lots
except to the extent permitted by this Agreement or the Specific
Plan.
994094- 115 -010 - 11 - Development Agreement
11.17- 92/1763H(Org- 1300H)
7.4.3 Increase in Height and Size. Increase in
the maximum height and size of permitted buildings except to the
extent permitted by this Agreement or the Specific Plan.
7.4.4 Deletion of Reservation Requirements.
Deletion of a requirement for the reservation or dedication of
land for public purposes, except for minor boundary adjustments
approved and executed by the City Manager or his designee or
behalf of the City and except to the extent permitted by this
Agreement or the Specific Plan.
7.4.5 Supplemental Environmental Impact Reports.
Any amendment or change requiring a subsequent or supplemental
Environmental Impact Report pursuant to Public Resources Code
Section 21166.
8. RULES, REGULATIONS AND OFFICIAL POLICIES
8.1 Effect of Agreement on Land Use Regulations. The
rules, regulations and official policies governing permitted
uses of the Property, the density and intensity of use of the
Property, the maximum height and size of proposed buildings and
the design, improvement and construction standards and
specifications applicable to the development of the Property are
those rules, regulations and official policies in force as of
the Approval Date as set forth in this Agreement and the
Existing Land Use Regulations. City agrees that during the term
of this Agreement, Developer shall have the vested right to
proceed with Development of the Property in accordance with the
Existing Land Use Regulations, this Agreement and any remaining
Development Approvals adopted by the City as provided in this
Section 8. In connection with any Development Approval which
the City is permitted to give under this Agreement with respect
to the Project, or otherwise under the Existing Land Use
Regulations, the City will exercise its discretion or take
action in a manner which is as expeditious as possible and which
complies and is consistent with the Existing Development
Approvals and the standards, terms and conditions contained in
this Agreement, and in a manner which will not interfere with
the Development of the Project for the uses permitted therein,
and to the height, density and intensity specified in this
Agreement and in the Existing Development Approvals, and at the
rate of Development selected by the Developer. Subject to
Section 9.3, the City will accept for processing and act on all
applications for further land use entitlement approvals which
are necessary or appropriate with respect to the Project.
8.2 New Rules. Although the City's current rules and
regulations governing permitted uses of the Property, density of
development and design, improvement and construction will be
those rules and regulations in force on the Approval Date of
this Agreement (i.e., the Existing Land Use Regulations), this
Agreement (i.e., the Existing Land Use Regulations), this
Agreement will not prevent the City from applying the following
new rules, regulations and policies:
8.2.1 Processing Fees. Processing fees and
charges adopted by the City and uniformly applied throughout th_
City to cover the estimated actual costs to the City of
processing applications for development approvals, for
monitoring compliance with any development approval or for
monitoring compliance with environmental impact mitigation
measures.
8.2.2 Procedural Regulations. Procedural
regulations uniformly applied throughout the City relating to
hearing bodies, petitions, applications, notices, findings,
records, hearings, reports, recommendations, appeals and any
other matter of procedure.
994094- 115 -010 _ - 12 - Development Agreement
11- 17- 92/1763H(Org:1300H)
8.2.3 Regulations Governing Construction
Standards. Regulations governing construction standards and
specifications including, without limitation, the City's
Building Code, Plumbing Code, Mechanical Code, Electrical Code,
Fire Code, and the City's Engineering Design Manual, provided
that such construction standards and specifications are applied
on a City -wide basis.
8.2.4 Certain Conflicting Regulations.
Regulations which are inconsistent with the Existing Development
Approvals or this Agreement if such regulations have been
consented to in writing by the Developer.
8.2.5 Non - Conflicting Regulations. In accordance
with Government Code Section 65866, this Agreement shall not
prevent City in subsequent actions applicable to the Property
from applying new rules, regulations and policies which do not
conflict with the existing rules, regulations and policies set
forth in the Existing Land Use Regulations. Any regulation,
whether adopted by initiative or otherwise, limiting the rate or
timing of Development (regardless of the mechanism used to so
limit the rate and timing of development) of the Property shall
be deemed to conflict with the Existing Land Use Regulations and
shall therefore not be applicable to the Development to the
Property.
This Section 8.2 shall not preclude the application to
Development of the Property of changes in City laws,
regulations, plans or policies specifically mandated and
required (as opposed to permitted) by changes in state or
federal laws or regulations. If such changes in state or
federal laws prevent or preclude compliance with one or more
provisions of this Agreement and implementation of the
Development Approvals, the parties agree to take appropriate
action pursuant to Section 8.5 of this Agreement.
8.3 Police Power and Taxing Power. The City will not
directly or indirectly impose or enact any additional
Development Exaction, through the exercise of either the police
power or the taxing power with respect to the Development of the
Project except as provided in the Existing Land Use Regulations
or in this Agreement. However, nothing in this Agreement will
prohibit the adoption and application of (i) a special tax
approved by the City's voters, provided that such tax is imposed
on a City -wide basis for City -wide or general plan facilities
and provided that equitable credits are provided for any such
facilities that have been or will be provided by Developer,or
the Project through other means, or (ii) future City -wide
Development Impact Fees adopted in accordance with Government
Code Sections 66000, et sea., and provided that appropriate
credits are provided for fee - financed facilities that have been
or will be provided by Developer or the Project through other
means.
