HomeMy WebLinkAboutItem No. 12 - Second Reading of an Ordinance Approving Two Development Agreements TTM 31370 Tuscany Hills Specific Plan12)Second Reading of an Ordinance Approving Two Development Agreements on the
Approximately 368-acre Subdivision Within Tentative Tract Map No. 31370 Located
Within the Tuscany Hills Specific Plan
Adopt by title only and waive further reading of AN ORDINANCE OF THE CITY COUNCIL
OF THE CITY OF LAKE ELSINORE, CALIFORNIA, APPROVING DEVELOPMENT
AGREEMENT NOS. 2024-01 (T.T. GROUP INC.) AND 2024-02 (CANADIAN PACIFIC
LAND, LLC AND STRACK FARMS LAND, LLC) FOR THE APPROXIMATELY 368-ACRE
SUBDIVISION PREVIOUSLY APPROVED UNDER TENTATIVE TRACT MAP NO. 31370
LOCATED WITHIN THE TUSCANY HILLS SPECIFIC PLAN
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REPORT TO CITY COUNCIL
To:Honorable Mayor and Members of the City Council
From:Jason Simpson, City Manager
Prepared by:Candice Alvarez, MMC, City Clerk
Date:May 28, 2024
Subject:Second Reading of an Ordinance Approving Two Development
Agreements on the Approximately 368-acre Subdivision Within Tentative
Tract Map No. 31370 Located Within the Tuscany Hills Specific Plan
Recommendation
Adopt by title only and waive further reading of AN ORDINANCE OF THE CITY COUNCIL OF
THE CITY OF LAKE ELSINORE, CALIFORNIA, APPROVING DEVELOPMENT AGREEMENT
NOS. 2024-01 (T.T. GROUP INC.) AND 2024-02 (CANADIAN PACIFIC LAND, LLC AND
STRACK FARMS LAND, LLC) FOR THE APPROXIMATELY 368-ACRE SUBDIVISION
PREVIOUSLY APPROVED UNDER TENTATIVE TRACT MAP NO. 31370 LOCATED WITHIN
THE TUSCANY HILLS SPECIFIC PLAN
Background/Discussion
At its Regular meeting on May 14, 2024, the City Council introduced by title only and waived
further reading of the Ordinance.
Attachments
Attachment 1- Ordinance
Attachment 2 - TT Group Development Agreement
Attachment 3 - Canadian Pacific & Strack Farms Development Agreement
ORDINANCE NO. 2024-
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF LAKE ELSINORE,
CALIFORNIA, APPROVING DEVELOPMENT AGREEMENT NOS. 2024-01 (T.T.
GROUP INC.) AND 2024-02 (CANADIAN PACIFIC LAND, LLC AND STRACK
FARMS LAND, LLC) FOR THE APPROXIMATELY 368-ACRE SUBDIVISION
PREVIOUSLY APPROVED UNDER TENTATIVE TRACT MAP NO. 31370
LOCATED WITHIN THE TUSCANY HILLS SPECIFIC PLAN
Whereas, T.T. Group, A California corporation as to an approximately 282 acre portion of
Tentative Tract Map (TTM) 31370 and Canadian Pacific Land, LLC, a Florida limited liability
company and Strack Farms Land, LLC, a Delaware limited liability company as to the remainder
86 acre portion of TTM 31370 have requested approval of Development Agreement No. 2024-
01 and 2024-02. TTM 31370 was previously approved for the subdivision of 807 single family
residential lots, along with community and neighborhood parks, basins, lift station and open
space located in the Tuscany Hills Specific Plan in the northeast portion of the City commonly
known as North Tuscany;
Whereas, TTM 31370 covers property on the south side of Greenwald Avenue, on both
sides of the extension of Summerhill Drive north of the existing Tuscany Hills community, to the
west of Canyon Lake and to the east of Bella Vista Drive (Assessor’s Parcel Nos.: 349-280-025,
-028, -029, -038, -040, -042, -044, -048, -050 and -051; 349-290-017, -018, -026 and -027; 349-
390-001 thru -004, -015 and -016);
Whereas, pursuant to Chapter 19.12 (Development Agreements) of the Lake Elsinore
Municipal Code (LEMC) the Planning Commission (Commission) has been delegated with the
responsibility of reviewing and making a recommendation to the City Council (Council) whether
the development agreement is consistent with the City’s General Plan and whether to approve
the development agreement;
Whereas, on April 16, 2024, at a duly noticed public hearing, the Commission has
considered evidence presented by the Community Development Department and other
interested parties with respect to this item, and adopted a resolution recommending that the
Council approve Development Agreement Nos. 2024-01 and 2024-02; and
Whereas, on May 14, 2024, at a duly noticed Public Hearing, the Council has considered
the recommendation of the Commission as well as evidence presented by the Community
Development Department and other interested parties with respect to this item.
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF LAKE ELSINORE,
CALIFORNIA, DOES HEREBY RESOLVE, DETERMINE AND ORDER AS FOLLOWS:
Section 1: Pursuant to CEQA Guidelines Section 15162, the Development Agreements
would not have a significant effect on the environment and no new environmental documentation
is necessary because all potentially significant effects have been adequately analyzed in an
earlier environmental impact report. Subsequent Environmental Impact Report (SEIR) (SCH No.
2004071082) was adopted by the City Council on March 22, 2005. These Development
Agreements will not have any significant direct, indirect, or cumulative environmental impacts
apart from or beyond those already analyzed, addressed and mitigated as stated in the
environmental documentation prepared and adopted/approved for TTM 31370. All potentially
Ord. No. 2024-____
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significant impacts have been avoided or mitigated pursuant to the earlier environmental impact
report and none of the conditions in Public Resources Code Section 21166 or CEQA Guidelines
Sections 15162, 15163 and 15164 calling for preparation of a subsequent or supplemental
environmental impact report have occurred because of the following: (i) the Project does not
propose substantial changes that would require major revisions to the previously certified EIR
due to new significant environmental effects or a substantial increase in the severity of previously
identified significant environmental effects; (ii) no substantial changes in circumstances have
occurred that require major revisions to the previously certified EIR due to new significant
environmental effects or a substantial increase in the severity of previously identified significant
effects; and (iii) no new information of substantial importance as described in Section 15162
(a)(3) has been identified that shows any of the following: (a) one or more significant effects not
discussed in the EIR, (b) significant effects previously examined that are substantially more
severe than shown in the EIR, (c) mitigation measures or alternatives previously found not to be
feasible are in fact be feasible and substantially reduce one or more significant effects of the
project, but the Project proponents decline to adopt the mitigation measure or alternative, or (d)
mitigation measures or alternatives which are considerably different from those analyzed in the
EIR substantially reduce one or more significant effects on the environment, but the Project
proponents decline to adopt the mitigation measure or alternative. Therefore, no further
environmental documentation is necessary.
Section 2: That in accordance with California Planning and Zoning Law and Section
19.12.080.B of the LEMC, the Council makes the following findings regarding Development
Agreement Nos. 2024-01 and 2024-02 (collectively, the “Development Agreements”):
1. It is consistent with the objectives, policies, general land uses and programs specified in
the General Plan and any applicable specific plan;
The proposed development agreement will assist in the development of TTM 31370. TTM
31370 is located within the Tuscany Hills Specific Plan (THSP). The proposed subdivision
is compatible with the objectives, policies, general land uses and programs as identified
in the THSP. The THSP was subject to a consistency finding with the General Plan prior
to adoption. The proposed subdivision is consistent with the provisions of the THSP and
is therefore found to be consistent with the General Plan.
2. It is compatible with the uses authorized in, and the regulations prescribed for, the land
use district in which the real property is located;
The proposed Development Agreements contemplate residential development consistent
with the Tuscany Hills Specific Plan’s residential land use designation for this site.
3. It is in conformity with public convenience, general welfare and good land use practices;
The overall density and design is consistent and compatible with the adjacent
communities. Further the development of the proposed development is consistent
with the underlying General Plan and Zoning land use designations, indicative of good
land use practices.
4. It will not be detrimental to the health, safety and general welfare;
The proposed Development Agreements will facilitate the development of the
residential units. The previously approved map was found not to be detrimental to the
Ord. No. 2024-____
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health, safety and general welfare.
5. It will not adversely affect the orderly development of property or the preservation of
property values;
The proposed Development Agreements will facilitate the development of residential
units. The previously approved map was found not to adversely affect the orderly
development of property or the preservation of property values.
6. It is consistent with the provisions of Government Code Sections 65864 through
65869.5.
The proposed Development Agreements includes all mandatory provisions required
by Government Code § 65865.2 and does not include any provisions that are not
authorized by the Development Agreement Act.
Section 3: Based upon the evidence presented, the above findings, and the Conditions
of Approval imposed upon the project, the Council hereby approves Development Agreement
Nos. 2024-01 (T.T. Group Inc.) and 2024-02 (Canadian Pacific Land, LLC and Strack Farms
Land, LLC).
Section 4: Severability. If any provision of this Ordinance or its application is held
invalid by a court of competent jurisdiction, such invalidity shall not affect other provisions,
sections, or applications of the Ordinance which can be given effect without the invalid provision
or application, and to this end each phrase, section, sentence, or word is declared to be
severable.
Section 5: Effective Date. This Ordinance shall become effective at 12:01 a.m. on
the thirty-first (31st) day after the date of adoption.
Section 6: Certification. The City Clerk shall certify to the passage of this Ordinance
and shall cause a synopsis of the same to be published according to law.
Passed, Approved, and Adopted at a regular meeting of the City Council of the City of Lake
Elsinore, California, on this 28th day of May 2024.
____________________________
Steve Manos
Mayor
Attest:
Candice Alvarez, MMC
City Clerk
Ord. No. 2024-____
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STATE OF CALIFORNIA )
COUNTY OF RIVERSIDE ) ss.
CITY OF LAKE ELSINORE )
I, Candice Alvarez, MMC, City Clerk of the City of Lake Elsinore, California, do hereby certify
that Ordinance No. 2024- _____ was introduced by the City Council of the City of Lake Elsinore,
California, at its Regular meeting of May 14, 2024, and adopted at its Regular meeting of May
28, 2024, and that the same was adopted by the following vote:
AYES:
NOES:
ABSENT:
ABSTAIN:
Candice Alvarez, MMC
City Clerk
Ord. No. 2024-____
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Exhibit A
temp_B1B471.docx
RECORDING REQUESTED BY AND
WHEN RECORDED MAIL TO:
City of Lake Elsinore
130 S. Main Street
Lake Elsinore, CA 92530
Attn: City Clerk
SPACE ABOVE THIS LINE FOR RECORDER’S USE
(Exempt from Recording Fees Per Govt. Code §27383)
DEVELOPMENT AGREEMENT
BY AND BETWEEN THE
CITY OF LAKE ELSINORE AND T.T. GROUP, INC.
(TENTATIVE TRACT MAP NO. 31370)
TABLE OF CONTENTS
Page
temp_B1B471.docx -i-
1. DEFINITIONS ................................................................................................................3
2. DEVELOPMENT OF THE OWNER PROPERTY....................................................6
2.1. Uses.......................................................................................................................6
2.2. Intensity................................................................................................................6
2.3. Size........................................................................................................................6
2.4. Slopes....................................................................................................................6
2.5. Tentative Subdivision Map Extensions and Modifications.............................7
2.6. Timing of Development.......................................................................................7
3. DEVELOPMENT EXACTIONS...................................................................................7
3.1. Reservations, Dedications and Improvements; Summerhill Drive
Extension Project Rights of Way.......................................................................7
3.2. Owner’s Obligation to Pay Fees.........................................................................8
3.3. Development Agreement Fees............................................................................8
3.4. Affordable Housing Fee......................................................................................9
3.5. Participation in CFD 2015-1 and CFD 2015-2..................................................9
3.6. Financing of Public Facilities; Future CFDs..................................................10
3.7. Compliance with Laws......................................................................................11
3.8. Prevailing Wage Indemnification....................................................................11
4. VESTED RIGHTS........................................................................................................12
4.1. Development of the Owner Property...............................................................12
4.2. No New Development Impact Fees..................................................................12
4.3. Reserved Powers................................................................................................13
4.3.1. Processing Fees and Charges. ..............................................................13
4.3.2. Procedural Regulations.........................................................................13
4.3.3. Building Codes.......................................................................................13
4.3.4. Non-Conflicting Regulations................................................................13
TABLE OF CONTENTS (cont'd)
Page
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4.3.5. Certain Conflicting Regulations. .........................................................14
4.3.6. Regulations Needed to Protect the Health and Safety.......................14
4.3.7. Regulations by Other Public Agencies................................................14
4.3.8. General and Special Taxes. ..................................................................14
4.3.9. End Users...............................................................................................14
4.4. Subsequent Actions and Approvals.................................................................14
4.5. State and Federal Laws.....................................................................................15
4.6. Police Power and Taxing Power. .....................................................................15
4.7. Supersedure by Subsequent Laws...................................................................15
5. DURATION OF AGREEMENT.................................................................................16
5.1. Term...................................................................................................................16
5.2. Termination.......................................................................................................16
5.3. Effect of Termination........................................................................................16
6. PERIODIC REVIEW; OPERATING MEMORANDA; AMENDMENT. .............17
6.1. Periodic Review.................................................................................................17
6.2. Operating Memoranda.....................................................................................17
6.3 Amendment........................................................................................................17
7. COVENANT OF FURTHER ASSURANCES AND FAIR DEALING...................18
7.1. Further Assurances...........................................................................................18
7.2. Covenant of Good Faith and Fair Dealing......................................................18
8. PERMITTED DELAYS. ..............................................................................................18
9. DEFAULT......................................................................................................................18
9.1. Events of Default...............................................................................................18
9.2. Remedies. ...........................................................................................................19
9.3. Institution of Legal Action................................................................................19
9.4. No Waiver..........................................................................................................19
9.5. Right of Mortgagee To Cure............................................................................20
10. ESTOPPEL CERTIFICATES.....................................................................................20
TABLE OF CONTENTS (cont'd)
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11. INCORPORATION BY REFERENCE......................................................................20
11.1. Recitals...............................................................................................................20
11.2. Exhibits...............................................................................................................20
12. APPLICABLE LAW. ...................................................................................................20
13. NO JOINT VENTURE, PARTNERSHIP OR THIRD PARTY BENEFICIARY.20
14. ENCUMBRANCES AND RELEASES ON REAL PROPERTY.............................21
14.1. Discretion to Encumber....................................................................................21
14.2. Entitlement to Written Notice of Default........................................................21
14.3. Property Subject to Pro Rata Claims..............................................................21
15. BINDING EFFECT. .....................................................................................................21
15.1. Entirety of Owner Property.............................................................................21
15.2. Owner Property and Agreement Remain Linked..........................................21
15.3. Assignment; Notice; City Consent...................................................................22
16. TERMS AND CONSTRUCTION...............................................................................22
16.1. Severability. .......................................................................................................22
16.2. Entire Agreement..............................................................................................22
16.3. Authority; Counterpart Signature Pages........................................................23
16.4. Time....................................................................................................................23
16.5. Notices. ...............................................................................................................23
16.6. Construction, Number and Gender.................................................................24
17. INDEMNIFICATION...................................................................................................24
18. RECORDATION BY CITY CLERK..........................................................................25
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EXHIBITS
EXHIBIT A LEGAL DESCRIPTION
EXHIBIT B VICINITY MAP
EXHIBIT C EXISTING DEVELOPMENT IMPACT FEES
EXHIBIT D CONDITIONS OF APPROVAL
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DEVELOPMENT AGREEMENT
BY AND BETWEEN THE
CITY OF LAKE ELSINORE AND T.T. GROUP, INC.
(Pursuant To Government Code
Sections 65864 -65869.5)
This Development Agreement (“Agreement”) is entered into on ___________, 2024,
between T.T. Group, Inc., a California corporation (“Owner”), and the City of Lake Elsinore, a
California municipal corporation (“City”). Owner and City are sometimes singularly referred to
herein as a “Party” and are collectively referred to herein as the “Parties.”
RECITALS
A. All initially-capitalized words, terms, and phrases used, but not otherwise defined,
in the Recitals shall have the meanings assigned to them in Section 1 of this Agreement, unless the
context clearly indicates otherwise.
B. To strengthen the public planning process, encourage private participation in
comprehensive planning, and reduce the economic risk of development, the legislature of the State
of California adopted the “Development Agreement Act,” Government Code Sections 65864
through 65869.5. The Development Agreement Act authorizes the City to enter into an agreement
with any person having a legal or equitable interest in real property regarding the future
development of such property and to vest certain development rights therein.
C. Pursuant to the Development Agreement Act, the City Council adopted Ordinance
No. 996 (1995) as amended by Ordinance No. 1393 (2018) establishing procedures and
requirements for consideration of development agreements as set forth in LEMC Chapter 19.12
(collectively, the “Development Agreement Ordinance”).
D. On March 22, 2005, the City Council approved Subsequent Environmental Impact
Report (SEIR) (SCH No. 2004071082), Amendment No. 1 to the Tuscany Hills Specific Plan No.
89-3, General Plan Amendment No. 2004-05, Zone Change No. 2004-06, and TTM No. 31370,
subdividing 368 acres into 807 single family residential lots, along with community and
neighborhood parks, basins, lift station and open space located in the northeast portion of the City
commonly known as North Tuscany. On June 13, 2017, the City Council granted a six-year
discretionary extension of TTM 31370 to June 1, 2022. Subsequently, TTM 31370 was statutorily
extended by the provisions of AB 116 to June 1, 2024.
E. TTM 31370 covers property on the south side of Greenwald Avenue, on both sides
of the extension of Summerhill Drive north of the existing Tuscany Hills community, to the west
of Canyon Lake and to the east of Bella Vista Drive (Assessor’s Parcel Nos.: 349-280-025, -028,
-029, -038, -040, -042, -044, -048, -050 and -051; 349-290-017, -018, -026 and -027; 349-390-001
thru -004, -015 and -016).
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F. Owner owns a portion of the land within TTM 31370 consisting of Assessor’s
Parcel Nos.: 349-280-025, -028, -029, -038, -040, -042, -044, -048, and -051; 349-290-017, -018,
and -027; 349-390-001 thru -004, -015 and -016) with approximately 584 lots, referred to herein
as the “Owner Property”. The parcels of land comprising the Owner Property are more particularly
described in the Legal Description (Exhibit “A”) and depicted in the Vicinity Map (Exhibit “B”).
The balance of land within TTM 31370 consisting of Assessor Parcel Numbers 349-280-050 and
349-290-026 with approximately 223 lots are owned by Canadian Pacific Land, LLC, a Florida
limited liability company and Strack Farms Land, LLC, a Delaware limited liability company.
G. Development of TTM 31370 is impaired by the lack of adequate infrastructure,
particularly roadway improvements providing access to the Owner Property, including the
extension of Summerhill Drive from the southern connection at the terminus of the existing
Summerhill Drive extending northerly to Greenwald Avenue. The Parties desire to continue
discussions regarding the financing and construction of necessary infrastructure improvements and
to vest the Owner’s land use entitlements during these ongoing discussions.
H. On April 16, 2024, the City of Lake Elsinore Planning Commission held a duly
noticed public hearing to consider Owner’s application for this Agreement and recommended to
the City Council approval of this Agreement.
I. On May 14, 2024, the City Council held a duly noticed public hearing to consider
this Agreement and found and determined that this Agreement (a) is consistent with the objectives,
policies, general land uses and programs specified in the City’s General Plan and any applicable
specific plan; (b) is compatible with the uses authorized in, and the regulations prescribed for the
Owner Property and the surrounding area and will not adversely affect the orderly development of
Owner Property or the preservation of property values; (c) is in conformity with public
convenience, general welfare and good land use practices; (d) will have an overall positive effect
on the health, safety and welfare of the residents of and visitors to the City; and (e) constitutes a
lawful, present exercise of the City’s police power and authority under the Development
Agreement Act and Development Agreement Ordinance.
J. Based on the findings set forth in Recital I, the City Council entered into this
Agreement pursuant to and in compliance with the requirements of the Development Agreement
Act and the Development Agreement Ordinance; and did introduce for first reading Ordinance No.
__ (the “Enabling Ordinance”). On ________, 2024 the City Council conducted the second
reading and adoption of the Enabling Ordinance did thereby approve this Agreement.
K. The foregoing Recitals constitute a substantive part of this Agreement, and the
Parties have materially relied upon them as such in their respective determinations to execute this
Agreement.
AGREEMENT
NOW, THEREFORE, in consideration of the mutual terms, obligations, promises,
covenants and conditions contained herein and for other valuable consideration, the sufficiency of
which is hereby acknowledged, the Parties, and each of them, agree as follows:
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1. DEFINITIONS
1.1. “Agreement” means this Development Agreement, including the attached
Exhibits. The term “Agreement” shall include any Operating Memoranda and/or amendment
properly approved and executed pursuant to Section 6.2 and 6.3, respectively.
1.2. “Applicable Rules” means this Agreement, the Existing Development
Approvals, the Existing Land Use Regulations, the Existing Development Impact Fees, and the
Development Agreement Ordinance.
1.3. “Building Codes” means standard uniform codes adopted by the City
governing construction, including without limitation, the Housing Code, the Building Code, the
Energy Code, the Green Building Code, the Plumbing Code, the Electrical Code, the Mechanical
Code, and the Fire Code (including amendments thereto by the Riverside Fire Authority), as
modified and amended by official action of the City as set forth in Title 15 of the LEMC as may
be amended from time to time.
1.4. “CEQA” means the California Environmental Quality Act of 1970
(California Public Resources Code § 21000 et seq.) and the state CEQA Guidelines (California
Code of Regulations, Title 14, § 15000 et seq.).
1.5. “City” means the City of Lake Elsinore, a municipal corporation.
1.6. “City Council” means the duly elected City Council of the City.
1.7. “City Manager” means the City Manager of the City and his or her
authorized designees.
1.8. “Conditions of Approval” means the conditions imposed by the City in
connection with the approval and extension of Tentative Tract Map No. 31370, including the
mitigation measures identified in the Supplemental Environmental Impact Report (SCH No.
2004071082) and its Mitigation Monitoring Program which are collectively attached as Exhibit
“D.” Conditions of approval and any applicable mitigation measures imposed in connection with
any Subsequent Approval shall be appended to Exhibit “D” and shall prevail in the event of a
conflict with the original Conditions of Approval to the Existing Development Approvals.
1.9. “Day” refers to a calendar day, unless otherwise specified.
1.10. “Dedication” and “Dedicate” shall mean Owner’s grant of real property or
an interest therein to the City or another governmental, public agency or non-profit entity for a
public purpose, including, without limitation, dedication of right-of-way to the City for the public
rights of way together with construction, drainage and slope easements associated therewith.
1.11. “Development” means the construction and/or installation of structures,
improvements and facilities on the Owner Property as set forth in this Agreement including,
without limitation, grading, the construction of infrastructure and public facilities (whether located
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within or outside the Owner Property), the construction of buildings and the installation of
landscaping.
1.12. “Development Agreement Act” means Government Code Sections 65864
through 65869.5.
1.13. “Development Agreement Fee” is defined in Section 3.3 of this Agreement.
1.14. “Development Agreement Ordinance” means Ordinance No. 996 pursuant
to which the City has adopted procedures and requirements for considering, approving and
administering development agreements as codified in Section 19.12.005, et seq. of the LEMC and
as may be amended from time to time.
1.15. “Development Exaction” shall mean and include Development Impact
Fees, Dedications, Reservations, and any other obligation to pay money, construct facilities, or
provide land as a condition of Development or of obtaining a Development Approval.
1.16. “Development Impact Fees” means any impact fees, linkage fees, or
exactions, and other similar impact fees or charges (whether collected as a condition to issuance
of grading and/or building permits, or otherwise) imposed by the City on and in connection with
Development pursuant to Existing Land Use Regulations. Development Impact Fees do not
include (a) Processing Fees and Charges; (b) impact fees, linkage fees, exactions, assessments or
fair share charges or other similar fees or charges imposed by other governmental entities
regardless of whether the City is required to collect or assess such fees pursuant to applicable laws
(e.g., school district impact fees pursuant to Government Code Section 65995), or (c) general or
special taxes and assessments.
1.17. “Effective Date” means the date this Agreement and the Enabling
Ordinance are approved by the City Council.
1.18. “Enabling Ordinance” is defined in Recital J.
1.19. “Existing Development Approvals” means Tentative Tract Map No. 31370
and the Tuscany Hills Specific Plan No. 89-3 as amended by Amendment No. 1, and any other
entitlement relating to the Development of the Owner Property approved by the City prior to the
Effective Date in compliance with CEQA and subject to the Conditions of Approval and the City
Council’s findings and determinations with respect thereto.
1.20. “Existing Development Impact Fees” means the categories of Development
Impact Fees in effect as of the Effective Date as set forth in Exhibit “C” to be imposed on the
Development of the Owner Property during the Term in such amount as in effect at the time such
Development Impact Fees are paid.
1.21. “Existing Land Use Regulations” means the Land Use Regulations in effect
as of the Effective Date applicable to the Development of the Owner Property during the Term
except as otherwise provided by the Reserved Powers set forth in Section 4.2 et seq.
1.22. “Government Code” means the California Government Code.
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1.23. “Indemnitees” means the City and its elected and appointed officials,
employees, volunteers, agents, and representative.
1.24. “Land Use Regulations” means the City General Plan, the Tuscany Hills
Specific Plan, and all ordinances, resolutions, codes, rules, regulations and official policies of the
City adopted by ordinance or resolution governing the development and use of land, including
zoning, permitted uses, density or intensity of use, subdivision requirements, the maximum height
and size of proposed buildings, design, improvement and construction standards and
specifications, and the provisions for Development Exactions. "Land Use Regulations" does not
include any City ordinance, resolution, code, rule, regulation or official policy, governing: (a) the
conduct of businesses, professions, and occupations except subdivisions; (b) taxes and
assessments; (c) the control and abatement of nuisances; and/or (d) the exercise of the power of
eminent domain.
1.25. “Law” means any official legislative enactment of a governmental agency,
public body, or court that binds the Parties. "Laws" shall include but not be limited to case law,
constitutional provisions, statutes, ordinances, initiatives, resolutions, policies, orders, rules, and
regulations. A matter is a Law regardless of whether it was imposed by a legislative body (such
as the City Council or State Legislature), an administrative agency (such as the Public Utilities
Commission), the electorate (as by initiative or referendum), court (by judgment, order or opinion),
or any other official body (such as the Planning Commission), and regardless of whether it is
federal, state, or local.
1.26. “LEMC” means the Lake Elsinore Municipal Code as amended from time
to time.
1.27. “Owner” means T.T. Group, Inc., a California corporation and its permitted
successors in interest to the Owner Property, and/or permitted assignees of Owner's rights under
this Agreement.
1.28. “Owner Property” means the real property which is the subject of this
Agreement and which is described in Recital F, and more particularly described in Exhibit “A”
and depicted in Exhibit “B” attached hereto and incorporated by this reference.
1.29. “Parties” means the Owner and the City.
1.30. “Periodic Review” is defined in Section 6.1.
1.31. “Processing Fees and Charges” means all processing fees and charges
required by the City in connection with new construction, including, but not limited to,
Development Approval application fees, plan-check and inspection fees, fees for monitoring
compliance with any Development Approval or for monitoring compliance with environmental
impact mitigation measures. “Processing Fees and Charges” shall not include Development Impact
Fees or Development Exactions.
1.32. “Project” means the Development of the Owner Property for residential and
related ancillary uses and open space uses, proposed by the Owner to include approximately 584
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detached single-family homes as set forth in the Applicable Rules, including Conditions of
Approval.
1.33. “Reservation” means the setting aside of land for future public use, without
any legal right, title or interest being conveyed other than the promise to convey an interest upon
payment of fair market value for such land.
1.34. “Reserved Powers” means the rights and authority excluded from the
assurances and rights provided to Owner under this Agreement and reserved to the City under
Section 4.3 of this Agreement.
1.35. “Subsequent Approvals” shall mean and include any future entitlements,
including residential design review and any land use permits, variance, conditional use permit,
building permits, grading permits, encroachment permits, landscape and signage plan, subdivision
tract maps, parcel maps, lot line adjustments, and other similar permits, required in connection
with the Development of the Owner Property approved by the City in compliance with CEQA and
the City Council’s findings and determinations with respect thereto.
1.36. “Summerhill Drive Extension Project” means the construction of two lanes
of Summerhill Drive from the existing terminus at the south extending northerly to Greenwald
Avenue in conformance with the final alignment and final plans approved by the City.
1.37. “Term” is defined in Section 5.1.
2. DEVELOPMENT OF THE OWNER PROPERTY.
2.1. Uses.
The Owner Property may be used in accordance with the Existing
Development Approvals, all Subsequent Approvals, and the Existing Land Use Regulations.
2.2. Intensity.
Permitted density and intensity of use vested hereby shall be the maximum
permitted by the Existing Development Approvals, all Subsequent Approvals, and the Existing
Land Use Regulations.
2.3. Size.
The maximum height and size of buildings vested hereby shall be as set
forth in the Existing Development Approvals, all Subsequent Approvals, and the Existing Land
Use Regulations.
2.4. Slopes.
The City shall encourage and allow the use of the latest technology for spray
seeding and drip irrigation of slopes consistent with applicable Laws.
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2.5. Tentative Subdivision Map Extensions and Modifications.
In accordance with Government Code §66452.6(a)(1), Tentative,
Tentative Tract Map No. 31370 in connection with Development of the Owner Property, shall be
granted an extension of time for the greater of the Term of this Agreement (in which case no such
extension application to extend the expiration date of the tentative map need be filed) or such time
approved in accordance with State law or the Existing Land Use Regulations.
To the extent permitted by applicable Laws, including the
Subdivision Map Act (Government Code §66410 et seq.), minor modifications to existing tentative
tract maps shall be reviewed by the City Engineer or Community Development Director without
a public hearing for matters such as moving streets, changes to pad elevations, re-alignment and
loss of lots, and related changes that do not increase the number of lots, when such changes are
required for compliance with (i)WQMP or drainage related re-design requirements, (ii) MSHCP
feasibility reconfiguration, (iii) fire department requirements and/or (iv) other applicable Laws.
2.6. Timing of Development.
In order to avoid the result in Pardee Construction Co. v. City of Camarillo,
37 Cal.3d 465 (1984), the City and Owner agree that Owner shall have the right, without
obligation, to develop the Project in such order and at such rate and times as Owner deems
appropriate within the exercise of its subjective business judgment, subject only to the Existing
Development Approvals. Furthermore, the City shall not (whether by City Council action,
initiative or otherwise) limit the rate or timing of Development of the Owner Property except as
expressly authorized by the Existing Development Approvals. Nothing in this section shall be
construed to limit the City’s right to require that Owner timely provide all Reservations,
Dedications and public improvements in accordance with the Existing Development Approvals
and this Agreement.
3. DEVELOPMENT EXACTIONS.
3.1. Reservations, Dedications and Improvements; Summerhill Drive Extension
Project Rights of Way.
Reservations and Dedications and the provision of improvements and
facilities for public purposes shall be those, and only those, required by the Conditions of Approval
adopted by the City in connection with the Existing Development Approvals any and all
Subsequent Approvals, the Existing Land Use Regulations, and/or this Agreement, including the
Summerhill Drive Extension Project.
To accelerate the construction of the Summerhill Drive Extension Project,
the City has advanced funds toward the cost of engineering and design (the “City Advance”). To
that end, City has expended approximately Four Hundred Ten Thousand Four Hundred Forty-Two
Dollars ($410,442) pursuant to the following agreements: 1) a Professional Services Agreement
with Glenn Lukos Associates, Inc. to provide biological and regulatory consulting services for the
Summerhill Drive Extension Project, including preparation of a General Biological Report and a
Jurisdictional Delineation Report to be used for permitting purposes, and 2) a Professional Services
Agreement with Hunsaker and Associates, Inc. to provide civil engineering design services,
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including traffic signal, hydrology, storm drain improvements, grading, geotechnical and all other
engineering disciplines required to complete a constructible design of the Summerhill Drive
Extension Project.
No later than ninety (90) days after the later of (a) the date of approval by
City of the final alignment and final plans for the Summerhill Drive Extension Project or (b) the
date of approval of this Development Agreement, Owner shall at no cost to the City make an
irrevocable offer of dedication of fee interest in the right of way for the Summerhill Extension
Project located on the Owner Property together with construction, slope and drainage easements
as required by City in connection with the Summerhill Drive Extension Project. Owner may
reserve a utility and or other infrastructure easement(s) within the dedicated right of way so long
as such reservations do not interfere with the construction, completion and operation of the
Summerhill Drive Extension Project.
In the event City obtains funding and completes construction of the
Summerhill Drive Extension Project prior to the Owner’s development of the Project, Owner shall
reimburse City Owner’s fair share contribution of the City’s Advance and cost of construction of
the Summerhill Drive Extension Project prior to issuance by City of the first building permit (not
including model homes) for the Project.
If City does not obtain the necessary funding and/or complete the
construction of the Summerhill Extension Project prior to the Owner’s development of the Project,
then Owner shall complete the construction of the Summerhill Drive Extension Project prior to
issuance by City of the first building permit (not including model homes) for the Project. During
the construction of the Summerhill Extension Project, the City and the Owner will exercise best
efforts to coordinate with the construction schedules for EVMWD sewer and water facilities and
other infrastructure facilities so as to minimize public inconvenience and disruption of traffic and
maximize the efficiency of in-road construction projects.
3.2. Owner’s Obligation to Pay Fees.
During the Term of this Agreement, Owner shall pay all Existing
Development Impact Fees and all Processing Fees and Charges imposed by City and any other
fees and charges imposed by any other regulatory agency with jurisdiction over the Owner
Property within the time and in the manner prescribed by such agency or the City, and shall receive
such credits and/or reimbursements for improvements constructed in accordance with the
provisions set forth in the LEMC. Owner shall pay Existing Development Impact Fees and
Processing Fees and Charges at the prevalent rate in effect as of the date such fees and charges are
paid.
3.3. Development Agreement Fees.
Upon the City’s issuance of each building permit for each residential
dwelling unit to be constructed within the Project by Owner, Owner shall pay to City a
Development Agreement Fee in the amount of Five Thousand Five Hundred Dollars ($5,500)
(each, a “DAG Fee” and collectively, “DAG Fees”). DAG Fees shall be deposited by City into a
capital facilities fund to be used toward the construction of capital facilities as determined by City
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in its sole and absolute discretion. If a Community Facilities District (“CFD”) special tax is
requested by the Owner and approved by the City Council acting in its reasonable discretion and
in accordance with applicable laws pursuant to Section 3.6 of this Agreement, DAG fees may be
paid out of the CFD or reimbursed from the CFD. Owner’s obligation to pay DAG Fees shall
survive termination of this Agreement.
3.4. Affordable Housing Fee.
Upon issuance of each residential building permit for development on the
Owner Property, Owner shall pay to City an affordable housing fee of $2.00 per habitable square
foot of residential development (“Affordable Housing Fee”). Owner’s obligation to pay the
Affordable Housing Fee shall survive termination of this Agreement.