8.4 Life of Subdivision or Parcel Maps. Pursuant to
Government Code Section 66452.6(a), the term of any subdivision
map or parcel map approved with respect to the Project will be
extended for the term of this Agreement.
8.5 State and Federal Laws.
a) If state or federal laws or regulations
enacted after the Effective date hereof, prevent or preclude
compliance with one or more of the provisions of this Agreement,
such provisions of this Agreement will be modified or suspended
as may be necessary to comply with such state of federal laws or
regulations; provided, however that this Agreement will remain
in full force and effect to the extent it is not inconsistent
with such state or federal laws or regulations and subject to
the following provisions: If state or federal laws or
994094. 115-010 -13- Development Agreement
11- 17- 92/1763H(Org:1300H)
regulations enacted after the Effective Date or the action or
inaction of any other governmental jurisdiction prevents or
precludes compliance with one or more provisions of this
Agreement or requires changes in plans, maps or permits approved
by City (including a court decision affecting the validity of
development agreements pursuant to Government Code Sections
65864, et sea.), the parties shall: (1) provide the other party
with written notice of such state or federal restriction,
provide a copy of such regulation or policy and a statement of
conflict with the provisions of this Agreement; and (2) promptly
meet and confer with the other party in good faith and
reasonably attempt to modify or toll this Agreement to comply
with such federal or state law or regulation in a manner
consistent with the intent and objectives of the Agreement, to
the extent feasible.
b) Thereafter, regardless of whether the parties
reach agreement on the effect of such federal or state law or
regulation upon this Agreement, the matter shall be scheduled
for hearing before the City Council. Ten (10) days written
notice of such hearing shall be provided to Developer. The City
Counsel, at such hearing, shall determine the exact modification
or tolling which is required by such federal or state law or
regulation. Developer, at the hearing, shall have the right to
offer testimony. Any modification or tolling shall be taken by
the affirmative vote of not less than a majority of the
authorized voting members of the City Council. Any suspension
or modification may be subject to judicial review in conformance
with this Agreement. Notwithstanding the above, this Agreement
is deemed to be a valid and legitimate exercise by City of its
police power to provide for future public improvements and
facilities for the benefit of the health, safety and welfare of
City and its residents.
c) If City determines to modify or toll the
Agreement, City shall provide Developer with written notice of
its decision. Within ten (10) days following written notice of
Developer of City's determination of any modification or
decision to toll, or any final judgment of a court reviewing any
modification or tolling of the Agreement, Developer shall have
the right to terminate the Agreement by providing City with
notice of such intent to terminate. Developer's termination
under this Section 8.5 shall not affect Developer's obligations
with respect to any term or provision Developer was required to
perform prior to City's notice of its intent to modify or toll
the Agreement. The Developer's termination of this Agreement
shall not affect any right or duty created by and then - existing
City entitlement or approval with respect to the Project, but
the rights and obligations of the parties hereunder shall
otherwise cease as of the date of such termination.
8.6 Unforeseen Circumstances. If, as a result of
facts, events or circumstances presently unknown, unforeseeable
and which could not have been known to the parties to this
Agreement, City determines that the health and safety of City
requires the modification, suspension or termination of this
Agreement, City shall (1) notify Developer in writing of
a) City's determination, (b) the reasons for City's
determination and all facts upon which such reasons are based,
and (c) forward to Developer thirty (30 days prior to the
hearing referred to below all documents relating to such
determination and the reasons therefor; (2) notify Developer, in
writing, at least thirty (30) days prior to the date, the time
and place of the hearing; and (3) hold a hearing at which .
Developer shall have the right to offer witnesses, reports and
testimony, and further have the right to examine witnesses, City
staff or other persons; and (4) make a finding that, based upon
clear and convincing evidence, it has been established that:
a) the circumstances were unknown, unforeseeable and could not
have been known; (b) the health and safety of the community
994094. 115.010 -3.4- Development Agreement
11-17- 92/1763H(Org:1300H)
require the suspension, modification or termination of the
Agreement as opposed to any other alternative; and (c) City totheextentfeasiblehasprovidedDeveloperwithanequitable
program to reimburse the Developer for unused fees, and provide
equitable reimbursement for dedications and improvements not
required by the extent of development as of the date of such
suspension, modification or termination. If the City CouncilshouldfailtomakesuchfindingsthenthisAgreementshallnot
be so terminated, modified or suspended; and if the City Council
should make such findings, Developer shall have the right to
file an action in the Superior Court, County of Riverside,
challenging such findings. The Superior Court shall utilize the
standard of review applicable in cases involving vested rights. The unforeseen circumstances, which shall cause the operation of
this provision shall not be the result of changes in federal orstatelaworregulation. In the event of changes in federal orstatelaworregulation, the provisions of Section 8.5 shall
govern.
8.6.1 If, following City determination to modifytheAgreement, Developer shall have the right, within ten (10)
days of City notification of its intent to Developer to modifytheAgreementinwriting, or within ten (10) days of any finaljudgmentintheeventofjudicialreviewofanymodificationorsuspension, to terminate the Agreement, Developer's termination
under Section 8.6 shall not affect Developer's obligations with
respect to any term or provision Developer was required to
perform prior to any unforeseen circumstance which is the basisforCityaction. The unforeseen circumstances which will cause
the operation of this provision shall not be the result of
changes in federal or state law or regulation. In the event of
changes in .federal or state law or regulation, the provisions ofSection8.5 shall govern.