3.5. Participation in CFD 2015-1 and CFD 2015-2.
Owner agrees to annex the Owner Property into City of Lake Elsinore
Community Facilities District No. 2015-1 (Law Enforcement, Fire and Paramedic Services)
(“CFD No. 2015-1”) or into such successor district formed to fund law enforcement, fire and
paramedic services pursuant to the Mello-Roos Community Facilities Act of 1982, as amended,
and to pay any special taxes associated therewith to offset the annual negative fiscal impacts of the
Owner’s project on public safety operations in the City. For information purposes only, the special
tax rate in effect in Community Facilities District No. 2015-1 as of the Effective Date is
approximately Seven Hundred Seventy and 53/100 Dollars ($770.53) per year for each single-
family residence and Four Hundred Seventy-One and 32/100 Dollars ($471.32) per year for each
multi-family residential unit, subject to an automatic annual adjustment each July 1 equal to the
greater of i) the percentage increase in the Consumer Price Index (All Items) for Los Angeles-
Riverside-Orange County (1982-84=100) since the beginning of the preceding fiscal year, or ii)
four percent (4%). Special taxes shall be levied on a parcel-by-parcel basis, commencing at the
time of issuance of building permits for the Owner Property. The Owner may propose alternative
equivalent financing mechanisms to fund the annual negative fiscal impacts of the Development
on the Owner Property with respect to Law Enforcement, Fire and Paramedic Services the
sufficiency of which shall be evaluated by the City Manager. Owner shall make a non-refundable
deposit of Fifteen Thousand Dollars ($15,000), or at the current rate in place at the time of
annexation, toward the cost of annexation, formation or other mitigation process, as applicable.
Owner agrees to annex the Owner Property into City of Lake Elsinore
Community Facilities District No. 2015-2 (Maintenance Services) (“CFD No. 2015-2”) or such
successor district formed to fund the on-going operation and maintenance of the (i) public right-
of-way, including street sweeping, (ii) the public right-of-way landscaped areas and parks to be
maintained by the City; and (iii) for street lights in the public right-of-way for which the City will
pay for electricity and a maintenance fee to Southern California Edison, including streets,
parkways, open space and public storm drains constructed within the Owner Property and federal
NPDES requirements pursuant to the Mello-Roos Community Facilities Act of 1982, as amended,
and to pay any special taxes associated therewith to fund such on-going operation and maintenance
costs to offset the annual negative fiscal impacts of the Owner’s project. The special tax shall be
levied on a parcel-by-parcel basis, commencing at the time of issuance of building permits for the
Owner Property subject to an automatic annual adjustment each July 1 equal to the greater of i)
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the percentage increase in the Consumer Price Index (All Items) for Los Angeles-Riverside-
Orange County (1982-84=100) since the beginning of the preceding fiscal year, or ii) two percent
(2%). The Owner may propose alternative equivalent financing mechanisms to fund the annual
negative fiscal impacts of the Development on the Owner Property with respect to Maintenance
Services the sufficiency of which shall be evaluated by the City Manager. Fulfillment of applicable
Maintenance Services by a homeowner’s association under CC&R’s for the Owner Property are
an acceptable means of equivalent financing mechanism for Maintenance Services; provided
however, that the annexation to CFD No. 2015-2 or into such successor district shall be complete,
the obligations established thereunder shall remain dormant and special taxes shall not be levied
pursuant thereto unless and until activated by the City upon a determination that the homeowner’s
association has defaulted in its obligation to satisfactorily perform the Maintenance Services.
Owner shall make a non-refundable deposit of Fifteen Thousand Dollars ($15,000), or at the
current rate in place at the time of annexation, toward the cost of annexation, formation or other
mitigation process, as applicable.
Notwithstanding the foregoing, if all or any portion of the Owner Property
is already annexed into an existing services community facilities district or other financing district
for Law Enforcement, Fire and Paramedic Services or Maintenance Services which overlaps with
CFD 2015-1 and/or CFD 2015-2 as to services to be funded, City shall assist Owner in having
such CFD dissolved and shall pay the administrative costs of de-annexation from such other
financing district in order to enable Owner to annex into CFD 2015-1 and/or CFD 2015-2 with the
other participating Owners to avoid duplication of services.
3.6. Financing of Public Facilities; Future CFDs.
City, in cooperation with and at the request of Owner and submittal of the
requisite application and formation deposit (including deposit for any non-contingent professional
services related to the issuance of bonds), shall initiate and use its commercially reasonable and
diligent efforts to cause the City to establish a Mello-Roos Community Facilities District (“CFD”)
to finance public improvements and facilities to be constructed and installed in conjunction with
the Development of the Owner Property in accordance with the provisions of the Mello-Roos
Community Facilities Act of 1982 (Government Code §53311 et seq.), as amended (“Mello Roos
Act”).
The parameters of the CFD(s) shall be as follows or as otherwise required
to meet minimum requirements of California law or City policy, as the same may be amended
from time to time: (i) a minimum value-to-lien ratio of 3 to 1; (ii) a total effective tax rate (taking
into account all ad-valorem taxes, assessments, and special taxes expected to be levied on the end-
user, including potential participation by other public agencies by way of a joint community
facilities agreement for facilities and/or fees of such other public agencies) not to exceed two
percent (2%) of the estimated residential home prices at the time of CFD formation; provided that
the City in its sole discretion may impose in the rate and method of apportionment appropriate
provisions to reduce taxes at bond issuance to below 2% or reduce the amount of bonds issued in
order to ensure tax rates not above 2%; (iii) a debt service coverage ratio equal to 110% (unless
adequate credit enhancement is provided to the reasonable satisfaction of the City to allow for a
lower ratio); (iv) an annual escalator on the CFD special tax and debt service not to exceed two
percent (2%) per year (and subject to appropriate increases in the special tax upon defaults by other
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properties within the CFD); and (v) administrative expenses shall not exceed Thirty-Five
Thousand Dollars ($35,000) per year, adjusted annually by the greater of i) the percentage increase
in the Consumer Price Index (All Items) for Los Angeles-Riverside-Orange County (1982-
84=100) since the beginning of the preceding fiscal year, or ii) two percent (2%).
The City shall at all times have discretion as to factors relating to the
issuance of bonds in the prudent management of the issuance of tax-exempt securities under laws
and conditions then applicable, including, but not limited to, then-applicable marketing conditions
and sound municipal financing practices. Prior to the issuance of any CFD bonds, the CFD shall
levy special taxes on all parcels of developed property (as defined in the applicable rate and method
of apportionment) at the assigned special tax rates and use such funds to pay for the costs of
administering the CFD and for the costs of acquiring eligible public improvements or funding
Existing Development Impact Fees (as provided for in the applicable rate and method of
apportionment and CFD formation documents). The City and Owner agree that the first priority
for funding from the proceeds of special taxes and bonds pursuant to such facilities CFDs shall be
reimbursement for eligible public improvements; provided, however that the City agrees that
payment of Existing Development Impact Fees shall be eligible for CFD funding so long as the
City has a reasonable expectation of expending bond proceeds on the corresponding public
improvements within three years of the receipt of such funds. In addition, the City agrees to
provide reasonable cooperation with other public agencies and to exercise reasonable discretion in
evaluating proposed joint community facilities agreement(s) for facilities and/or fees of such other
public agencies.
3.7. Compliance with Laws.
Owner shall carry out the design and construction of public improvements
in conformity with all applicable Laws, including without limitation, public bidding and
construction requirements in accordance with applicable City requirements and applicable federal
and state labor Laws which shall include, if appliable, Labor Code § 1720 et seq., including without
limitation the payment of prevailing wage and maintenance of payroll records in accordance with
Labor Code §§ 1776 and 1812, and employment of apprentices in accordance with Labor Code §
1777.5. Owner further agrees that all public work (as defined in Labor Code § 1720) performed
pursuant to this Agreement, if any, shall comply with the requirements of Labor Code § 1770 et
seq. In all bid specifications, contracts and subcontracts for work that is subject to the prevailing
wage requirements of Labor Code §1720 et seq., Owner (or its general contractor, in the case of
subcontracts) shall obtain the general prevailing rate of per diem wages and the general prevailing
rate for holiday and overtime work in this locality for each craft, classification or type of worker
needed to perform the work, and shall include such rates in the bid specifications, contract or
subcontract.
3.8. Prevailing Wage Indemnification.
Owner shall indemnify, protect, defend and hold harmless the Indemnitees,
with counsel reasonably acceptable to the City, from and against any and all loss, liability, damage,
claim, cost, expense and/or "Increased Costs" (including reasonable attorneys' fees, court and
litigation costs, and fees of expert witnesses) which, in connection with the Development, results
or arises from the following: (1) the noncompliance by Owner of any applicable Law, including,
without limitation, any applicable federal and/or State labor Laws (including, without limitation,
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if applicable, the requirement to pay State prevailing wages and to hire apprentices); (2) the
implementation of Section 1781 of the Labor Code, as the same may be amended from time to
time, or any other similar Law; and/or (3) failure by Owner to provide any required disclosure or
identification as required by Labor Code Section 1781, as the same may be amended from time
to time, or any other similar Law. It is agreed by the Parties that, in connection with the
Development, including, without limitation, any and all public works (as defined by applicable
Law), Owner shall bear all risks of payment or non-payment of prevailing wages and hiring of
apprentices under California Law and/or the implementation of Labor Code Section 1781, as the
same may be amended from time to time, and/or any other similar Law. "Increased Costs," as used
in this Section 3.8, shall have the meaning ascribed to it in Labor Code Section 1781, as the same
may be amended from time to time. The foregoing obligations set forth in this Section 3.8 shall
survive termination of this Agreement and shall terminate upon the expiration of all statutes of
limitation applicable to claims with respect to which Owner is required to indemnify the
Indemnitees pursuant to this Section 3.8.
4. VESTED RIGHTS.
4.1. Development of the Owner Property.
During the Term and subject to the Reserved Powers, Owner shall have the
vested right to develop and use the Owner Property subject to the terms and conditions of the
Applicable Rules and any and all Subsequent Approvals as set forth in this Agreement. The Parties
agree and acknowledge that this Agreement itself does not authorize Owner to undertake any
Development of the Owner Property nor does this Agreement require the City to approve any
Subsequent Approval; provided, however, except as otherwise set forth in this Agreement, the City
shall process any Subsequent Approval in accordance with the Existing Land Use Regulations and
this Agreement. In the event of conflict between the Existing Development Approvals and this
Agreement, this Agreement shall prevail.
Before any Development activity can occur, the Owner shall have satisfied
the applicable Conditions of Approval of the Existing Development Approvals for the Owner
Property and obtained any necessary Subsequent Approvals for the Owner Property pursuant to
the Applicable Rules.
4.2. No New Development Impact Fees.
Owner acknowledges that, in the absence of this Agreement, the
Development of the Owner Property would be subject to all Development Impact Fees in place at
the time any building permits are issued by the City, or as otherwise required by the LEMC. As
consideration for the Owner’s obligations hereunder and the benefits to the City, commencing on
the Effective Date and continuing during the Term of this Agreement, the Development Impact
Fees imposed by the City with respect to the Development of the Owner Property shall be the
categories of Existing Development Impact Fees as described and set forth in Exhibit “C.”
Upon expiration of the Term, or earlier termination of this Agreement
pursuant to Section 5.2, Development of the Owner Property shall be subject to any and all
Development Impact Fees and Development Exactions imposed by the City in accordance with
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any applicable Law and/or the LEMC as amended from time to time. Nothing in this Agreement
is intended to prevent the imposition of fees or other exactions by any governmental entity not
affiliated with the City.
4.3. Reserved Powers.
Although the Existing Land Use Regulations and Existing Development
Impact Fees will govern Development of the Owner Property, this Agreement will not prevent and
shall not be construed to limit the authority of City to apply new rules, regulations and policies set
forth in this Section 4.3 et seq. (“Reserved Powers”) in connection with the Development of the
Owner Property.
4.3.1. Processing Fees and Charges.
Processing Fees and Charges as defined in Section 1.31 shall be paid
by Owner at the prevalent rate at the time of payment.
4.3.2. Procedural Regulations.
Procedural regulations relating to hearing bodies, petitions,
applications, notices, findings, records, hearings, reports, recommendations, appeals and any other
matter of procedure.
4.3.3. Building Codes.
Regulations, policies and rules governing engineering and
construction standards and specifications including without limitation, the Building Codes as
defined in Section 1.3 and similar codes and any local amendments adopted by the City.
4.3.4. Non-Conflicting Regulations.
New, rules, regulations and policies which do not conflict with the
Existing Land Use Regulations. The term "do not conflict" means new rules, regulations, policies
which: (a) do not modify the permitted land uses, the density or intensity of use, the phasing or
timing of development, the maximum height and size of proposed buildings on the Owner
Property, provisions for dedication of land for public purposes and Development Exactions, except
as expressly permitted elsewhere in this Agreement, and standards for design, development and
construction on the Owner Property; (b) do not prevent Owner from obtaining any Subsequent
Approvals, including, without limitation, all necessary approvals, permits, certificates, and the
like, at such dates and under such circumstances as Owner would otherwise be entitled pursuant
to the Existing Land Use Regulations; or (c) do not prevent Owner from commencing, prosecuting,
and finishing grading of the land, constructing public and private improvements, and occupying
the Owner Property, or any portion thereof, all at such dates and schedules as Owner would
otherwise be entitled to do so by Development Approvals, Subsequent Approvals, and the Existing
Land Use Regulations.
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4.3.5. Certain Conflicting Regulations.
Regulations in conflict with the Existing Land Use Regulations,
including General Plan land use, zoning and development standards, if the application of such
regulations to the Development of the Owner Property has been consented to in writing by the
Owner. Application of such conflicting regulations may require Owner to obtain Subsequent
Approvals.
4.3.6. Regulations Needed to Protect the Health and Safety.
Any City ordinance, resolution, regulation, or official policy which
is reasonably necessary to protect persons from conditions dangerous to their health and/or safety;
are permissible provided that any such regulations must constitute a valid exercise of the City’s
police power, applied and enforced in a uniform, consistent and nondiscriminatory manner.
4.3.7. Regulations by Other Public Agencies.
The Parties acknowledge that other public agencies, not within the
control of the City, possess authority to regulate aspects of Development separately from the City.
This Agreement does not limit the authority of such other public agencies. Nothing contained in
this Agreement shall be construed as limiting, in any way, the authority of such other public
agencies to impose any new or increased development impact fees or other fees or charges, even
though such impositions may be collected by the City.
4.3.8. General and Special Taxes.
Owner shall pay general or special taxes, including but not limited
to, property taxes, sales taxes, transient occupancy taxes, business taxes, which may be applied to
the Owner Property or to businesses occupying the Owner Property; provided, however, that the
tax is of general applicability Citywide and does not burden the Owner Property disproportionately
when compared to the development of other residential uses within the City. Nothing in this
Agreement prohibits the adoption and application of a CFD special tax requested by the Owner
and approved by the City in accordance with Section 3.6 of this Agreement.
4.3.9. End Users.
Laws of the City that impose, levy, alter or amend fees, charges, or
Land Use Regulations relating solely to post-Development conduct of consumers or end users,
such as, without limitation, trash can placement, service charges and limitations on vehicle
parking, are permissible so long as those later enactments are applied and enforced in a uniform,
consistent and non-discriminatory manner and do not impair Owner's vested rights to develop the
Owner Property consistent with the Applicable Rules.
4.4. Subsequent Actions and Approvals.
The City shall accept and process with reasonable promptness all completed
applications for any Subsequent Approval (including tentative and final tract maps, improvement
plans, and decisions relating to the design and location of public improvements on Owner
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Property) in accordance with the Existing Land Use Regulations; provided, however, this
Agreement will not prevent the City, in subsequent actions applicable to the Owner Property, from
applying new rules, regulations and policies which do not conflict with the Existing Land Use
Regulations, nor will this Agreement prevent the City from denying or conditionally approving
any Subsequent Approval on the basis of such Existing Land Use Regulations or such new rules,
regulations or policies. Subsequent Approvals shall, upon approval and as may be amended from
time to time, become part of the Applicable Rules and the Owner shall have a “vested right,” as
that term is defined under California law, in and to such Subsequent Approvals by virtue of this
Agreement.
4.5. State and Federal Laws.
If State or Federal laws or regulations enacted after the Effective Date
hereof, prevent or preclude compliance with one or more of the provisions of this Agreement, such
provisions of this Agreement will be modified or suspended as may be necessary to comply with
such State or Federal laws or regulations; provided, however that this Agreement will remain in
full force and effect to the extent it is not inconsistent with such State or Federal laws or regulations
and to the extent such laws or regulations do not render such remaining provisions impractical to
enforce.
4.6. Police Power and Taxing Power.
The City will not impose, or enact any additional Development Exactions,
Conditions of Approval or regulations through the exercise of either the police power or the taxing
power with respect to the Development of the Owner Property except as provided in the Existing
Land Use Regulations or except as provided in the Reserved Powers set forth in Section 4.2 of this
Agreement.
4.7. Supersedure by Subsequent Laws.
If any federal or state law, made or enacted after the Effective Date prevents
or precludes compliance with one or more provisions of this Agreement, then the provisions of
this Agreement shall, to the extent feasible, be modified or suspended as may be necessary to
comply with such new law. Immediately after enactment or promulgation of any such new law,
City and Owner shall meet and confer in good faith to determine the feasibility of any such
modification or suspension based on the effect such modification or suspension would have on the
purposes and intent of this Agreement. Owner and City shall have the right to challenge the new
law preventing compliance with the terms of this Agreement, and in the event such challenge is
successful, this Agreement shall remain unmodified and in full force and effect. At Owner’s sole
option, the term of this Agreement may be extended for the duration of the period during which
such new law precludes compliance with the provisions of this Agreement.
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5. DURATION OF AGREEMENT.
5.1. Term.
This Agreement shall commence as of the Effective Date and, unless earlier
terminated in accordance with Section 5.2 or another provision hereof, shall automatically expire
on the fifth (5th) anniversary thereof (the “Term”).