8.6.2 Developer shall have the right to file an
action in Superior Court, County of Riverside, challenging.anyfindingstheCityshallmakeoractiontakenwithrespecttoan
unforeseen circumstance pursuant to Section 8.6 hereinabove.
The Riverside County Superior Court shall utilize the standards
of review applicable in cases involving vested rights in ajudicialreview.
COOPERATION AND COVENANT OF FURTHER ASSURANCES
9.1 Third Party Actions. The Developer and the City
will cooperate in defending any action instituted by any third
party challenging the validity of any provision of this
Agreement or any action taken or decision made hereunder.
Developer agrees to assume the lead role in defense of any such
action or proceeding so as to minimize litigation expenses
incurred by the City. In addition, any action instituted by anythirdpartychallengingthisAgreementoranyotherpermitor
approval required from the City or any other governmental
entity, for the Development of all or any portion of the
Project, will constitute a permitted delay under Section 10.
Notwithstanding the foregoing, the filing, of any third party
action against the City and /or the Developer with respect to
this Agreement or any provision hereof, will not be a reason to
delay or stop the Development of the Project (including, without
limitation, the processing of any application of the Developer
with respect to the Development, the issuance of any building
permit or the issuance of any certificate of occupancy) unless
the third party obtains a court order preventing such activity.
The City will not stipulate to the issuance of any such courtorder.
9.2 Further Assurances. Each party covenants on behalf
of itself and its successors and assigns to take all actions and
do all things, and to execute with acknowledgments or affidavits
994094.115 -010
Deve(opwt Agrewmt11- 17- 92/1763H(Org:1300H)
if requires, 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.
9.3 Processing. Subject to the provisions of this
Section, upon satisfactory completion by the Developer of all
required preliminary actions and payment of all appropriate
filing and processing fees, if any, the City shall, in
accordance with the Existing Land Use Regulations, diligently
commence and proceed to complete all steps required or necessary
for the implementation of this Agreement and the Development of
the Project in accordance with this Agreement, and Existing Land
Use Regulations including:
9.3.1 Scheduling. Schedule, convene and conclude
all required public hearings in an expeditious manner.
9.3.2 Processing. Process and approve all maps,
plans, land use permits, building plans and specifications and
other applications for approval with respect to the Development
of the Project to the extent consistent with the Existing Land
Use Regulations and applicable provisions of state law.
The Developer will, in a timely manner, provide and /or cause its
agents to provide the City with all materials, documents,
applications, plans and other information necessary for the City
to carry out its obligations hereunder. In order to facilitate
the City's performance of its obligations pursuant to this
Agreement including, without limitation, its obligations
pursuant to this Section 9.3, at the request of the Developer,
the City will hire such additional personnel as may be necessary
to further expedite the scheduling and processing of the
Developer's applications with respect to the Project; provided,
however, that the Developer will pay the entire cost of any such
additional personnel and any such additional personnel will be
assigned exclusively to the Project.
9.4 Other Governmental Permits. The Developer will
apply in a timely manner for such other permits and approvals as
are required by other governmental agencies having jurisdiction
over the Project or the development of, or provision of services
to, the Project. The City will cooperate with the Developer in
its efforts to obtain such permits and approvals. In addition,
the City will use its best efforts to assist the Developer in
coordinating the implementation of the Project with such other
governmental agencies. If City's execution of a document or
agreement is necessary or required by law to obtain or give
effect to any such permit or approval, then City will execute
such document or agreement.
9.5 Financing of Public Facilities and /or Services. At
Developer's request, the City and the Developer will in good
faith use their best efforts to establish one or more community
facilities districts, assessment districts, improvement
districts, acquisition districts or other public financing
mechanisms including, without limitation, one or more community
facilities districts pursuant to the Mello -Roos Community
Facilities Act of 1982, as set forth in Government Code Section
53311 St et sea., for the purpose of financing the planning,
design, construction and acquisition of public facilities,
including related fees and the acquisition of land therefor,
required by the Project, to the maximum extent legally and
financially feasible. In establishing one or more community
facilities districts for the foregoing purposes, the Developer
specifically agrees to use diligent, good faith efforts to
include the Community Park Improvements on the list of
improvements to be financed by such community facilities
districts, as may be permitted by law, up to the amount of
994094 -115 -010 -16- Development Aprewwt
11- 17- 92/1763H(org:1300H)
1,500,000. The parties expect that bonds, assessments, liens
or other such financing mechanisms will be issued or levied to
provide sufficient funds for the foregoing purposes. City'and
the Developer agree that, without the consent of the City, the
portion of average appraised real property values of developed
product in the Project allocated to real property taxes and
aggregate public debt service may go up to but will not exceed
two percent (2%-) of the average appraised real property values
of developed product in the Project, and the City will take no
action to limit such allocation to less than two percent (M of
the average appraised real property values of developed product
in the Project. Although the parties will in good faith use
their best efforts to maximize the extent that structures,
improvements and facilities comprising the Project will be
financed through the use of such public financing mechanisms,
the parties acknowledge that it may not be legally or
financially feasible to finance all of such structures,
improvements and facilities through the use of such public
financing mechanisms. Therefore, to the extent that the public
improvements or public services required by the City with
respect to the Project are in excess of the needs and demands of
the Project and will be utilized by other existing or future
developments, the City will use its best efforts to cause such
existing or future developments to contribute to the costs of
such public improvements and public services (including, without
limitation, by participating in one or more community facilities
districts, assessment districts, improvement districts,
maintenance districts or other similar public financing
mechanisms or by City establishment of facilities fee programs)
and, from the funds which are generated by such public financing
mechanisms, cause appropriate reimbursement, including interest
at the legal rate, to be made to the Developer. The City
acknowledges that completion of proceedings to establish one or
more of such public financing mechanisms is critical to provide
the parties with security for the performance by the Developer
of its obligation to cause the Development of the Project to
occur. The Developer understands that the City has formed a
joint powers authority under the Marks -Roos Local Bond Pooling
Act of 1985 known as the Lake Elsinore Public Financing
Authority, and that City policy requires all public financing
within the City to be funded through the Authority, provided
that the City policy shall not preclude the formation of
community facilities districts by the school district or water
district having jurisdiction in the Project.