5.2. Termination.
This Agreement shall be deemed terminated and of no further effect upon
the occurrence of any of the following events set forth in this Section 5.2 et seq.
a. Expiration of the Term.
b. Entry of a final judgment setting aside, voiding or annulling the
adoption of the Enabling Ordinance.
c. The adoption of a referendum measure overriding or repealing the
Enabling Ordinance. Owner acknowledges that, pursuant to Article 2, Section 11 of the California
Constitution and California Elections Code Section 9235, et seq. (collectively, the “Referendum
Laws”), the electors of the City may, within thirty (30) days after adoption of the Enabling
Ordinance, file a petition in accordance with Elections Code Section 9237 to require the City to
either repeal such ordinance or hold an election to obtain voter approval of such Enabling
Ordinance and this Agreement. In the event a valid referendum petition challenging the validity of
the Enabling Ordinance is filed in accordance with the Referendum Laws, the City may, in its sole
and absolute discretion, either (1) terminate this Agreement or (2) submit the Enabling Ordinance
to the voters for approval in accordance with the Referendum Laws.
d. Termination of this Agreement based on any default of any Party
and following the termination proceedings required by Section 9 et seq. of this Agreement.
5.3. Effect of Termination.
Termination of this Agreement by one Party due to the default of the other
Party in accordance with the provisions of Section 9 et seq. will not affect any right or duty
emanating from any then-existing Development Approval and the Conditions of Approval related
thereto with respect to the Owner Property, but the rights and obligations of the Parties will
otherwise cease as of the date of such termination. If the City terminates this Agreement because
of a default of the Owner, then the City will retain any and all benefits including, without
limitation, money or land received by the City hereunder before termination. Notwithstanding the
foregoing, the following obligations shall survive any termination of this Agreement: (i) Owner to
pay the Development Agreement Fee and the Affordable Housing Fee as set forth in Sections 3.3
and 3.4, respectively, and (ii) to indemnify the City as set forth in Section 17.
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6. PERIODIC REVIEW; OPERATING MEMORANDA; AMENDMENT.
6.1. Periodic Review.
City shall review this Agreement annually (“Periodic Review”) on or before
the anniversary of the Effective Date. During each Periodic Review, Owner is required to
demonstrate good faith compliance with the terms of this Agreement, and shall furnish such
reasonable evidence of good faith compliance as the City, in the exercise of its reasonable
discretion, may require. Such Periodic Review shall be conducted administratively by the City
Manager and any appropriate department heads designated by the City Manager to perform such
Periodic Review. The City Manager shall report the results of such Periodic Review to the City
Council within thirty (30) days after the conclusion thereof. No public hearing shall be held by
the City Manager or City Council with regard to such Periodic Review; provided, however, that
the City Council and/or the Owner shall have the right to appeal the City Manager’s findings to
the City Council, in which case Owner shall have the right to request a public hearing on the matter.
City shall notify Owner in writing of the date for review at least thirty (30) days prior thereto. The
City’s failure to review the Owner’s compliance with this Agreement, at least annually, will not
constitute or be asserted by either Party as a breach by the other Party. The requirement for a
Periodic Review shall not be deemed to modify or restrict Owner’s rights under Section 2.6 to
develop the Project in such order and at such rate and times as Owner deems appropriate in view
of market conditions and within the exercise of its subjective business judgment, subject only to
the Existing Development Approvals.
6.2. Operating Memoranda.
The provisions of this Agreement require a close degree of cooperation
between the City and the Owner. The Development of the Owner Property may demonstrate that
clarifications to this Agreement and the Existing Land Use Regulations are appropriate with
respect to the details of performance of the City and the Owner. To the extent allowable by Law,
the Owner shall retain a certain degree of flexibility as provided herein with respect to all matters,
items and provisions covered in general under this Agreement, except for those which relate to the
(i) term; (ii) permitted uses; or (iii) density or intensity of use. When and if the Owner finds it
necessary or appropriate to make changes, adjustments or clarifications to matters, items or
provisions not enumerated in (i) through (iii) above, the Parties shall effectuate such changes,
adjustments or clarifications through operating memoranda (the “Operating
Memoranda”) approved by the Parties in writing which reference this Section 6.1. Operating
Memoranda are not intended to constitute an amendment to this Agreement but mere ministerial
clarifications; therefore public notices and hearings shall not be required. The City Manager shall
be authorized, upon consultation with, and approval of, the Owner, to determine whether a
requested clarification may be effectuated pursuant to this Section or whether the requested
clarification is of such character to constitute an amendment to this Agreement which requires
compliance with the provisions of Section 6.3 below.
6.3 Amendment.
Subject to the notice and hearing requirements of the Government Code,
this Agreement may be modified or amended from time to time only with the written consent of
temp_B1B471.docx -18-
the Owner and the City or their successors and assigns in accordance with the provisions of the
Development Agreement Ordinance and the Development Agreement Act.
7. COVENANT OF FURTHER ASSURANCES AND FAIR DEALING.
7.1. Further Assurances.
Each Party covenants on behalf of itself and its successors and assigns to
take all actions and do all things, and to execute with acknowledgments or affidavits if required,
any and all documents and writings that may be necessary or proper to achieve the purposes and
objectives of this Agreement. Each Party will take all necessary measures to see that the provisions
of this Agreement are carried out in full.
7.2. Covenant of Good Faith and Fair Dealing.
Except as may be required by Law, neither Party will do anything which
will have the effect of harming or injuring the right of the other Party to receive the benefits of this
Agreement and each Party will refrain from doing anything which would render performance
under this Agreement impossible or impractical. In addition, each Party will do everything which
this Agreement describes that such Party will do.
8. PERMITTED DELAYS.
Any period of delay caused by acts of God; civil commotion; war; insurrection;
riots; strikes; walk outs; picketing or other labor disputes; unavoidable shortages of labor, materials
or supplies; damages to work in progress by reason of fire, flood, earthquake or other casualty;
pandemics; epidemics; quarantine restrictions; litigation challenging the validity of this
Agreement, the Project or any element thereof or which prohibits, delays or interferes with
performance of the Agreement; moratoria; judicial decisions; governmental agency or entity (with
the understanding that acts or failures to act of the City shall not excuse performance by the City)
or utility; or any other cause which is not within the reasonable control of the Parties may extend
the duration of the Agreement. Each Party will promptly notify the other Party of any delay
hereunder as soon as possible after the same has been ascertained, and the term of this Agreement
will be extended by the period of any such delay. Any claim for delay must be presented within
ninety (90) days of knowledge of the cause of such delay or any entitlement to time extension will
be deemed waived. Notwithstanding the foregoing, in no event shall Owner be entitled to a
permitted delay due to an inability to obtain financing or proceed with development as a result of
general market conditions, interest rates, or other similar circumstances that make development
impossible, commercially impracticable, or infeasible.
9. DEFAULT.
9.1. Events of Default.
Except for automatic termination pursuant to Section 5.2 and subject to any
written extension of time by mutual consent of the Parties or permitted delays pursuant to the
provisions of Section 8, the uncured failure of either Party to perform any material term or
provision of this Agreement will constitute a default. On written notice to a Party of its failure of
temp_B1B471.docx -19-
performance, such Party will have thirty (30) days to cure such failure of performance; provided,
however that if the nature of the failure of performance is such that it cannot be cured within such
period, then the diligent prosecution to completion of the cure will be deemed to be cure within
such period. Any notice of default given hereunder will be in writing and specify in detail the
nature of the alleged default and the manner in which such default may be satisfactorily cured in
accordance with this Agreement. During the time period herein specified for the cure of a failure
of performance, the Party charged with such failure of performance will not be considered to be in
default for purposes of termination of this Agreement or for purposes of institution of legal
proceedings with respect thereto and, if the Owner is the Party that has failed to perform, then the
City will not be excused from its performance under this Agreement during that period.
9.2. Remedies.
The Parties acknowledge and agree that the terms of this Agreement render
ordinary remedies at law or equity inadequate for a breach of this Agreement. The Parties also
acknowledge and agree that it would not be feasible or possible to restore the Owner Property to
its natural condition once implementation of the Agreement has begun. Therefore, the Parties agree
that upon default and expiration of any applicable cure period, the remedies available to the non-
defaulting Party against a defaulting Party shall be limited to one or more of the following:
injunctive relief, mandate (traditional and/or administrative), specific performance, and/or
termination; provided, however, that in the event of any 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. Except as otherwise expressly stated in this
Agreement, the rights and remedies of the Parties are cumulative, and the exercise by either Party
of one or more of such rights or remedies shall not preclude the exercise by it, at the same or
different times, of any other rights or remedies for the same default or any other default by the
other Party.
9.3. Institution of Legal Action.
In addition to any other rights or remedies, either Party may institute legal
action to cure, correct or remedy any uncured default, to enforce any covenants or agreements
herein, to enjoin any threatened or attempted violation thereof or obtain any remedies consistent
with the purpose of this Agreement. In the event of any such legal action involving or arising out
of this Agreement, the prevailing Party will be entitled to recover from the losing Party, reasonable
litigation expenses, attorneys’ fees and costs incurred. The Parties acknowledge that if a breach of
this Agreement by the City occurs, irreparable harm is likely to occur to the Owner and damages
may be an inadequate remedy. Therefore, to the extent permitted by law, the Parties agree that
specific enforcement of this Agreement by the Parties is an appropriate and available remedy, in
addition to any and all other remedies which may be available to the Parties under law or at equity.
9.4. 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
temp_B1B471.docx -20-
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.
9.5. Right of Mortgagee To Cure.
Any lender for whom notice has been given pursuant to Section 14.2 shall
have the same right to cure a default as Owner. The deadline for a lender to cure a default shall
commence with the giving of a notice of default to that lender, rather than pursuant to notice sent
to Owner.
10. ESTOPPEL CERTIFICATES.
Either Party may at any time, and from time to time, deliver written notice to the
other Party, requesting that the other Party certify in writing to the knowledge of the certifying
Party that: (a) this Agreement is in full force and effect and is a binding obligation of the certifying
Party; (b) this Agreement has not been amended or modified, except as expressly identified; (c) no
default in the performance of the requesting Party’s obligations pursuant to Agreement exists,
except as expressly identified. A Party receiving a request hereunder will execute and return the
requested certificate within thirty (30) days after receipt of the request.
11. INCORPORATION BY REFERENCE.
11.1. Recitals.
The Parties agree that Recitals A through K are true and correct, constitute
a substantive part of this Agreement, are hereby incorporated by reference herein as though set
forth in full and the Parties have materially relied upon them as such in their respective
determinations to execute this Agreement.
11.2. Exhibits.
Each Exhibit to this Agreement is incorporated herein by reference as
though fully set forth herein.
12. APPLICABLE LAW.
This Agreement will be construed and enforced in accordance with the laws of the
State of California.
13. NO JOINT VENTURE, PARTNERSHIP OR THIRD PARTY BENEFICIARY.
The City and the Owner 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 Owner joint
venturers or partners. It is understood that the contractual relationship between the City and the
Owner is such that the Owner 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.
temp_B1B471.docx -21-
14. ENCUMBRANCES AND RELEASES ON REAL PROPERTY.
14.1. Discretion to Encumber.
The Parties agree that this Agreement will not prevent or limit the Owner in
any manner, at the Owner’s sole discretion, from encumbering the Owner Property, or any part of
the same including, without limitation, improvement thereon, by any mortgage, deed of trust or
other security device securing financing with respect to the Owner Property. The City further
agrees that it will not unreasonably withhold its consent to any modification requested by a lender
so long as the modification does not materially alter this Agreement to the detriment of the City.
14.2. Entitlement to Written Notice of Default.
Any lender of the Owner which has filed a written request with the City for
notice of default by Owner will be entitled to receive written notification from the City of any
uncured default by the Owner in the performance of the obligations of the Owner under this
Agreement.
14.3. Property Subject to Pro Rata Claims.
Any mortgagee or beneficiary which comes into possession of the Owner
Property or any part thereof, pursuant to foreclosure of a mortgage or deed of trust, or deed in lieu
of such foreclosure, will take the Owner Property or part thereof, subject to (i) any pro rata claims
for payments or charges against the Owner Property or part thereof secured by such mortgage or
deed of trust, which accrued prior to the time that such mortgagee or beneficiary comes into
possession of the Owner Property or part thereof; and (ii) the terms and conditions of this
Agreement.
15. BINDING EFFECT.
15.1. Entirety of Owner Property.
All of the Property shall be and shall remain subject to this Agreement
throughout the Term. All of the terms, provisions, covenants and obligations contained in this
Agreement will be binding upon the Parties and their respective successors and assigns, and all
other persons or entities acquiring all or any part of the Owner Property, and will inure to the
benefit of such Parties and their respective successors and assigns.
15.2. Owner Property and Agreement Remain Linked.
Subject to Section 15.3, Owner shall have the right to sell, transfer or assign
the Owner Property and its rights under the Agreement. However, any person acquiring any
interest in the Owner Property shall do so subject to this Agreement. Conversely, no sale, transfer
or assignment of any right or interest under this Agreement shall be made unless made together
with a corresponding sale, transfer or assignment as to the Owner Property. If less than all of the
Owner Property is sold, the new owner of that portion shall be responsible for all Development,
including Dedications and the provision of public facilities, within that portion, and the Owner (or
temp_B1B471.docx -22-
its successors as to the entire Owner Property) shall remain responsible for all such matters outside
that portion of the Owner Property.
15.3. Assignment; Notice; City Consent.
The rights and obligations of Owner hereunder shall not be assigned or
transferred, except that (a) transfers by Owner to an affiliated entity that takes title to all or a
portion of Owner’s Property and assumes Owner’s future obligations hereunder with respect to
such portion of the Owner’s Property shall be permissible without consent of the City, provided
Owner shall be released from its obligations under this Agreement only as to that portion of the
Owner’s Property that is subject to such sale, transfer or conveyance, and (b) on thirty (30) days
written notice to City, including submittal of all documentation reasonably required by the City
Manager to evaluate the assignee's financial resources, Owner may assign all or a portion of
Owner’s rights and obligations thereunder to any person or persons, partnership or corporation
who purchases all or a portion of Owner’s right, title and interest in the Owner Property, provided
that (i) such assignee or grantee assumes in writing each and every obligation of Owner hereunder
yet to be performed which relates to the portion(s) of the Owner Property being assigned; and (ii)
Owner obtains the consent of City through its City Manager to the assignment, which consent shall
not be unreasonably withheld. Provided the Owner’s thirty (30) day notice includes submittal of
all documentation reasonably required by the City Manager to evaluate the assignee's financial
resources and the assumption by the assignee or grantee, the consent of the City shall be deemed
to occur upon the thirtieth (30th) day of the notice period unless within that period the City provides
written notice withholding consent and explaining the reasons it is withholding consent. The
notice to City shall include the identity of any such assignee, all documentation reasonably
required by the City Manager to evaluate the assignee's financial resources, and a copy of the
written assumption of the assignor’s obligations hereunder pertaining to the portion assigned or
transferred. After such notice and the receipt of such consent, the assignor shall have no further
obligations or liabilities hereunder. If any assignee or transferee of a portion of the Owner Property
breaches this Agreement, such breach shall not affect the rights and benefits of other assignees or
transferees under this Agreement and City shall continue to perform its obligations under in this
Agreement with respect thereto.
16. TERMS AND CONSTRUCTION.
16.1. Severability.
If any term, provision, covenant or condition of this Agreement is
determined to be invalid, void or unenforceable by judgment or court order, than the remainder of
this Agreement will remain in full force and effect, unless enforcement of this Agreement, as so
invalidated, would be unreasonable or grossly inequitable under all the circumstances or would
frustrate the stated purposes of this Agreement.
16.2. Entire Agreement.
This Agreement contains all representations and terms of agreement by and
between the Parties and constitutes the entire agreement between the City and the Owner. Any
prior correspondence, memoranda, agreements, warranties or representations, oral or written,
temp_B1B471.docx -23-
including that certain Development Agreement by and between the City and Centex Homes dated
October 14, 2003 and recorded as Instrument No. 2003-960052 in the Official Records of
Riverside County and the First and Second Operating Memorandum of Understanding entered into
pursuant thereto which expired by their own terms and have no further force or effect, are
superseded in total by this Agreement. Upon execution Owner, the final Project Agreement shall
supersede the draft Project Agreement attached hereto as Exhibit “C” which fully executed Project
Agreement shall be incorporated herein by reference.
16.3. Authority; Counterpart Signature Pages.
Each individual signing this Agreement on behalf of City and Owner
warrants and represents that he or she has full authority to execute the same on behalf of City and
Owner, respectively, and that he or she is acting within the scope of his or her authority. Each
Party further represents that it has the legal authority to enter into this Agreement and to perform
all obligations under this Agreement.
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.
16.4. Time.
Time is of the essence in this Agreement and of each and every term and
condition hereof.
16.5. Notices.
Any notice shall be in writing and given by delivering the same in person
or by sending the same by registered, or certified mail, return receipt requested, with postage
prepaid, by overnight delivery, or by facsimile or electronic transmission to the respective mailing
addresses, as follows:
If to City: City of Lake Elsinore
130 S. Main Street
Lake Elsinore, CA 92530
Attn: City Manager
Email: jsimpson@Lake-Elsinore.org
With a copy to: Leibold McClendon & Mann, PC
9841 Irvine Center Drive, Suite 230
Irvine, CA 92618
Attn: Barbara Leibold, Lake Elsinore City Attorney
Email: barbara@ceqa.com
temp_B1B471.docx -24-
If to Owner: Jennifer Chen
T.T. Group, Inc.
606 N. First Street
San Jose, CA 95112
Email: jennifer5688@gmail.com
With a copy to: Booke & Ajloun
Attn: Victoria Booke
606 N. First Street
San Jose, CA 95112
Email: vbooke@booke.com
Either City or Owner may change its mailing address at any time by giving written notice of such
change to the other in the manner provided herein at least ten (10) days prior to the date such
change is effected. All notices under this Agreement shall be deemed given, received, made or
communicated on the earlier of the date personal delivery is effected or on the delivery date or
attempted delivery date shown on the return receipt, air bill or facsimile.
16.6. Construction, Number and Gender.
This Agreement will be construed as a whole according to its common
meaning and not strictly for or against either Party in order to achieve the objectives and purposes
of the Parties hereunder. Whenever required by the context of this Agreement, the singular will
include the plural and vice versa, and the masculine gender will include the feminine and neuter
genders. In addition, “will” is the mandatory and “may” is the permissive.
17. INDEMNIFICATION.
The Owner shall defend (with counsel acceptable to the City), indemnify, and hold
harmless the City, its officers, agents, employees, consultants, officials, commissions, councils,
committees, boards and representatives (collectively referred to individually and collectively as
"Indemnitees") harmless from liability for damage or claims for damage for personal injury,
including death and claims for property damage which may arise out of the direct or indirect
activities of the Owner with respect to the Development of the Owner Property, or arising out of
or incident to any acts, omissions, negligence, or willful misconduct of Owner, its employees,
contractors, or agents in connection with the performance of this Agreement. This indemnification
excludes that portion of any claim to the extent caused by the sole negligence or willful misconduct
of City. Owner agrees to and will defend the Indemnitees from any claim, action, or proceeding
to attack, set aside, void, or annul an approval by Indemnitees concerning approval,
implementation and construction of this Agreement or the Existing Development Approvals in
connection with the Development of the Owner Property or any of the proceedings, acts or
determinations taken, done, or made prior to the decision, or to determine the reasonableness,
legality or validity of any condition attached thereto. The Owner's indemnification is intended to
include, but not be limited to, damages, fees and/or costs awarded against or incurred by
Indemnitees and costs of suit, claim or litigation, including without limitation attorneys' fees,
penalties and other costs, liabilities and expenses incurred by Indemnitees in connection with such
proceeding. City shall promptly notify Owner of any such claim, action or proceeding, and City
temp_B1B471.docx -25-
shall cooperate in the defense. Owner’s obligation to indemnify City hereunder shall survive any
termination of this Agreement.
18. RECORDATION BY CITY CLERK.
Pursuant to Government Code Section 65868.5, the City Clerk will record
a copy of the Agreement in the Records of the County Recorder.
[SIGNATURES ON NEXT PAGE]
temp_B1B471.docx -26-
IN WITNESS WHEREOF, City and Owner have executed this Agreement as of the date
first hereinabove written.
“CITY”
CITY OF LAKE ELSINORE,
a municipal corporation
By:
Steve Manos, Mayor
ATTEST:
Candice Alvarez, MMC, City Clerk
APPROVED AS TO FORM:
By:
Barbara Leibold, City Attorney
“OWNER”
T.T. GROUP, INC.,
a California corporation
By:
Name:
Title:
temp_B1B471.docx
STATE OF CALIFORNIA )
) §
County of )
On , before me, a
Notary Public, personally appeared who proved to me on
the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within
instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized
capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity
upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the
foregoing paragraph is true and correct
WITNESS my hand and official seal.
________________________________
Signature of Notary
(Affix seal here)
A notary public or other officer completing this
certificate verifies only the identity of the individual
who signed the document to which this certificate is
attached, and not the truthfulness, accuracy, or
validity of that document.
temp_B1B471.docx
STATE OF CALIFORNIA )
) §
County of )
On , before me, a
Notary Public, personally appeared who proved to me on
the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within
instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized
capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity
upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the
foregoing paragraph is true and correct
WITNESS my hand and official seal.
________________________________
Signature of Notary
(Affix seal here)
A notary public or other officer completing this
certificate verifies only the identity of the individual
who signed the document to which this certificate is
attached, and not the truthfulness, accuracy, or
validity of that document.
temp_B1B471.docx
STATE OF CALIFORNIA )
) §
County of )
On , before me, a
Notary Public, personally appeared who proved to me on
the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within
instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized
capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity
upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the
foregoing paragraph is true and correct
WITNESS my hand and official seal.
________________________________
Signature of Notary
(Affix seal here)
A notary public or other officer completing this
certificate verifies only the identity of the individual
who signed the document to which this certificate is
attached, and not the truthfulness, accuracy, or
validity of that document.
temp_B1B471.docx
STATE OF CALIFORNIA )
) §
County of )
On , before me, a
Notary Public, personally appeared who proved to me on
the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within
instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized
capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity
upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the
foregoing paragraph is true and correct
WITNESS my hand and official seal.
________________________________
Signature of Notary
(Affix seal here)
A notary public or other officer completing this
certificate verifies only the identity of the individual
who signed the document to which this certificate is
attached, and not the truthfulness, accuracy, or
validity of that document.
temp_B1B471.docx Exhibit A
EXHIBIT “A”
LEGAL DESCRIPTION OF THE OWNER PROPERTY
[TO BE INSERTED]
temp_B1B471.docx Exhibit B
EXHIBIT “B”
VICINITY MAP
[TO BE INSERTED]
EXHIBIT “C”
EXISTING DEVELOPMENT IMPACT FEES
[TO BE INSERTED]
temp_B1B471.docx Exhibit D
EXHIBIT “D”
CONDITIONS OF APPROVAL
[TO BE INSERTED]
1 temp_B1052F.docx
RECORDING REQUESTED BY AND
WHEN RECORDED MAIL TO:
City of Lake Elsinore
130 S. Main Street
Lake Elsinore, CA 92530
Attn: City Clerk
SPACE ABOVE THIS LINE FOR RECORDER’S USE
(Exempt from Recording Fees Per Govt. Code §27383)
DEVELOPMENT AGREEMENT
BY AND BETWEEN THE
CITY OF LAKE ELSINORE
AND
CANAIAN PACIFIC LAND, LLC AND STRACK FARMS LAND, LLC
(TENTATIVE TRACT MAP NO. 31370)
TABLE OF CONTENTS
Page
temp_B1052F.docx -i-
1. DEFINITIONS ................................................................................................................3
2. DEVELOPMENT OF THE OWNER PROPERTY....................................................6
2.1. Uses.......................................................................................................................6
2.2. Intensity................................................................................................................6
2.3. Size........................................................................................................................6
2.4. Slopes....................................................................................................................6
2.5. Tentative Subdivision Map Extensions and Modifications.............................7
2.6. Timing of Development.......................................................................................7
3. DEVELOPMENT EXACTIONS...................................................................................7
3.1. Reservations, Dedications and Improvements; Summerhill Drive
Extension Project Rights of Way.......................................................................7
3.2. Owner’s Obligation to Pay Fees.........................................................................8
3.3. Development Agreement Fees............................................................................8
3.4. Affordable Housing Fee......................................................................................9
3.5. Participation in CFD 2015-1 and CFD 2015-2..................................................9
3.6. Financing of Public Facilities; Future CFDs..................................................10
3.7. Compliance with Laws......................................................................................11
3.8. Prevailing Wage Indemnification....................................................................11
4. VESTED RIGHTS........................................................................................................12
4.1. Development of the Owner Property...............................................................12
4.2. No New Development Impact Fees..................................................................12
4.3. Reserved Powers................................................................................................13
4.3.1. Processing Fees and Charges. ..........................................................................13
4.3.2. Procedural Regulations.....................................................................................13
TABLE OF CONTENTS (cont'd)
Page
temp_B1052F.docx -ii-
4.3.3. Building Codes...................................................................................................13
4.3.4. Non-Conflicting Regulations............................................................................13
4.3.5. Certain Conflicting Regulations. .....................................................................14
4.3.6. Regulations Needed to Protect the Health and Safety...................................14
4.3.7. Regulations by Other Public Agencies............................................................14
4.3.8. General and Special Taxes. ..............................................................................14
4.3.9. End Users...........................................................................................................14
4.4. Subsequent Actions and Approvals.................................................................14
4.5. State and Federal Laws.....................................................................................15
4.6. Police Power and Taxing Power. .....................................................................15
4.7. Supersedure by Subsequent Laws...................................................................15
5. DURATION OF AGREEMENT.................................................................................16
5.1. Term...................................................................................................................16
5.2. Termination.......................................................................................................16
5.3. Effect of Termination........................................................................................16
6. PERIODIC REVIEW; OPERATING MEMORANDA; AMENDMENT. .............17
6.1. Periodic Review.................................................................................................17
6.2. Operating Memoranda.....................................................................................17
6.3 Amendment........................................................................................................17
7. COVENANT OF FURTHER ASSURANCES AND FAIR DEALING...................18
7.1. Further Assurances...........................................................................................18
7.2. Covenant of Good Faith and Fair Dealing......................................................18
8. PERMITTED DELAYS. ..............................................................................................18
9. DEFAULT......................................................................................................................18
9.1. Events of Default...............................................................................................18
TABLE OF CONTENTS (cont'd)
Page
temp_B1052F.docx -iii-
9.2. Remedies. ...........................................................................................................19
9.3. Institution of Legal Action................................................................................19
9.4. No Waiver..........................................................................................................19
9.5. Right of Mortgagee To Cure............................................................................20
10. ESTOPPEL CERTIFICATES.....................................................................................20
11. INCORPORATION BY REFERENCE......................................................................20
11.1. Recitals...............................................................................................................20
11.2. Exhibits...............................................................................................................20
12. APPLICABLE LAW. ...................................................................................................20
13. NO JOINT VENTURE, PARTNERSHIP OR THIRD PARTY BENEFICIARY.20
14. ENCUMBRANCES AND RELEASES ON REAL PROPERTY.............................21
14.1. Discretion to Encumber....................................................................................21
14.2. Entitlement to Written Notice of Default........................................................21
14.3. Property Subject to Pro Rata Claims..............................................................21
15. BINDING EFFECT. .....................................................................................................21
15.1. Entirety of Owner Property.............................................................................21
15.2. Owner Property and Agreement Remain Linked..........................................21
15.3. Assignment; Notice; City Consent...................................................................22
16. TERMS AND CONSTRUCTION...............................................................................22
16.1. Severability. .......................................................................................................22
16.2. Entire Agreement..............................................................................................22
16.3. Authority; Counterpart Signature Pages........................................................23
16.4. Time....................................................................................................................23
16.5. Notices. ...............................................................................................................23
16.6. Construction, Number and Gender.................................................................24
TABLE OF CONTENTS (cont'd)
Page
temp_B1052F.docx -iv-
17. INDEMNIFICATION...................................................................................................24
18. RECORDATION BY CITY CLERK..........................................................................25
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EXHIBITS
EXHIBIT A LEGAL DESCRIPTION
EXHIBIT B VICINITY MAP
EXHIBIT C EXISTING DEVELOPMENT IMPACT FEES
EXHIBIT D CONDITIONS OF APPROVAL
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DEVELOPMENT AGREEMENT
BY AND BETWEEN THE
CITY OF LAKE ELSINORE AND T.T. GROUP, INC.
(Pursuant To Government Code
Sections 65864 -65869.5)
This Development Agreement (“Agreement”) is entered into on ___________, 2024,
between Canadian Pacific Land, LLC, a Florida limited liability company, and Strack Farms Land,
LLC, a Delaware limited liability company (“Owner”), and the City of Lake Elsinore, a California
municipal corporation (“City”). Owner and City are sometimes singularly referred to herein as a
“Party” and are collectively referred to herein as the “Parties.”
RECITALS
A. All initially-capitalized words, terms, and phrases used, but not otherwise defined,
in the Recitals shall have the meanings assigned to them in Section 1 of this Agreement, unless the
context clearly indicates otherwise.
B. To strengthen the public planning process, encourage private participation in
comprehensive planning, and reduce the economic risk of development, the legislature of the State
of California adopted the “Development Agreement Act,” Government Code Sections 65864
through 65869.5. The Development Agreement Act authorizes the City to enter into an agreement
with any person having a legal or equitable interest in real property regarding the future
development of such property and to vest certain development rights therein.
C. Pursuant to the Development Agreement Act, the City Council adopted Ordinance
No. 996 (1995) as amended by Ordinance No. 1393 (2018) establishing procedures and
requirements for consideration of development agreements as set forth in LEMC Chapter 19.12
(collectively, the “Development Agreement Ordinance”).
D. On March 22, 2005, the City Council approved Subsequent Environmental Impact
Report (SEIR) (SCH No. 2004071082), Amendment No. 1 to the Tuscany Hills Specific Plan No.
89-3, General Plan Amendment No. 2004-05, Zone Change No. 2004-06, and TTM No. 31370,
subdividing 368 acres into 807 single family residential lots, along with community and
neighborhood parks, basins, lift station and open space located in the northeast portion of the City
commonly known as North Tuscany. On June 13, 2017, the City Council granted a six-year
discretionary extension of TTM 31370 to June 1, 2022. Subsequently, TTM 31370 was statutorily
extended by the provisions of AB 116 to June 1, 2024.
E. TTM 31370 covers property on the south side of Greenwald Avenue, on both sides
of the extension of Summerhill Drive north of the existing Tuscany Hills community, to the west
of Canyon Lake and to the east of Bella Vista Drive (Assessor’s Parcel Nos.: 349-280-025, -028,
-029, -038, -040, -042, -044, -048, -050 and -051; 349-290-017, -018, -026 and -027; 349-390-001
thru -004, -015 and -016).
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F. Owner owns a portion of the land within TTM 31370 consisting of Assessor’s
Parcel Nos.: 349-280-050 and 349-290-026 with approximately 223 referred to herein as the
“Owner Property”. The parcels of land comprising the Owner Property are more particularly
described in the Legal Description (Exhibit “A”) and depicted in the Vicinity Map (Exhibit “B”).
The balance of land within TTM 31370 consisting of Assessor Parcel Numbers lots 349-280-025,
-028, -029, -038, -040, -042, -044, -048, and -051; 349-290-017, -018, and -027; 349-390-001 thru
-004, -015 and -016) with approximately 584 lots are owned by T.T. Group, Inc., a California
corporation.
G. Development of TTM 31370 is impaired by the lack of adequate infrastructure,
particularly roadway improvements providing access to the Owner Property, including the
extension of Summerhill Drive from the southern connection at the terminus of the existing
Summerhill Drive extending northerly to Greenwald Avenue. The Parties desire to continue
discussions regarding the financing and construction of necessary infrastructure improvements and
to vest the Owner’s land use entitlements during these ongoing discussions.
H. On April 16, 2024, the City of Lake Elsinore Planning Commission held a duly
noticed public hearing to consider Owner’s application for this Agreement and recommended to
the City Council approval of this Agreement.
I. On May 14, 2024, the City Council held a duly noticed public hearing to consider
this Agreement and found and determined that this Agreement (a) is consistent with the objectives,
policies, general land uses and programs specified in the City’s General Plan and any applicable
specific plan; (b) is compatible with the uses authorized in, and the regulations prescribed for the
Owner Property and the surrounding area and will not adversely affect the orderly development of
Owner Property or the preservation of property values; (c) is in conformity with public
convenience, general welfare and good land use practices; (d) will have an overall positive effect
on the health, safety and welfare of the residents of and visitors to the City; and (e) constitutes a
lawful, present exercise of the City’s police power and authority under the Development
Agreement Act and Development Agreement Ordinance.
J. Based on the findings set forth in Recital I, the City Council entered into this
Agreement pursuant to and in compliance with the requirements of the Development Agreement
Act and the Development Agreement Ordinance; and did introduce for first reading Ordinance No.
__ (the “Enabling Ordinance”). On ________, 2024 the City Council conducted the second
reading and adoption of the Enabling Ordinance did thereby approve this Agreement.
K. The foregoing Recitals constitute a substantive part of this Agreement, and the
Parties have materially relied upon them as such in their respective determinations to execute this
Agreement.
AGREEMENT
NOW, THEREFORE, in consideration of the mutual terms, obligations, promises,
covenants and conditions contained herein and for other valuable consideration, the sufficiency of
which is hereby acknowledged, the Parties, and each of them, agree as follows:
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1. DEFINITIONS
1.1. “Agreement” means this Development Agreement, including the attached
Exhibits. The term “Agreement” shall include any Operating Memoranda and/or amendment
properly approved and executed pursuant to Section 6.2 and 6.3, respectively.
1.2. “Applicable Rules” means this Agreement, the Existing Development
Approvals, the Existing Land Use Regulations, the Existing Development Impact Fees, and the
Development Agreement Ordinance.
1.3. “Building Codes” means standard uniform codes adopted by the City
governing construction, including without limitation, the Housing Code, the Building Code, the
Energy Code, the Green Building Code, the Plumbing Code, the Electrical Code, the Mechanical
Code, and the Fire Code (including amendments thereto by the Riverside Fire Authority), as
modified and amended by official action of the City as set forth in Title 15 of the LEMC as may
be amended from time to time.
1.4. “CEQA” means the California Environmental Quality Act of 1970
(California Public Resources Code § 21000 et seq.) and the state CEQA Guidelines (California
Code of Regulations, Title 14, § 15000 et seq.).
1.5. “City” means the City of Lake Elsinore, a municipal corporation.
1.6. “City Council” means the duly elected City Council of the City.
1.7. “City Manager” means the City Manager of the City and his or her
authorized designees.
1.8. “Conditions of Approval” means the conditions imposed by the City in
connection with the approval and extension of Tentative Tract Map No. 31370, including the
mitigation measures identified in the Supplemental Environmental Impact Report (SCH No.
2004071082) and its Mitigation Monitoring Program which are collectively attached as Exhibit
“D.” Conditions of approval and any applicable mitigation measures imposed in connection with
any Subsequent Approval shall be appended to Exhibit “D” and shall prevail in the event of a
conflict with the original Conditions of Approval to the Existing Development Approvals.
1.9. “Day” refers to a calendar day, unless otherwise specified.
1.10. “Dedication” and “Dedicate” shall mean Owner’s grant of real property or
an interest therein to the City or another governmental, public agency or non-profit entity for a
public purpose, including, without limitation, dedication of right-of-way to the City for the public
rights of way together with construction, drainage and slope easements associated therewith.
1.11. “Development” means the construction and/or installation of structures,
improvements and facilities on the Owner Property as set forth in this Agreement including,
without limitation, grading, the construction of infrastructure and public facilities (whether located
within or outside the Owner Property), the construction of buildings and the installation of
landscaping.