9.6 Utilities Coordination. The City will use its best
efforts to assist the Developer in obtaining all electrical,
gas, telephone, cable television and other necessary utility
connections required for the Project. Within a reasonable time
after request therefor by the Developer, the City will approve
all connection and access points for such utilities, if they are
in compliance with the Existing Land Use Regulations.
9.7 Covenant of Good Faith and Fair 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
addit ,lon, each party will do everything which this Agreement
describes that such party will do.
9.8 Stephens' Kangaroo Rat. Any portion of the Project
whose development is exempt from Section 9 of the ESA under the
terms of Section 7 of the Endangered Species Act ( "ESA") upon
issuance of a grading permit shall not be subject to the
Stephens' Kangaroo Rat Mitigation Fee Ordinance (Ord. 905,
Section 1, 1990). As to any portion of the Project whose
development is not exempt, the City will use its best efforts to
maximize the amount of acreage which is released for grading and
994094 -115 -010 -17- Development Agreement
11- 17- 92/1763H(Org:1300H)
allocated to the City pursuant to the Riverside County Short
Term Habitat Conservation Plan for the Stephens' Kangaroo Rat
and will take such steps as may be necessary or appropriate from
time to time, to secure such maximum allocation. Any assessment
of fees under the above referenced fee ordinance shall be
calculated based on the number of acres to be graded under the
then - approved grading plan.
9.9 City Acquisition of Rights -of -Way. In any instance
where Developer is required to construct any public facilities
on lands not owned by Developer, as a condition precedent to the
performance of such obligation, City shall provide or cause to
be provided the real property rights and interests necessary for
the construction of such public facilities. Developer shall
participate in any applicable fair share allocation of the cost
of acquiring such rights or interests. If the City is unable or
unwilling to provide the real property rights and interests
necessary for the construction of such public facilities, the
Developer shall be entitled to relief from such condition in the
manner provided for by law.
10. PERMITTED DELAYS
The Developer will be excused from performance of its
obligations hereunder during any period of delay caused by
casualties; acts of God; civil commotion; war; insurrection;
riots; strikes; walkouts; picketing or other labor disputes;
unavoidable shortages of materials or supplies; damages to work
in progress by reason of fire, flood, earthquake or other
casualty; litigation which prohibits or delays any aspect of the
processing or Development of the Project; initiatives or
referenda; moratoria; unanticipated restrictions imposed or
mandated by governmental entities; or enactment of conflicting
City, County, State or Federal laws or regulations or judicial
decisions or any other cause which is not within the reasonable
control of the Developer. Each party will promptly notify the
other party of any delay hereunder as soon as possible after the
same has been ascertained, and the term of this Agreement will
be extended by the period of any such delay. Notwithstanding
Section 13.3, any claim for delay must be presented within 30
days of knowledge of the caused of such delay or any entitlement
to time extension will be deemed waived.
11. ESTOPPEL CERTIFICATES
Either party may at any time, and from time to time,
deliver written notice to the other party, requesting that the
other party certify in writing to the knowledge of the
certifying party that: (a) this Agreement is in full force and
effect and is a binding obligation of the certifying party;
b) this Agreement has not been amended or modified, except as
expressly identified; and (c) no default in the performance of
the requesting 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.
12. RECORDATION BY CITY CLERK
Pursuant to Government Code Section 65868.5, within 10
days after execution of this Agreement by the City, the City
Clerk will record a copy in the Records of the Riverside County
Recorder.
994094 -115 -010 -18- Devetopn t Agreement
11- 17- 92/1763H(Org:1300H)
13. DEFAULT AND REMEDIES
13.1 Events of Default. Subject to any written
extension of time by mutual consent of the parties, and subject
to the provisions of Section 10 regarding permitted delays, the
uncured failure of either party to perform any material term or
provision of this Agreement will constitute a default if such
defaulting party does not cure such failure within thirty (30)
days following receipt of written notice of default from the
other party; provided, however, that if the nature of the
failure of performance is such that it cannot be cured within
such period, then the diligent prosecution to completion of the
cure will be deemed to be a cure within such period. Any notice
of default given hereunder will specify in detail the nature of
the alleged default and the manner in which such default may be
satisfactorily cured in accordance with this Agreement. During
the time period herein specified for the cure of failure of
performance, the party charged with such failure of performance
will not be considered to be in default for purposes of
termination of this Agreement or for purposes of institution of
legal proceedings with respect thereto and, if the Developer is
the party that has failed to perform, then the City will not be
excused from its performance under this Agreement during that
period.