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1.12. “Development Agreement Act” means Government Code Sections 65864
through 65869.5.
1.13. “Development Agreement Fee” is defined in Section 3.3 of this Agreement.
1.14. “Development Agreement Ordinance” means Ordinance No. 996 pursuant
to which the City has adopted procedures and requirements for considering, approving and
administering development agreements as codified in Section 19.12.005, et seq. of the LEMC and
as may be amended from time to time.
1.15. “Development Exaction” shall mean and include Development Impact
Fees, Dedications, Reservations, and any other obligation to pay money, construct facilities, or
provide land as a condition of Development or of obtaining a Development Approval.
1.16. “Development Impact Fees” means any impact fees, linkage fees, or
exactions, and other similar impact fees or charges (whether collected as a condition to issuance
of grading and/or building permits, or otherwise) imposed by the City on and in connection with
Development pursuant to Existing Land Use Regulations. Development Impact Fees do not
include (a) Processing Fees and Charges; (b) impact fees, linkage fees, exactions, assessments or
fair share charges or other similar fees or charges imposed by other governmental entities
regardless of whether the City is required to collect or assess such fees pursuant to applicable laws
(e.g., school district impact fees pursuant to Government Code Section 65995), or (c) general or
special taxes and assessments.
1.17. “Effective Date” means the date this Agreement and the Enabling
Ordinance are approved by the City Council.
1.18. “Enabling Ordinance” is defined in Recital J.
1.19. “Existing Development Approvals” means Tentative Tract Map No. 31370
and the Tuscany Hills Specific Plan No. 89-3 as amended by Amendment No. 1, and any other
entitlement relating to the Development of the Owner Property approved by the City prior to the
Effective Date in compliance with CEQA and subject to the Conditions of Approval and the City
Council’s findings and determinations with respect thereto.
1.20. “Existing Development Impact Fees” means the categories of Development
Impact Fees in effect as of the Effective Date as set forth in Exhibit “C” to be imposed on the
Development of the Owner Property during the Term in such amount as in effect at the time such
Development Impact Fees are paid.
1.21. “Existing Land Use Regulations” means the Land Use Regulations in effect
as of the Effective Date applicable to the Development of the Owner Property during the Term
except as otherwise provided by the Reserved Powers set forth in Section 4.2 et seq.
1.22. “Government Code” means the California Government Code.
1.23. “Indemnitees” means the City and its elected and appointed officials,
employees, volunteers, agents, and representative.
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1.24. “Land Use Regulations” means the City General Plan, the Tuscany Hills
Specific Plan, and all ordinances, resolutions, codes, rules, regulations and official policies of the
City adopted by ordinance or resolution governing the development and use of land, including
zoning, permitted uses, density or intensity of use, subdivision requirements, the maximum height
and size of proposed buildings, design, improvement and construction standards and
specifications, and the provisions for Development Exactions. "Land Use Regulations" does not
include any City ordinance, resolution, code, rule, regulation or official policy, governing: (a) the
conduct of businesses, professions, and occupations except subdivisions; (b) taxes and
assessments; (c) the control and abatement of nuisances; and/or (d) the exercise of the power of
eminent domain.
1.25. “Law” means any official legislative enactment of a governmental agency,
public body, or court that binds the Parties. "Laws" shall include but not be limited to case law,
constitutional provisions, statutes, ordinances, initiatives, resolutions, policies, orders, rules, and
regulations. A matter is a Law regardless of whether it was imposed by a legislative body (such
as the City Council or State Legislature), an administrative agency (such as the Public Utilities
Commission), the electorate (as by initiative or referendum), court (by judgment, order or opinion),
or any other official body (such as the Planning Commission), and regardless of whether it is
federal, state, or local.
1.26. “LEMC” means the Lake Elsinore Municipal Code as amended from time
to time.
1.27. “Owner” means T.T. Group, Inc., a California corporation and its permitted
successors in interest to the Owner Property, and/or permitted assignees of Owner's rights under
this Agreement.
1.28. “Owner Property” means the real property which is the subject of this
Agreement and which is described in Recital F, and more particularly described in Exhibit “A”
and depicted in Exhibit “B” attached hereto and incorporated by this reference.
1.29. “Parties” means the Owner and the City.
1.30. “Periodic Review” is defined in Section 6.1.
1.31. “Processing Fees and Charges” means all processing fees and charges
required by the City in connection with new construction, including, but not limited to,
Development Approval application fees, plan-check and inspection fees, fees for monitoring
compliance with any Development Approval or for monitoring compliance with environmental
impact mitigation measures. “Processing Fees and Charges” shall not include Development Impact
Fees or Development Exactions.
1.32. “Project” means the Development of the Owner Property for residential and
related ancillary uses and open space uses, proposed by the Owner to include approximately 584
detached single-family homes as set forth in the Applicable Rules, including Conditions of
Approval.
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1.33. “Reservation” means the setting aside of land for future public use, without
any legal right, title or interest being conveyed other than the promise to convey an interest upon
payment of fair market value for such land.
1.34. “Reserved Powers” means the rights and authority excluded from the
assurances and rights provided to Owner under this Agreement and reserved to the City under
Section 4.3 of this Agreement.
1.35. “Subsequent Approvals” shall mean and include any future entitlements,
including residential design review and any land use permits, variance, conditional use permit,
building permits, grading permits, encroachment permits, landscape and signage plan, subdivision
tract maps, parcel maps, lot line adjustments, and other similar permits, required in connection
with the Development of the Owner Property approved by the City in compliance with CEQA and
the City Council’s findings and determinations with respect thereto.
1.36. “Summerhill Drive Extension Project” means the construction of two lanes
of Summerhill Drive from the existing terminus at the south extending northerly to Greenwald
Avenue in conformance with the final alignment and final plans approved by the City.
1.37. “Term” is defined in Section 5.1.
2. DEVELOPMENT OF THE OWNER PROPERTY.
2.1. Uses.
The Owner Property may be used in accordance with the Existing
Development Approvals, all Subsequent Approvals, and the Existing Land Use Regulations.
2.2. Intensity.
Permitted density and intensity of use vested hereby shall be the maximum
permitted by the Existing Development Approvals, all Subsequent Approvals, and the Existing
Land Use Regulations.
2.3. Size.
The maximum height and size of buildings vested hereby shall be as set
forth in the Existing Development Approvals, all Subsequent Approvals, and the Existing Land
Use Regulations.
2.4. Slopes.
The City shall encourage and allow the use of the latest technology for spray
seeding and drip irrigation of slopes consistent with applicable Laws.
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2.5. Tentative Subdivision Map Extensions and Modifications.
In accordance with Government Code §66452.6(a)(1), Tentative, Tentative
Tract Map No. 31370 in connection with Development of the Owner Property, shall be granted an
extension of time for the greater of the Term of this Agreement (in which case no such extension
application to extend the expiration date of the tentative map need be filed) or such time approved
in accordance with State law or the Existing Land Use Regulations.
To the extent permitted by applicable Laws, including the Subdivision Map
Act (Government Code §66410 et seq.), minor modifications to existing tentative tract maps shall
be reviewed by the City Engineer or Community Development Director without a public hearing
for matters such as moving streets, changes to pad elevations, re-alignment and loss of lots, and
related changes that do not increase the number of lots, when such changes are required for
compliance with (i)WQMP or drainage related re-design requirements, (ii) MSHCP feasibility
reconfiguration, (iii) fire department requirements and/or (iv) other applicable Laws.
2.6. Timing of Development.
In order to avoid the result in Pardee Construction Co. v. City of Camarillo,
37 Cal.3d 465 (1984), the City and Owner agree that Owner shall have the right, without
obligation, to develop the Project in such order and at such rate and times as Owner deems
appropriate within the exercise of its subjective business judgment, subject only to the Existing
Development Approvals. Furthermore, the City shall not (whether by City Council action,
initiative or otherwise) limit the rate or timing of Development of the Owner Property except as
expressly authorized by the Existing Development Approvals. Nothing in this section shall be
construed to limit the City’s right to require that Owner timely provide all Reservations,
Dedications and public improvements in accordance with the Existing Development Approvals
and this Agreement.
3. DEVELOPMENT EXACTIONS.
3.1. Reservations, Dedications and Improvements; Summerhill Drive Extension
Project Rights of Way.
Reservations and Dedications and the provision of improvements and
facilities for public purposes shall be those, and only those, required by the Conditions of Approval
adopted by the City in connection with the Existing Development Approvals any and all
Subsequent Approvals, the Existing Land Use Regulations, and/or this Agreement, including the
Summerhill Drive Extension Project.
To accelerate the construction of the Summerhill Drive Extension Project,
the City has advanced funds toward the cost of engineering and design (the “City Advance”). To
that end, City has expended approximately Four Hundred Ten Thousand Four Hundred Forty-Two
Dollars ($410,442) pursuant to the following agreements: 1) a Professional Services Agreement
with Glenn Lukos Associates, Inc. to provide biological and regulatory consulting services for the
Summerhill Drive Extension Project, including preparation of a General Biological Report and a
Jurisdictional Delineation Report to be used for permitting purposes, and 2) a Professional Services
Agreement with Hunsaker and Associates, Inc. to provide civil engineering design services,
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including traffic signal, hydrology, storm drain improvements, grading, geotechnical and all other
engineering disciplines required to complete a constructible design of the Summerhill Drive
Extension Project.
No later than ninety (90) days after the later of (a) the date of approval by
City of the final alignment and final plans for the Summerhill Drive Extension Project or (b) the
date of approval of this Development Agreement, Owner shall at no cost to the City make an
irrevocable offer of dedication of fee interest in the right of way for the Summerhill Extension
Project located on the Owner Property together with construction, slope and drainage easements
as required by City in connection with the Summerhill Drive Extension Project. Owner may
reserve a utility and or other infrastructure easement(s) within the dedicated right of way so long
as such reservations do not interfere with the construction, completion and operation of the
Summerhill Drive Extension Project.
In the event City obtains funding and completes construction of the
Summerhill Drive Extension Project prior to the Owner’s development of the Project, Owner shall
reimburse City Owner’s fair share contribution of the City’s Advance and cost of construction of
the Summerhill Drive Extension Project prior to issuance by City of the first building permit (not
including model homes) for the Project.
If City does not obtain the necessary funding and/or complete the
construction of the Summerhill Extension Project prior to the Owner’s development of the Project,
then Owner shall complete the construction of the Summerhill Drive Extension Project prior to
issuance by City of the first building permit (not including model homes) for the Project. During
the construction of the Summerhill Extension Project, the City and the Owner will exercise best
efforts to coordinate with the construction schedules for EVMWD sewer and water facilities and
other infrastructure facilities so as to minimize public inconvenience and disruption of traffic and
maximize the efficiency of in-road construction projects.
3.2. Owner’s Obligation to Pay Fees.
During the Term of this Agreement, Owner shall pay all Existing
Development Impact Fees and all Processing Fees and Charges imposed by City and any other
fees and charges imposed by any other regulatory agency with jurisdiction over the Owner
Property within the time and in the manner prescribed by such agency or the City, and shall receive
such credits and/or reimbursements for improvements constructed in accordance with the
provisions set forth in the LEMC. Owner shall pay Existing Development Impact Fees and
Processing Fees and Charges at the prevalent rate in effect as of the date such fees and charges are
paid.
3.3. Development Agreement Fees.
Upon the City’s issuance of each building permit for each residential
dwelling unit to be constructed within the Project by Owner, Owner shall pay to City a
Development Agreement Fee in the amount of Five Thousand Five Hundred Dollars ($5,500)
(each, a “DAG Fee” and collectively, “DAG Fees”). DAG Fees shall be deposited by City into a
capital facilities fund to be used toward the construction of capital facilities as determined by City
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in its sole and absolute discretion. If a Community Facilities District (“CFD”) special tax is
requested by the Owner and approved by the City Council acting in its reasonable discretion and
in accordance with applicable laws pursuant to Section 3.6 of this Agreement, DAG fees may be
paid out of the CFD or reimbursed from the CFD. Owner’s obligation to pay DAG Fees shall
survive termination of this Agreement.
3.4. Affordable Housing Fee.
Upon issuance of each residential building permit for development on the
Owner Property, Owner shall pay to City an affordable housing fee of $2.00 per habitable square
foot of residential development (“Affordable Housing Fee”). Owner’s obligation to pay the
Affordable Housing Fee shall survive termination of this Agreement.
3.5. Participation in CFD 2015-1 and CFD 2015-2.
Owner agrees to annex the Owner Property into City of Lake Elsinore
Community Facilities District No. 2015-1 (Law Enforcement, Fire and Paramedic Services)
(“CFD No. 2015-1”) or into such successor district formed to fund law enforcement, fire and
paramedic services pursuant to the Mello-Roos Community Facilities Act of 1982, as amended,
and to pay any special taxes associated therewith to offset the annual negative fiscal impacts of the
Owner’s project on public safety operations in the City. For information purposes only, the special
tax rate in effect in Community Facilities District No. 2015-1 as of the Effective Date is
approximately Seven Hundred Seventy and 53/100 Dollars ($770.53) per year for each single-
family residence and Four Hundred Seventy-One and 32/100 Dollars ($471.32) per year for each
multi-family residential unit, subject to an automatic annual adjustment each July 1 equal to the
greater of i) the percentage increase in the Consumer Price Index (All Items) for Los Angeles-
Riverside-Orange County (1982-84=100) since the beginning of the preceding fiscal year, or ii)
four percent (4%). Special taxes shall be levied on a parcel-by-parcel basis, commencing at the
time of issuance of building permits for the Owner Property. The Owner may propose alternative
equivalent financing mechanisms to fund the annual negative fiscal impacts of the Development
on the Owner Property with respect to Law Enforcement, Fire and Paramedic Services the
sufficiency of which shall be evaluated by the City Manager. Owner shall make a non-refundable
deposit of Fifteen Thousand Dollars ($15,000), or at the current rate in place at the time of
annexation, toward the cost of annexation, formation or other mitigation process, as applicable.
Owner agrees to annex the Owner Property into City of Lake Elsinore
Community Facilities District No. 2015-2 (Maintenance Services) (“CFD No. 2015-2”) or such
successor district formed to fund the on-going operation and maintenance of the (i) public right-
of-way, including street sweeping, (ii) the public right-of-way landscaped areas and parks to be
maintained by the City; and (iii) for street lights in the public right-of-way for which the City will
pay for electricity and a maintenance fee to Southern California Edison, including streets,
parkways, open space and public storm drains constructed within the Owner Property and federal
NPDES requirements pursuant to the Mello-Roos Community Facilities Act of 1982, as amended,
and to pay any special taxes associated therewith to fund such on-going operation and maintenance
costs to offset the annual negative fiscal impacts of the Owner’s project. The special tax shall be
levied on a parcel-by-parcel basis, commencing at the time of issuance of building permits for the
Owner Property subject to an automatic annual adjustment each July 1 equal to the greater of i)
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the percentage increase in the Consumer Price Index (All Items) for Los Angeles-Riverside-
Orange County (1982-84=100) since the beginning of the preceding fiscal year, or ii) two percent
(2%). The Owner may propose alternative equivalent financing mechanisms to fund the annual
negative fiscal impacts of the Development on the Owner Property with respect to Maintenance
Services the sufficiency of which shall be evaluated by the City Manager. Fulfillment of applicable
Maintenance Services by a homeowner’s association under CC&R’s for the Owner Property are
an acceptable means of equivalent financing mechanism for Maintenance Services; provided
however, that the annexation to CFD No. 2015-2 or into such successor district shall be complete,
the obligations established thereunder shall remain dormant and special taxes shall not be levied
pursuant thereto unless and until activated by the City upon a determination that the homeowner’s
association has defaulted in its obligation to satisfactorily perform the Maintenance Services.
Owner shall make a non-refundable deposit of Fifteen Thousand Dollars ($15,000), or at the
current rate in place at the time of annexation, toward the cost of annexation, formation or other
mitigation process, as applicable.
Notwithstanding the foregoing, if all or any portion of the Owner Property
is already annexed into an existing services community facilities district or other financing district
for Law Enforcement, Fire and Paramedic Services or Maintenance Services which overlaps with
CFD 2015-1 and/or CFD 2015-2 as to services to be funded, City shall assist Owner in having
such CFD dissolved and shall pay the administrative costs of de-annexation from such other
financing district in order to enable Owner to annex into CFD 2015-1 and/or CFD 2015-2 with the
other participating Owners to avoid duplication of services.
3.6. Financing of Public Facilities; Future CFDs.
City, in cooperation with and at the request of Owner and submittal of the
requisite application and formation deposit (including deposit for any non-contingent professional
services related to the issuance of bonds), shall initiate and use its commercially reasonable and
diligent efforts to cause the City to establish a Mello-Roos Community Facilities District (“CFD”)
to finance public improvements and facilities to be constructed and installed in conjunction with
the Development of the Owner Property in accordance with the provisions of the Mello-Roos
Community Facilities Act of 1982 (Government Code §53311 et seq.), as amended (“Mello Roos
Act”).
The parameters of the CFD(s) shall be as follows or as otherwise required
to meet minimum requirements of California law or City policy, as the same may be amended
from time to time: (i) a minimum value-to-lien ratio of 3 to 1; (ii) a total effective tax rate (taking
into account all ad-valorem taxes, assessments, and special taxes expected to be levied on the end-
user, including potential participation by other public agencies by way of a joint community
facilities agreement for facilities and/or fees of such other public agencies) not to exceed two
percent (2%) of the estimated residential home prices at the time of CFD formation; provided that
the City in its sole discretion may impose in the rate and method of apportionment appropriate
provisions to reduce taxes at bond issuance to below 2% or reduce the amount of bonds issued in
order to ensure tax rates not above 2%; (iii) a debt service coverage ratio equal to 110% (unless
adequate credit enhancement is provided to the reasonable satisfaction of the City to allow for a
lower ratio); (iv) an annual escalator on the CFD special tax and debt service not to exceed two
percent (2%) per year (and subject to appropriate increases in the special tax upon defaults by other
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properties within the CFD); and (v) administrative expenses shall not exceed Thirty-Five
Thousand Dollars ($35,000) per year, adjusted annually by the greater of i) the percentage increase
in the Consumer Price Index (All Items) for Los Angeles-Riverside-Orange County (1982-
84=100) since the beginning of the preceding fiscal year, or ii) two percent (2%).