13.2 Termination.
a) After proper notice, appropriate City
administrative review, if any, and expiration of the time for
cure, the noticing party to this Agreement, at its option, may
institute legal proceedings pursuant to Section 13.6
Institution of Legal Action) hereof or give notice of intent to
terminate this Agreement pursuant to Government Code
Section 65868. Following notice of intent to terminate, the
matter shall then be scheduled for consideration and review in
the manner set forth in Government Code Sections 65865, 65867
and 65868 by the City Council within thirty (30) days. The City
Council shall utilize the standard of review applicable to cases
involving vested rights.
b) If the City Council finds a default on the
basis of evidence presented before it, the non - defaulting party
may, at its option, give written notice of termination of this
Agreement to the party found to be in default. The party found
to be in default may seek judicial review of the City Council
decision by filing an action in the Superior Court of Riverside
County. The Superior Court shall utilize the standard of review
applicable in cases involving vested rights.
13.3 Default by City. If City does not accept, review,
approve and issue requested development permits or entitlements,
or City otherwise defaults on this Agreement, or City otherwise
fails to comply with any term or provision of this Agreement,
then City shall be in default. City agrees that Developer in no
event shall be obligated to proceed with or complete the Project
or any phase thereof nor shall resulting delays in Developer's
performance constitute grounds for termination or cancellation
of this Agreement.
13.4 No Waiver. The failure by a party to insist on the
strict performance of any of the provisions of this Agreement by
the other party will not constitute a waiver of such party's
right to demand strict performance by such other party in the
future. All waivers must be in writing to be effective or
binding on the waiving party and no waiver will be implied from
any omission by a party to take action. No express written
waiver of any default will affect any other default or cover any
other period of time except that specified in such express
waiver.
994094- 115 -010 _19- Development Agreement
11- 17- 92/1763H(Org:1300H)
13.5 Effect of Termination. Termination of this
Agreement by one party due to the default of the other party
will not affect any right or duty created by any then existing
Development Approvals with respect to the Project, but the
rights and obligations of the parties hereunder shall otherwise
cease as of the date of such termination.
13.6 Institution of Legal Action. In addition to any
other rights or remedies, either party may institute legal'
action to cure, correct or remedy any uncured default, to
enforce any covenants or agreements herein, to enjoin any
threatened or attempted violation thereof or to obtain any
remedies consistent with the purpose of this Agreement. In the
event of any such legal action involving or arising out of this
Agreement, the prevailing party will be entitled to recover from
the losing party, reasonable litigation expenses, attorneys'
fees and costs incurred. The parties acknowledge that if a
breach of this Agreement by the City occurs, irreparable harm is
likely to occur to the Developer and damages may be an
inadequate remedy. Therefore, to the extent permitted by law,
the parties agree that specific enforcement of this Agreement by
the Developer is an appropriate and available remedy, in
addition to any and all other remedies which may available to
the Developer under law or at equity.
14. CONSISTENCY FINDING
By approving and executing this Agreement, the City finds
that its provisions are consistent with the City's General Plan
and with the Specific Plan, and the City further finds and
determines that execution of this Agreement is in the best
interests of the public health, safety and general welfare of
the City's present and future residents, property owners and
taxpayers.
15. CONSENT OF OTHER PARTIES
The Developer may, at its discretion, elect to have other
holders of legal, equitable or beneficial interest in the
Project, the Property or parts thereof, acknowledge and consent
to the execution and recordation of this Agreement by executing
an appropriate instrument therefor. It is understood by the
parties that the execution of such document by other holders of
legal, equitable or beneficial interests in the Project is not a
condition precedent to this Agreement.
16. ASSIGNMENT AND RELEASE
16.1 Transfer and Assignments of Rights and Interests.
16.1.1 Rights and Interests Appurtenant. The rights
and interests conveyed and provided herein to Developer benefit
and are appurtenant to the Property. Developer has the right
to sell, assign and transfer any and all of its rights and
interests and to delegate any and all of its duties and
obligations hereunder; provided, however, that such rights and
interests may not be transferred or assigned except in strict
compliance with the following.conditions precedent;
i) Said rights and interests
transferred or assigned only together with and
of the transfer and assignment of the portions
to which they relate, including any transfer o
pursuant to any foreclosure of a Mortgage or a
such foreclosure; and
994094 -115 -010 - 2 Q -
11-17- 92/1763H(org :1300X)
may be
as an incident
of the Property
r assignment
deed in lieu of
Development Agreement
ii) Concurrent with any such assignment or
transfer or within five (5) business days thereafter, Developer
shall notify City in writing of such assignment or transfer,
the portions of the Property to which the assignment or
transfer is appurtenant, and the name and address (for purposes
of notices hereunder) of the transferee or assignee, together
with the corresponding number of dwelling units which are
included within such transfer and Developer and the assignee or
transferee shall notify City whether the assignee or transferee
has assumed any of Developer's obligations under this Agreement
and which of Developer's obligations have been assumed.
Any attempt to assign or transfer any right or
interest in this Agreement except in strict compliance with
this Section 16, shall be null and void and of no force and
effect.
City shall have no duty or obligation of any kind
or nature to maintain a record of such transfers or assignments
or portions of the Property or numbers and allocations of units
involved or to notify or advise prospective or actual assignees
or transferees or others of such assignments or the resulting
allocation of units with respect to the Property or under this
Agreement.
Notwithstanding any other provisions of this
Agreement, if the City defaults under this Agreement prior to
the time of assignment or transfer and Developer has delivered
to City a written notice of the City's default pursuant to
Section 13 prior to the time of assignment or transfer and
includes a reference to such notice of default in the written
notice of assignment or transfer required by this paragraph,
then the transferee or assignee shall have all remedies
provided in this Agreement, at law, or in equity, in connection
with such default by the City. If the City defaults under this
Agreement prior to the time of assignment or transfer and
Developer has not delivered to City a written notice of such
City default pursuant to Section 13 prior to the time of
assignment or transfer and /or assignment or transfer required
by this paragraph, then the transferee or assignee shall have
all remedies provided in this Agreement, at law, or in equity,
except the remedy of damages, in connection with such default
by the City.
16.1.2 Allocation of Density. It is acknowledged
that the density of development provided by the Specific Plan
may be distributed by Developer disproportionately throughout
the Property in accordance with and subject to the Existing
Land Use Regulations. City shall not be obligated to the
successors of Developer to advise or notify any such successor
or any other person as to the density of development allowed
under this Agreement or any of the Land Use Regulations with
respect to any particular portion of the Property; provided,
however, that City shall upon the request of Developer enter
into further agreements in a recordable form allocating to the
various portions of the Property the then allowable density of
units pursuant to the Specific Plan. Such an agreement may
include provisions relating to the assumption of certain of
Developer's obligations hereunder and the allocation of the
benefits and burdens of this Agreement, all as specifically
provided in this Section 16. The reasonable costs and expenses
of City in considering and responding to any request shall be
reimbursed to City by Developer forthwith upon the request of
City.
16.1.3 Subject to Terms of Agreement. Following
any such assignment or transfer of any of the rights and
interests of Developer under this Agreement, the exercise, use
and enjoyment thereof shall continue to be subject to the terms
994094- 115 -010 -21- Development Agreement
11-17- 92/1763H(org:1300H)
of this Agreement to the same extent as if the assignee or
transferee were Developer. Without limiting the generality of
the foregoing,
i) the further assignment or transfer of any
of the rights or interests under this Agreement shall be made
only in accordance with and subject to the terms of this
Section 16.1, and
ii) the right and interests assigned or
transferred are subject to termination in accordance with this
Agreement.
Notwithstanding the foregoing, any assignee or
transferee of any of the rights and interests of Developer
shall take said rights and interests subject to this Agreement
and shall have no duty or obligation to perform Developer's
obligations or other affirmative covenants of Developer under
this Agreement unless such obligations and covenants are
expressly assumed in connection with the conveyance of said
rights and interests.
16.1.4 Release of Developer. Notwithstanding the
assignment or transfer of portions or all of the Property or
rights or interests under this Agreement, Developer shall
continue to be obligated under this Agreement unless released
or partially released by City with respect to Developer's
obligations under this Agreement, pursuant to this
Section 16.1.4, which release or partial release shall be
provided by City upon the full satisfaction by Developer of the
following conditions:
i) Developer is not then in default under
this Agreement;
ii) Developer has provided City with the
written notice required under Section 16.1.1; and
iii) Such assignee or transferee has assumed
such duties and obligations as to which Developer is requesting
to be released and has provided City with security and other
assurances equivalent to those which were provided by Developer
assuring City that Developer's obligations and the other duties
and obligations of Developer under this Agreement for which
Developer is being released will be fully and strictly
performed as provided in this Agreement.
16.2 Releases Upon Partial or Total Completion of
Project. The City hereby covenants and agrees that upon
completion of the public improvements which are included within
the Project and payment of all fees required under this
Agreement with respect to the Property or any portion thereof,
the City will execute and deliver to the Riverside County
Recorder, an appropriate release of the Developer, the Property
affected or a portion thereof and the Project from further
obligations under this Agreement, in form and substance
acceptable to the Riverside County Recorder, or as may
otherwise be necessary to effect such release.
16.3 Releases Upon Sale or Lease to tha Public.
Notwithstanding any provisions of this Agreement to the
contrary, the burdens of this Agreement shall terminate as to
any lot which has been finally subdivided and individually (and
not in "bulk ") leased (for a period of longer than one yeas) or
sold to the purchaser or user thereof (including but not
limited to any school district taking title to-land within the
Project for school purposes) and thereupon and without the
execution or recordation of any further document or instrument
such lot shall be released from and no longer be subject to or
994094 -115 -010 -22- Development Agreement
11.17-92/1763H(Drg:1300H)
burdened by the provisions of this Agreement; provided, however
that the benefits of this Agreement shall continue to run as to
any such lot until a building is constructed on such lot, or
until the termination of this Agreement, if earlier, at which
time this Agreement shall terminate as to such lot. City shall
execute, acknowledge and deliver releases or other documents in
form and content required by title insurers to remove the lien
of this Agreement from such properties. A release issued by
the City in accordance with this Section shall act as a
conclusive determination that the obligations of Developer
pursuant to this Agreement have been met with respect to the
portion of the Property so released.
17. ENCUMBRANCES ON REAL PROPERTY: MORTGAGEE PROTECTION
17.1. Discretion to Encumber. The parties agree that
this Agreement will not prevent or limit the Developer in any
manner, at the Developer's sole discretion, from encumbering
the Property, or any part of the same including, without
limitation, improvement thereon, by any Mortgage, or other
security device. The City acknowledges that the lenders
providing such financing may require certain modifications and
the City agrees, upon request from time to time, to meet with
the Developer and /or the representatives of such lenders to
negotiate in good faith regarding any such request for
modification. The City further agrees that it will not
unreasonably withhold its consent to any such requested
modification so long as the modifications do not materially
alter this Agreement to the detriment of the City.