The City shall at all times have discretion as to factors relating to the
issuance of bonds in the prudent management of the issuance of tax-exempt securities under laws
and conditions then applicable, including, but not limited to, then-applicable marketing conditions
and sound municipal financing practices. Prior to the issuance of any CFD bonds, the CFD shall
levy special taxes on all parcels of developed property (as defined in the applicable rate and method
of apportionment) at the assigned special tax rates and use such funds to pay for the costs of
administering the CFD and for the costs of acquiring eligible public improvements or funding
Existing Development Impact Fees (as provided for in the applicable rate and method of
apportionment and CFD formation documents). The City and Owner agree that the first priority
for funding from the proceeds of special taxes and bonds pursuant to such facilities CFDs shall be
reimbursement for eligible public improvements; provided, however that the City agrees that
payment of Existing Development Impact Fees shall be eligible for CFD funding so long as the
City has a reasonable expectation of expending bond proceeds on the corresponding public
improvements within three years of the receipt of such funds. In addition, the City agrees to
provide reasonable cooperation with other public agencies and to exercise reasonable discretion in
evaluating proposed joint community facilities agreement(s) for facilities and/or fees of such other
public agencies.
3.7. Compliance with Laws.
Owner shall carry out the design and construction of public improvements
in conformity with all applicable Laws, including without limitation, public bidding and
construction requirements in accordance with applicable City requirements and applicable federal
and state labor Laws which shall include, if appliable, Labor Code § 1720 et seq., including without
limitation the payment of prevailing wage and maintenance of payroll records in accordance with
Labor Code §§ 1776 and 1812, and employment of apprentices in accordance with Labor Code §
1777.5. Owner further agrees that all public work (as defined in Labor Code § 1720) performed
pursuant to this Agreement, if any, shall comply with the requirements of Labor Code § 1770 et
seq. In all bid specifications, contracts and subcontracts for work that is subject to the prevailing
wage requirements of Labor Code §1720 et seq., Owner (or its general contractor, in the case of
subcontracts) shall obtain the general prevailing rate of per diem wages and the general prevailing
rate for holiday and overtime work in this locality for each craft, classification or type of worker
needed to perform the work, and shall include such rates in the bid specifications, contract or
subcontract.
3.8. Prevailing Wage Indemnification.
Owner shall indemnify, protect, defend and hold harmless the Indemnitees,
with counsel reasonably acceptable to the City, from and against any and all loss, liability, damage,
claim, cost, expense and/or "Increased Costs" (including reasonable attorneys' fees, court and
litigation costs, and fees of expert witnesses) which, in connection with the Development, results
or arises from the following: (1) the noncompliance by Owner of any applicable Law, including,
without limitation, any applicable federal and/or State labor Laws (including, without limitation,
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if applicable, the requirement to pay State prevailing wages and to hire apprentices); (2) the
implementation of Section 1781 of the Labor Code, as the same may be amended from time to
time, or any other similar Law; and/or (3) failure by Owner to provide any required disclosure or
identification as required by Labor Code Section 1781, as the same may be amended from time
to time, or any other similar Law. It is agreed by the Parties that, in connection with the
Development, including, without limitation, any and all public works (as defined by applicable
Law), Owner shall bear all risks of payment or non-payment of prevailing wages and hiring of
apprentices under California Law and/or the implementation of Labor Code Section 1781, as the
same may be amended from time to time, and/or any other similar Law. "Increased Costs," as used
in this Section 3.8, shall have the meaning ascribed to it in Labor Code Section 1781, as the same
may be amended from time to time. The foregoing obligations set forth in this Section 3.8 shall
survive termination of this Agreement and shall terminate upon the expiration of all statutes of
limitation applicable to claims with respect to which Owner is required to indemnify the
Indemnitees pursuant to this Section 3.8.
4. VESTED RIGHTS.
4.1. Development of the Owner Property.
During the Term and subject to the Reserved Powers, Owner shall have the
vested right to develop and use the Owner Property subject to the terms and conditions of the
Applicable Rules and any and all Subsequent Approvals as set forth in this Agreement. The Parties
agree and acknowledge that this Agreement itself does not authorize Owner to undertake any
Development of the Owner Property nor does this Agreement require the City to approve any
Subsequent Approval; provided, however, except as otherwise set forth in this Agreement, the City
shall process any Subsequent Approval in accordance with the Existing Land Use Regulations and
this Agreement. In the event of conflict between the Existing Development Approvals and this
Agreement, this Agreement shall prevail.
Before any Development activity can occur, the Owner shall have satisfied
the applicable Conditions of Approval of the Existing Development Approvals for the Owner
Property and obtained any necessary Subsequent Approvals for the Owner Property pursuant to
the Applicable Rules.
4.2. No New Development Impact Fees.
Owner acknowledges that, in the absence of this Agreement, the
Development of the Owner Property would be subject to all Development Impact Fees in place at
the time any building permits are issued by the City, or as otherwise required by the LEMC. As
consideration for the Owner’s obligations hereunder and the benefits to the City, commencing on
the Effective Date and continuing during the Term of this Agreement, the Development Impact
Fees imposed by the City with respect to the Development of the Owner Property shall be the
categories of Existing Development Impact Fees as described and set forth in Exhibit “C.”
Upon expiration of the Term, or earlier termination of this Agreement
pursuant to Section 5.2, Development of the Owner Property shall be subject to any and all
Development Impact Fees and Development Exactions imposed by the City in accordance with
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any applicable Law and/or the LEMC as amended from time to time. Nothing in this Agreement
is intended to prevent the imposition of fees or other exactions by any governmental entity not
affiliated with the City.
4.3. Reserved Powers.
Although the Existing Land Use Regulations and Existing Development
Impact Fees will govern Development of the Owner Property, this Agreement will not prevent and
shall not be construed to limit the authority of City to apply new rules, regulations and policies set
forth in this Section 4.3 et seq. (“Reserved Powers”) in connection with the Development of the
Owner Property.
4.3.1. Processing Fees and Charges.
Processing Fees and Charges as defined in Section 1.31 shall be paid
by Owner at the prevalent rate at the time of payment.
4.3.2. Procedural Regulations.
Procedural regulations relating to hearing bodies, petitions,
applications, notices, findings, records, hearings, reports, recommendations, appeals and any other
matter of procedure.
4.3.3. Building Codes.
Regulations, policies and rules governing engineering and
construction standards and specifications including without limitation, the Building Codes as
defined in Section 1.4 and similar codes and any local amendments adopted by the City.
4.3.4. Non-Conflicting Regulations.
New, rules, regulations and policies which do not conflict with the
Existing Land Use Regulations. The term "do not conflict" means new rules, regulations, policies
which: (a) do not modify the permitted land uses, the density or intensity of use, the phasing or
timing of development, the maximum height and size of proposed buildings on the Owner
Property, provisions for dedication of land for public purposes and Development Exactions, except
as expressly permitted elsewhere in this Agreement, and standards for design, development and
construction on the Owner Property; (b) do not prevent Owner from obtaining any Subsequent
Approvals, including, without limitation, all necessary approvals, permits, certificates, and the
like, at such dates and under such circumstances as Owner would otherwise be entitled pursuant
to the Existing Land Use Regulations; or (c) do not prevent Owner from commencing, prosecuting,
and finishing grading of the land, constructing public and private improvements, and occupying
the Owner Property, or any portion thereof, all at such dates and schedules as Owner would
otherwise be entitled to do so by Development Approvals, Subsequent Approvals, and the Existing
Land Use Regulations.
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4.3.5. Certain Conflicting Regulations.
Regulations in conflict with the Existing Land Use Regulations,
including General Plan land use, zoning and development standards, if the application of such
regulations to the Development of the Owner Property has been consented to in writing by the
Owner. Application of such conflicting regulations may require Owner to obtain Subsequent
Approvals.
4.3.6. Regulations Needed to Protect the Health and Safety.
Any City ordinance, resolution, regulation, or official policy which
is reasonably necessary to protect persons from conditions dangerous to their health and/or safety;
are permissible provided that any such regulations must constitute a valid exercise of the City’s
police power, applied and enforced in a uniform, consistent and nondiscriminatory manner.
4.3.7. Regulations by Other Public Agencies.
The Parties acknowledge that other public agencies, not within the
control of the City, possess authority to regulate aspects of Development separately from the City.
This Agreement does not limit the authority of such other public agencies. Nothing contained in
this Agreement shall be construed as limiting, in any way, the authority of such other public
agencies to impose any new or increased development impact fees or other fees or charges, even
though such impositions may be collected by the City.
4.3.8. General and Special Taxes.
Owner shall pay general or special taxes, including but not limited
to, property taxes, sales taxes, transient occupancy taxes, business taxes, which may be applied to
the Owner Property or to businesses occupying the Owner Property; provided, however, that the
tax is of general applicability Citywide and does not burden the Owner Property disproportionately
when compared to the development of other residential uses within the City. Nothing in this
Agreement prohibits the adoption and application of a CFD special tax requested by the Owner
and approved by the City in accordance with Section 3.6 of this Agreement.
4.3.9. End Users.
Laws of the City that impose, levy, alter or amend fees, charges, or
Land Use Regulations relating solely to post-Development conduct of consumers or end users,
such as, without limitation, trash can placement, service charges and limitations on vehicle
parking, are permissible so long as those later enactments are applied and enforced in a uniform,
consistent and non-discriminatory manner and do not impair Owner's vested rights to develop the
Owner Property consistent with the Applicable Rules.
4.4. Subsequent Actions and Approvals.
The City shall accept and process with reasonable promptness all completed
applications for any Subsequent Approval (including tentative and final tract maps, improvement
plans, and decisions relating to the design and location of public improvements on Owner
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Property) in accordance with the Existing Land Use Regulations; provided, however, this
Agreement will not prevent the City, in subsequent actions applicable to the Owner Property, from
applying new rules, regulations and policies which do not conflict with the Existing Land Use
Regulations, nor will this Agreement prevent the City from denying or conditionally approving
any Subsequent Approval on the basis of such Existing Land Use Regulations or such new rules,
regulations or policies. Subsequent Approvals shall, upon approval and as may be amended from
time to time, become part of the Applicable Rules and the Owner shall have a “vested right,” as
that term is defined under California law, in and to such Subsequent Approvals by virtue of this
Agreement.
4.5. State and Federal Laws.
If State or Federal laws or regulations enacted after the Effective Date
hereof, prevent or preclude compliance with one or more of the provisions of this Agreement, such
provisions of this Agreement will be modified or suspended as may be necessary to comply with
such State or Federal laws or regulations; provided, however that this Agreement will remain in
full force and effect to the extent it is not inconsistent with such State or Federal laws or regulations
and to the extent such laws or regulations do not render such remaining provisions impractical to
enforce.
4.6. Police Power and Taxing Power.
The City will not impose, or enact any additional Development Exactions,
Conditions of Approval or regulations through the exercise of either the police power or the taxing
power with respect to the Development of the Owner Property except as provided in the Existing
Land Use Regulations or except as provided in the Reserved Powers set forth in Section 4.3 of this
Agreement.
4.7. Supersedure by Subsequent Laws.
If any federal or state law, made or enacted after the Effective Date prevents
or precludes compliance with one or more provisions of this Agreement, then the provisions of
this Agreement shall, to the extent feasible, be modified or suspended as may be necessary to
comply with such new law. Immediately after enactment or promulgation of any such new law,
City and Owner shall meet and confer in good faith to determine the feasibility of any such
modification or suspension based on the effect such modification or suspension would have on the
purposes and intent of this Agreement. Owner and City shall have the right to challenge the new
law preventing compliance with the terms of this Agreement, and in the event such challenge is
successful, this Agreement shall remain unmodified and in full force and effect. At Owner’s sole
option, the term of this Agreement may be extended for the duration of the period during which
such new law precludes compliance with the provisions of this Agreement.
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5. DURATION OF AGREEMENT.
5.1. Term.
This Agreement shall commence as of the Effective Date and, unless earlier
terminated in accordance with Section 5.2 or another provision hereof, shall automatically expire
on the fifth (5th) anniversary thereof (the “Term”).
5.2. Termination.
This Agreement shall be deemed terminated and of no further effect upon
the occurrence of any of the following events set forth in this Section 5.2 et seq.
a. Expiration of the Term.
b. Entry of a final judgment setting aside, voiding or annulling the
adoption of the Enabling Ordinance.
c. The adoption of a referendum measure overriding or repealing the
Enabling Ordinance. Owner acknowledges that, pursuant to Article 2, Section 11 of the California
Constitution and California Elections Code Section 9235, et seq. (collectively, the “Referendum
Laws”), the electors of the City may, within thirty (30) days after adoption of the Enabling
Ordinance, file a petition in accordance with Elections Code Section 9237 to require the City to
either repeal such ordinance or hold an election to obtain voter approval of such Enabling
Ordinance and this Agreement. In the event a valid referendum petition challenging the validity of
the Enabling Ordinance is filed in accordance with the Referendum Laws, the City may, in its sole
and absolute discretion, either (1) terminate this Agreement or (2) submit the Enabling Ordinance
to the voters for approval in accordance with the Referendum Laws.
d. Termination of this Agreement based on any default of any Party
and following the termination proceedings required by Section 9 et seq. of this Agreement.
5.3. Effect of Termination.
Termination of this Agreement by one Party due to the default of the other
Party in accordance with the provisions of Section 9 et seq. will not affect any right or duty
emanating from any then-existing Development Approval and the Conditions of Approval related
thereto with respect to the Owner Property, but the rights and obligations of the Parties will
otherwise cease as of the date of such termination. If the City terminates this Agreement because
of a default of the Owner, then the City will retain any and all benefits including, without
limitation, money or land received by the City hereunder before termination. Notwithstanding the
foregoing, the following obligations shall survive any termination of this Agreement: (i) Owner to
pay the Development Agreement Fee and the Affordable Housing Fee as set forth in Sections 3.3
and 3.4, respectively, and (ii) to indemnify the City as set forth in Section 17.
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6. PERIODIC REVIEW; OPERATING MEMORANDA; AMENDMENT.
6.1. Periodic Review.
City shall review this Agreement annually (“Periodic Review”) on or before
the anniversary of the Effective Date. During each Periodic Review, Owner is required to
demonstrate good faith compliance with the terms of this Agreement, and shall furnish such
reasonable evidence of good faith compliance as the City, in the exercise of its reasonable
discretion, may require. Such Periodic Review shall be conducted administratively by the City
Manager and any appropriate department heads designated by the City Manager to perform such
Periodic Review. The City Manager shall report the results of such Periodic Review to the City
Council within thirty (30) days after the conclusion thereof. No public hearing shall be held by
the City Manager or City Council with regard to such Periodic Review; provided, however, that
the City Council and/or the Owner shall have the right to appeal the City Manager’s findings to
the City Council, in which case Owner shall have the right to request a public hearing on the matter.
City shall notify Owner in writing of the date for review at least thirty (30) days prior thereto. The
City’s failure to review the Owner’s compliance with this Agreement, at least annually, will not
constitute or be asserted by either Party as a breach by the other Party. The requirement for a
Periodic Review shall not be deemed to modify or restrict Owner’s rights under Section 2.6 to
develop the Project in such order and at such rate and times as Owner deems appropriate in view
of market conditions and within the exercise of its subjective business judgment, subject only to
the Existing Development Approvals.
6.2. Operating Memoranda.
The provisions of this Agreement require a close degree of cooperation
between the City and the Owner. The Development of the Owner Property may demonstrate that
clarifications to this Agreement and the Existing Land Use Regulations are appropriate with
respect to the details of performance of the City and the Owner. To the extent allowable by Law,
the Owner shall retain a certain degree of flexibility as provided herein with respect to all matters,
items and provisions covered in general under this Agreement, except for those which relate to the
(i) term; (ii) permitted uses; or (iii) density or intensity of use. When and if the Owner finds it
necessary or appropriate to make changes, adjustments or clarifications to matters, items or
provisions not enumerated in (i) through (iii) above, the Parties shall effectuate such changes,
adjustments or clarifications through operating memoranda (the “Operating
Memoranda”) approved by the Parties in writing which reference this Section 6.2. Operating
Memoranda are not intended to constitute an amendment to this Agreement but mere ministerial
clarifications; therefore public notices and hearings shall not be required. The City Manager shall
be authorized, upon consultation with, and approval of, the Owner, to determine whether a
requested clarification may be effectuated pursuant to this Section or whether the requested
clarification is of such character to constitute an amendment to this Agreement which requires
compliance with the provisions of Section 6.3 below.
6.3 Amendment.
Subject to the notice and hearing requirements of the Government Code,
this Agreement may be modified or amended from time to time only with the written consent of
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the Owner and the City or their successors and assigns in accordance with the provisions of the
Development Agreement Ordinance and the Development Agreement Act.
7. COVENANT OF FURTHER ASSURANCES AND FAIR DEALING.
7.1. Further Assurances.
Each Party covenants on behalf of itself and its successors and assigns to
take all actions and do all things, and to execute with acknowledgments or affidavits if required,
any and all documents and writings that may be necessary or proper to achieve the purposes and
objectives of this Agreement. Each Party will take all necessary measures to see that the provisions
of this Agreement are carried out in full.
7.2. Covenant of Good Faith and Fair Dealing.
Except as may be required by Law, neither Party will do anything which
will have the effect of harming or injuring the right of the other Party to receive the benefits of this
Agreement and each Party will refrain from doing anything which would render performance
under this Agreement impossible or impractical. In addition, each Party will do everything which
this Agreement describes that such Party will do.