17.2 Mortgagee Protection. This Agreement shall be
superior and senior to any lien placed upon the Property, or
any portion thereof, including the lien of any Mortgage.
Notwithstanding the foregoing, no breach hereof shall defeat,
render invalid, diminish or impair the lien of any Mortgage
made in good faith and for value and any acquisition or
acceptance of title or any right or interest in or with respect
to the Property or any portion thereof, by a Mortgagee (whether
under or pursuant to a Mortgage, foreclosure, trustee's sale,
deed in lieu of foreclosure, or otherwise), shall be subject to
all of the terms and conditions contained in this Agreement.
17.3 Mortgagee Not Obligated. Notwithstanding the
provisions of Section 17.1 above, no Mortgagee shall have an
obligation or duty under this Agreement to perform Owner's
Obligations or other affirmative covenants of Developer
hereunder, or to guarantee such performance; except that to the
extent that any covenant to be performed by Developer is a
condition to the performance of a covenant by City, the
performance thereof shall continue to be a condition precedent
to City's performance hereunder.
17.4 Notice of Default to Mortgagee: Right of Mortgagee
to Cure. If City receives notice from a Mortgagee requesting a
copy of any notice of default given Developer hereunder and
specifying the address for service thereof, and records a copy
of each request in the official records of City in the manner
required under Civil Code Section 2924b with respect to
Requests for Notices of Default, then City shall deliver to
such Mortgagee, concurrently with service thereon to Developer,
any notice given to Developer with respect to any claim by City
that Developer has not complied in good faith with the terms of
this Agreement or has committed an event of default. Each
Mortgagee shall have the right (but not the obligation) for a
period of ninety (90) days after the receipt of such notice
from City to cure or remedy, or to commence to cure or remedy,
the claim of default or noncompliance set forth in the City's
notice. If the default is of a nature which can only be
994094 -115 -010 -23- Develop wt Agrewmt
11- 17- 92/1763H(Org:1300H)
remedied or cured by such Mortgagee upon obtaining possession,
such Mortgagee shall seek to obtain possession with diligence
and continuity through foreclosure, a receiver or otherwise,
and shall thereafter remedy or cure the default or
noncompliance within thirty (30) days after obtaining
possession. If any such default or noncompliance cannot, with
diligence, be remedied or cured within such thirty (30) day
period, then such Mortgagee shall have such additional timq as
may be reasonably necessary to remedy or cure such default or
noncompliance if such Mortgagee commences cure during such
thirty (30) day period, and thereafter diligently pursues and
completes such cure.
17.5 Bankruptcy. Notwithstanding the foregoing
provisions of this Section 17, if any Mortgagee is prohibited
from commencing or prosecuting foreclosure or other appropriate
proceedings in the nature thereof by any process or injunction
issued by any court or by reason of any action by any court
having jurisdiction of any bankruptcy or insolvency proceeding
involving Developer, the times specified in Section 17.4 for
commencing or prosecuting foreclosure or any proceedings shall
be extended for the period of the prohibition, provided that
such Mortgagee is proceeding expeditiously to terminate such
prohibition and in no event for a period longer than one year.
s_ 21
18.1 Hold Harmless. The.Developer agrees to and will
hold the City, its officers, agents, employees and
representatives harmless from liability for damage or claims
for damage for personal injury, including death and claims for
property damage which may arise out of the direct or indirect
operations of the Developer with respect to the Project, to the
extent of the insurance described below. To the same extent,
the Developer agrees to and will defend the City and its
officers, agents, employees and representatives from actions
for damages caused by or alleged to have been caused by reason
of the Developer's activities with respect to the Project.
This "hold harmless" agreement applies to all
damages and claims for damages suffered or alleged to have been
suffered by reason of the operations referred to in this
Section.
Before beginning work on the Project, the
Developer will obtain the insurance required under this Section
and receive the approval of the City Attorney as to form,
content, amount and carrier and the Developer will maintain
such insurance throughout the term of this Agreement. The
insurance will extend to the City, its elective and appointive
boards, commissions, officers, agents, employees and
representatives and to the Developer. In addition, the
Developer will furnish to the City, before beginning work on
the Project, a certificate of insurance constituting
satisfactory evidence of the insurance required and providing
that each carrier is required to give the City at least ten
10) days prior written notice by certified mail to the City
Hall, of the cancellation or reduction in coverage of any
insurance.
18.1.1 Compensation Insurance. The Developer
will maintain Workers Compensation Insurance for all persons
employed by the Developer at the site of the Project. The
Developer will require each contractor and subcontractor to
provide Workers Compensation Insurance for their respective
employees. The Developer agrees to indemnify the City for
damages resulting from the failure of the Developer to take out
and maintain such insurance.
994094 -115 -010 -24- Development Agreement
11- 17- 92/1763H(Org:1300H)
18.1.2 Public Liability and Property Damage
Insurance. The Developer will maintain public liability
insurance in an amount not less than $1,000,000.00 for injuries
including death) to any one person and in an amount not less
than $5,000,000.00 on account of any one occurrence; and
property damage of each covered person on account of any one
occurrence.
19. GENERAL PROVISIONS
19.1 Development Exactions. Nothing in this Agreement
is intended to limit the application of Government Code Section
66000 et sea. to any Development Exactions.
19.2 Recitals. The Recitals in this Agreement are
material and are incorporated herein by reference as though
fully set forth herein.
19.3 Exhibits. Any Exhibit to this Agreement is
incorporated herein by reference as through fully set forth
herein.
19.4 Applicable Law. This Agreement will be construed
and enforced in accordance with the laws of the State of
California.
19.5 No Joint Venture. Partnership or Third Party
Beneficiary. The City and the Developer hereby renounce the
existence of any form of joint venture or partnership between
them and expressly agree that nothing contained herein or in
any document executed in connection herewith will be construed
as making the City and the Developer joint venturers or
partners. It is understood that the contractual relationship
between the City and the Developer is such that the Developer
is an independent contractor and not an agent of the City.
Furthermore, this Agreement is not intended or construed to
create any third party beneficiary rights in any person who is
not a party to this Agreement.
19.6 Notices. Any notice or other communication to
either party under this Agreement must be in writing and must
be given by delivering the same to such party in person or by
sending the same by certified or registered mail, return
receipt requested, or by overnight mail delivery service, with
all costs prepaid, to the following addresses:
City:
City of Lake Elsinore
130 South Main Street
Lake Elsinore, CA 92330
Attn: City Manager
With a Copy To:
John Harper, Esq.
Brown, Harper, Burns & Hentschke
453 South Glassell
Orange, CA 92666
Developer:
Murdock Alberhill Ranch Limited
c/o Murdock Development Company
10900 Wilshire Boulevard, Suite
Los Angeles, California 90024
Attn: Ms. Ilene Miles
994094- 115 -010
11- 17.92/1763H(Org:1300H)
25-
Partnership
1600
Oeve(apment Agreement
With a Copy To:
Jones, Day, Reavis & Pogue
555 West Fifth Street
Suite 4600
Los Angeles, California 90013 -1025
Attn: Real Estate Department (JSS)
19.7 Severability. If any term, provision, covenant or
condition of this Agreement is determined to be invalid, void
or unenforceable by judgment or court order, then the remainder
of this Agreement will remain in full force and effect, unless
enforcement of this Agreement, as so invalidated, would be
unreasonable or grossly inequitable under all the circumstances
or would frustrate the stated purpose of this Agreement.
19.8 Entire Agreement. This Agreement contains all the
representations and constitutes the entire agreement between
the City and the Developer. Any prior correspondence,
memoranda, agreements, warranties or representations are
superseded in total by this Agreement.
19.9 Signature Pages: Counterparts. 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.
19.10 Time. Time is of the essence of this Agreement
and of each and every term and condition hereof.
19.11 Captions. Titles and captions of the various
sections of this Agreement are intended for convenience only
and shall not in any way affect the meaning or construction of
any provision of this Agreement.
19.12 Construction. Number and Gender. This Agreement
will be construed as a whole according to its common meaning
and not strictly for or against either party in order to
achieve the objectives and purposes of the parties hereunder.
Whenever requires 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.
CITY
CITY OF LAKE ELSINORE, a municipal
corporation and political
subdivio ion of the State of
By:
AT ST: AT
City Clerk
994094 -115 -010 -26- Develop"ent Agrecnent
11- 17.92/1763H(Org:1300H)
DEVELOPER
Murdock Alberhill Ranch, Limited
Partnership, a California limited
partnership
By: Murdock Properties, Inc., a
California corporation, /J
General Partne
STATE OF CALIFORNIA )
ss.
COUNTY OF RIVERSIDE )
3
On anunr Ll 199 , before me, V iCA, f asaA
personally a ar,n rti M- Wo. -Aib -r , personally known
to me (or proved to me on a basis of satisfactory evidence) to
be the person whose name is subscribed to the within instrument
and acknowledged to me that he executed the same in his
authorized capacity as the Mayor of the City of Lake Elsinore,
California, and that by his signature on the instrument the
person, or the entity upon behalf of which the person acted,
executed the instrument.
Notary Public
SEAL:
i/ 1996
STATE OF CALIFORNIA
ss.
COUNTY OF '
f Cl I2L On it'r'S' +'f. 17 1992, before me, i ,
personally appeared VYlur ,,;.` , personally known
to me (or proved to me on the basis of satisfactory evidence) to
be the 'L`r` tC °r.f of Murdock Properties, Inc., a
California corporation, the corporation that executed the within
instrument and personally known to me (or proved to me on the
basis of satisfactory evidence) to be the persons who executed
the within instrument on behalf of said corporation, said
corporation being personally known to me to be one of the
partners of Murdock Alberhill Ranch Limited Partnership, a
California limited partnership, the partnership that executed
the within instrument, and acknowledged to me that such
corporation executed the same as such partner an that such
partnership executed the same.
I
Notary Public
SEAL:
I\
994094- 115 -010 -28- Development Agreement
11- 17.92/1763H(Org:1300H)
OF r-IC kt rvJTARV SEAL
S PF.RR4 L HUW D
NI Pui.ir. Ca6fcmia
LO S.4NGELES (:OUNYY
MY Comm. EzFa:as JUL 07,4995
994094- 115 -010 -28- Development Agreement
11- 17.92/1763H(Org:1300H)
EXHIBIT "A"
Legal Description of the Property
EXHIBIT "A"