8. PERMITTED DELAYS.
Any period of delay caused by acts of God; civil commotion; war; insurrection;
riots; strikes; walk outs; picketing or other labor disputes; unavoidable shortages of labor, materials
or supplies; damages to work in progress by reason of fire, flood, earthquake or other casualty;
pandemics; epidemics; quarantine restrictions; litigation challenging the validity of this
Agreement, the Project or any element thereof or which prohibits, delays or interferes with
performance of the Agreement; moratoria; judicial decisions; governmental agency or entity (with
the understanding that acts or failures to act of the City shall not excuse performance by the City)
or utility; or any other cause which is not within the reasonable control of the Parties may extend
the duration of the Agreement. Each Party will promptly notify the other Party of any delay
hereunder as soon as possible after the same has been ascertained, and the term of this Agreement
will be extended by the period of any such delay. Any claim for delay must be presented within
ninety (90) days of knowledge of the cause of such delay or any entitlement to time extension will
be deemed waived. Notwithstanding the foregoing, in no event shall Owner be entitled to a
permitted delay due to an inability to obtain financing or proceed with development as a result of
general market conditions, interest rates, or other similar circumstances that make development
impossible, commercially impracticable, or infeasible.
9. DEFAULT.
9.1. Events of Default.
Except for automatic termination pursuant to Section 5.2 and subject to any
written extension of time by mutual consent of the Parties or permitted delays pursuant to the
provisions of Section 8, the uncured failure of either Party to perform any material term or
provision of this Agreement will constitute a default. On written notice to a Party of its failure of
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performance, such Party will have thirty (30) days to cure such failure of performance; provided,
however that if the nature of the failure of performance is such that it cannot be cured within such
period, then the diligent prosecution to completion of the cure will be deemed to be cure within
such period. Any notice of default given hereunder will be in writing and specify in detail the
nature of the alleged default and the manner in which such default may be satisfactorily cured in
accordance with this Agreement. During the time period herein specified for the cure of a failure
of performance, the Party charged with such failure of performance will not be considered to be in
default for purposes of termination of this Agreement or for purposes of institution of legal
proceedings with respect thereto and, if the Owner is the Party that has failed to perform, then the
City will not be excused from its performance under this Agreement during that period.
9.2. Remedies.
The Parties acknowledge and agree that the terms of this Agreement render
ordinary remedies at law or equity inadequate for a breach of this Agreement. The Parties also
acknowledge and agree that it would not be feasible or possible to restore the Owner Property to
its natural condition once implementation of the Agreement has begun. Therefore, the Parties agree
that upon default and expiration of any applicable cure period, the remedies available to the non-
defaulting Party against a defaulting Party shall be limited to one or more of the following:
injunctive relief, mandate (traditional and/or administrative), specific performance, and/or
termination; provided, however, that in the event of any 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. Except as otherwise expressly stated in this
Agreement, the rights and remedies of the Parties are cumulative, and the exercise by either Party
of one or more of such rights or remedies shall not preclude the exercise by it, at the same or
different times, of any other rights or remedies for the same default or any other default by the
other Party.
9.3. Institution of Legal Action.
In addition to any other rights or remedies, either Party may institute legal
action to cure, correct or remedy any uncured default, to enforce any covenants or agreements
herein, to enjoin any threatened or attempted violation thereof or obtain any remedies consistent
with the purpose of this Agreement. In the event of any such legal action involving or arising out
of this Agreement, the prevailing Party will be entitled to recover from the losing Party, reasonable
litigation expenses, attorneys’ fees and costs incurred. The Parties acknowledge that if a breach of
this Agreement by the City occurs, irreparable harm is likely to occur to the Owner and damages
may be an inadequate remedy. Therefore, to the extent permitted by law, the Parties agree that
specific enforcement of this Agreement by the Parties is an appropriate and available remedy, in
addition to any and all other remedies which may be available to the Parties under law or at equity.
9.4. 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
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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.
9.5. Right of Mortgagee To Cure.
Any lender for whom notice has been given pursuant to Section 14.2 shall
have the same right to cure a default as Owner. The deadline for a lender to cure a default shall
commence with the giving of a notice of default to that lender, rather than pursuant to notice sent
to Owner.
10. ESTOPPEL CERTIFICATES.
Either Party may at any time, and from time to time, deliver written notice to the
other Party, requesting that the other Party certify in writing to the knowledge of the certifying
Party that: (a) this Agreement is in full force and effect and is a binding obligation of the certifying
Party; (b) this Agreement has not been amended or modified, except as expressly identified; (c) no
default in the performance of the requesting Party’s obligations pursuant to Agreement exists,
except as expressly identified. A Party receiving a request hereunder will execute and return the
requested certificate within thirty (30) days after receipt of the request.
11. INCORPORATION BY REFERENCE.
11.1. Recitals.
The Parties agree that Recitals A through K are true and correct, constitute
a substantive part of this Agreement, are hereby incorporated by reference herein as though set
forth in full and the Parties have materially relied upon them as such in their respective
determinations to execute this Agreement.
11.2. Exhibits.
Each Exhibit to this Agreement is incorporated herein by reference as
though fully set forth herein.
12. APPLICABLE LAW.
This Agreement will be construed and enforced in accordance with the laws of the
State of California.
13. NO JOINT VENTURE, PARTNERSHIP OR THIRD PARTY BENEFICIARY.
The City and the Owner 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 Owner joint
venturers or partners. It is understood that the contractual relationship between the City and the
Owner is such that the Owner is an independent contractor and not an agent of the City.
Furthermore, this Agreement is not intended or construed to create any third party beneficiary
rights in any person who is not a party to this Agreement.
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14. ENCUMBRANCES AND RELEASES ON REAL PROPERTY.
14.1. Discretion to Encumber.
The Parties agree that this Agreement will not prevent or limit the Owner in
any manner, at the Owner’s sole discretion, from encumbering the Owner Property, or any part of
the same including, without limitation, improvement thereon, by any mortgage, deed of trust or
other security device securing financing with respect to the Owner Property. The City further
agrees that it will not unreasonably withhold its consent to any modification requested by a lender
so long as the modification does not materially alter this Agreement to the detriment of the City.
14.2. Entitlement to Written Notice of Default.
Any lender of the Owner which has filed a written request with the City for
notice of default by Owner will be entitled to receive written notification from the City of any
uncured default by the Owner in the performance of the obligations of the Owner under this
Agreement.
14.3. Property Subject to Pro Rata Claims.
Any mortgagee or beneficiary which comes into possession of the Owner
Property or any part thereof, pursuant to foreclosure of a mortgage or deed of trust, or deed in lieu
of such foreclosure, will take the Owner Property or part thereof, subject to (i) any pro rata claims
for payments or charges against the Owner Property or part thereof secured by such mortgage or
deed of trust, which accrued prior to the time that such mortgagee or beneficiary comes into
possession of the Owner Property or part thereof; and (ii) the terms and conditions of this
Agreement.
15. BINDING EFFECT.
15.1. Entirety of Owner Property.
All of the Property shall be and shall remain subject to this Agreement
throughout the Term. All of the terms, provisions, covenants and obligations contained in this
Agreement will be binding upon the Parties and their respective successors and assigns, and all
other persons or entities acquiring all or any part of the Owner Property, and will inure to the
benefit of such Parties and their respective successors and assigns.
15.2. Owner Property and Agreement Remain Linked.
Subject to Section 15.3, Owner shall have the right to sell, transfer or assign
the Owner Property and its rights under the Agreement. However, any person acquiring any
interest in the Owner Property shall do so subject to this Agreement. Conversely, no sale, transfer
or assignment of any right or interest under this Agreement shall be made unless made together
with a corresponding sale, transfer or assignment as to the Owner Property. If less than all of the
Owner Property is sold, the new owner of that portion shall be responsible for all Development,
including Dedications and the provision of public facilities, within that portion, and the Owner (or
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its successors as to the entire Owner Property) shall remain responsible for all such matters outside
that portion of the Owner Property.
15.3. Assignment; Notice; City Consent.
The rights and obligations of Owner hereunder shall not be assigned or
transferred, except that (a) transfers by Owner to an affiliated entity that takes title to all or a
portion of Owner’s Property and assumes Owner’s future obligations hereunder with respect to
such portion of the Owner’s Property shall be permissible without consent of the City, provided
Owner shall be released from its obligations under this Agreement only as to that portion of the
Owner’s Property that is subject to such sale, transfer or conveyance, and (b) on thirty (30) days
written notice to City, including submittal of all documentation reasonably required by the City
Manager to evaluate the assignee's financial resources, Owner may assign all or a portion of
Owner’s rights and obligations thereunder to any person or persons, partnership or corporation
who purchases all or a portion of Owner’s right, title and interest in the Owner Property, provided
that (i) such assignee or grantee assumes in writing each and every obligation of Owner hereunder
yet to be performed which relates to the portion(s) of the Owner Property being assigned; and (ii)
Owner obtains the consent of City through its City Manager to the assignment, which consent shall
not be unreasonably withheld. Provided the Owner’s thirty (30) day notice includes submittal of
all documentation reasonably required by the City Manager to evaluate the assignee's financial
resources and the assumption by the assignee or grantee, the consent of the City shall be deemed
to occur upon the thirtieth (30th) day of the notice period unless within that period the City provides
written notice withholding consent and explaining the reasons it is withholding consent. The
notice to City shall include the identity of any such assignee, all documentation reasonably
required by the City Manager to evaluate the assignee's financial resources, and a copy of the
written assumption of the assignor’s obligations hereunder pertaining to the portion assigned or
transferred. After such notice and the receipt of such consent, the assignor shall have no further
obligations or liabilities hereunder. If any assignee or transferee of a portion of the Owner Property
breaches this Agreement, such breach shall not affect the rights and benefits of other assignees or
transferees under this Agreement and City shall continue to perform its obligations under in this
Agreement with respect thereto.
16. TERMS AND CONSTRUCTION.
16.1. Severability.
If any term, provision, covenant or condition of this Agreement is
determined to be invalid, void or unenforceable by judgment or court order, than the remainder of
this Agreement will remain in full force and effect, unless enforcement of this Agreement, as so
invalidated, would be unreasonable or grossly inequitable under all the circumstances or would
frustrate the stated purposes of this Agreement.
16.2. Entire Agreement.
This Agreement contains all representations and terms of agreement by and
between the Parties and constitutes the entire agreement between the City and the Owner. Any
prior correspondence, memoranda, agreements, warranties or representations, oral or written,
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including that certain Development Agreement by and between the City and Centex Homes dated
October 14, 2003 and recorded as Instrument No. 2003-960052 in the Official Records of
Riverside County and the First and Second Operating Memorandum of Understanding entered into
pursuant thereto which expired by their own terms and have no further force or effect, are
superseded in total by this Agreement. Upon execution Owner, the final Project Agreement shall
supersede the draft Project Agreement attached hereto as Exhibit “C” which fully executed Project
Agreement shall be incorporated herein by reference.
16.3. Authority; Counterpart Signature Pages.
Each individual signing this Agreement on behalf of City and Owner
warrants and represents that he or she has full authority to execute the same on behalf of City and
Owner, respectively, and that he or she is acting within the scope of his or her authority. Each
Party further represents that it has the legal authority to enter into this Agreement and to perform
all obligations under this Agreement.
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.
16.4. Time.
Time is of the essence in this Agreement and of each and every term and
condition hereof.
16.5. Notices.
Any notice shall be in writing and given by delivering the same in person
or by sending the same by registered, or certified mail, return receipt requested, with postage
prepaid, by overnight delivery, or by facsimile or electronic transmission to the respective mailing
addresses, as follows:
If to City: City of Lake Elsinore
130 S. Main Street
Lake Elsinore, CA 92530
Attn: City Manager
Email: jsimpson@Lake-Elsinore.org
With a copy to: Leibold McClendon & Mann, PC
9841 Irvine Center Drive, Suite 230
Irvine, CA 92618
Attn: Barbara Leibold, Lake Elsinore City Attorney
Email: barbara@ceqa.com
If to Owner: Richland Communities
3161 Michelson Dr., Ste. 425
Irvine, CA 92612
Attn: Mike Byer
temp_B1052F.docx -24-
Email: mbyer@richlandinvestments.com
With a copy to: Booke & Ajloun
Attn: Victoria Booke
606 N. First Street
San Jose, CA 95112
Email: vbooke@booke.com
Either City or Owner may change its mailing address at any time by giving written notice of such
change to the other in the manner provided herein at least ten (10) days prior to the date such
change is effected. All notices under this Agreement shall be deemed given, received, made or
communicated on the earlier of the date personal delivery is effected or on the delivery date or
attempted delivery date shown on the return receipt, air bill or facsimile.
16.6. Construction, Number and Gender.
This Agreement will be construed as a whole according to its common
meaning and not strictly for or against either Party in order to achieve the objectives and purposes
of the Parties hereunder. Whenever required by the context of this Agreement, the singular will
include the plural and vice versa, and the masculine gender will include the feminine and neuter
genders. In addition, “will” is the mandatory and “may” is the permissive.
17. INDEMNIFICATION.
The Owner shall defend (with counsel acceptable to the City), indemnify, and hold
harmless the City, its officers, agents, employees, consultants, officials, commissions, councils,
committees, boards and representatives (collectively referred to individually and collectively as
"Indemnitees") harmless from liability for damage or claims for damage for personal injury,
including death and claims for property damage which may arise out of the direct or indirect
activities of the Owner with respect to the Development of the Owner Property, or arising out of
or incident to any acts, omissions, negligence, or willful misconduct of Owner, its employees,
contractors, or agents in connection with the performance of this Agreement. This indemnification
excludes that portion of any claim to the extent caused by the sole negligence or willful misconduct
of City. Owner agrees to and will defend the Indemnitees from any claim, action, or proceeding
to attack, set aside, void, or annul an approval by Indemnitees concerning approval,
implementation and construction of this Agreement or the Existing Development Approvals in
connection with the Development of the Owner Property or any of the proceedings, acts or
determinations taken, done, or made prior to the decision, or to determine the reasonableness,
legality or validity of any condition attached thereto. The Owner's indemnification is intended to
include, but not be limited to, damages, fees and/or costs awarded against or incurred by
Indemnitees and costs of suit, claim or litigation, including without limitation attorneys' fees,
penalties and other costs, liabilities and expenses incurred by Indemnitees in connection with such
proceeding. City shall promptly notify Owner of any such claim, action or proceeding, and City
shall cooperate in the defense. Owner’s obligation to indemnify City hereunder shall survive any
termination of this Agreement.
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18. RECORDATION BY CITY CLERK.
Pursuant to Government Code Section 65868.5, the City Clerk will record
a copy of the Agreement in the Records of the County Recorder.
[SIGNATURES ON NEXT PAGE]
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IN WITNESS WHEREOF, City and Owner have executed this Agreement as of the date
first hereinabove written.
“CITY”
CITY OF LAKE ELSINORE,
a municipal corporation
By:
Steve Manos, Mayor
ATTEST:
Candice Alvarez, MMC, City Clerk
APPROVED AS TO FORM:
By:
Barbara Leibold, City Attorney
“OWNER”
CANADIAN PACIFIC LAND, LLC
a Florida limited liability company
By:
Name:
Title:
STRACK FARMS LAND, LLC
a Florida limited liability company
By:
Name:
Title:
temp_B1052F.docx
STATE OF CALIFORNIA )
) §
County of )
On , before me, a
Notary Public, personally appeared who proved to me on
the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within
instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized
capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity
upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the
foregoing paragraph is true and correct
WITNESS my hand and official seal.
________________________________
Signature of Notary
(Affix seal here)
A notary public or other officer completing this
certificate verifies only the identity of the individual
who signed the document to which this certificate is
attached, and not the truthfulness, accuracy, or
validity of that document.
temp_B1052F.docx
STATE OF CALIFORNIA )
) §
County of )
On , before me, a
Notary Public, personally appeared who proved to me on
the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within
instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized
capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity
upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the
foregoing paragraph is true and correct
WITNESS my hand and official seal.
________________________________
Signature of Notary
(Affix seal here)
A notary public or other officer completing this
certificate verifies only the identity of the individual
who signed the document to which this certificate is
attached, and not the truthfulness, accuracy, or
validity of that document.
temp_B1052F.docx
STATE OF CALIFORNIA )
) §
County of )
On , before me, a
Notary Public, personally appeared who proved to me on
the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within
instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized
capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity
upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the
foregoing paragraph is true and correct
WITNESS my hand and official seal.
________________________________
Signature of Notary
(Affix seal here)
A notary public or other officer completing this
certificate verifies only the identity of the individual
who signed the document to which this certificate is
attached, and not the truthfulness, accuracy, or
validity of that document.
temp_B1052F.docx
STATE OF CALIFORNIA )
) §
County of )
On , before me, a
Notary Public, personally appeared who proved to me on
the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within
instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized
capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity
upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the
foregoing paragraph is true and correct
WITNESS my hand and official seal.
________________________________
Signature of Notary
(Affix seal here)
A notary public or other officer completing this
certificate verifies only the identity of the individual
who signed the document to which this certificate is
attached, and not the truthfulness, accuracy, or
validity of that document.
temp_B1052F.docx Exhibit A
EXHIBIT “A”
LEGAL DESCRIPTION OF THE OWNER PROPERTY
[TO BE INSERTED]
temp_B1052F.docx Exhibit B
EXHIBIT “B”
VICINITY MAP
[TO BE INSERTED]
temp_B1052F.docx Exhibit C
EXHIBIT “C”
EXISTING DEVELOPMENT IMPACT FEES
[TO BE INSERTED]
temp_B1052F.docx Exhibit D
EXHIBIT “D”
CONDITIONS OF APPROVAL
[TO BE INSERTED]