HomeMy WebLinkAbout05-10 CC Ordinance
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ORDINANCE NO. 05.10
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF
TEMECULA APPROVING THAT CERTAIN AGREEMENT
ENTITLED "DEVELOPMENT AGREEMENT BETWEEN THE
CITY OF TEMECULA AND AGK GROUP, LLC",
ESTABLISHING CERTAIN DEVELOPMENT RIGHTS FOR THE
TEMECULA EDUCATION CENTER (PA04.0582 AND PA05.
0070).
WHEREAS, Gary Wiggle, representing AGK Group, LLC, filed Planning Application Nos.
PA05-0122, Development Agreement; PA04-0582, Zone Change and Development Plan; and
PA05-0070, a Tentative Parcel Map for the property consisting of approximately 40.0 acres
generally located at the northwest corner of Diaz Road and Dendy Parkway, known as Assessor
Parcel No. 909-370-002; and
WHEREAS, Government Code Section 65864 authorizes the City to enter into binding
development agreements with persons having legal or equitable interests in real property for the
development of such property in order to, among other matters: ensure high quality
development in accordance with comprehensive plans; provide certainty in the approval of
development projects so as to avoid the waste of resources and the escalation in the cost of
housing and other development to the consumer; provide assurance to the applicants for
development projects that they may proceed with their projects in accordance with existing
policies, rules and regulations and subject to conditions of approval, in order to strengthen the
publiC planning process and encourage private participation in comprehensive planning and
reduce the private and public economic costs of development; and provide for economic
assistance to Owner for the entitlements authorizing development related improvements.
WHEREAS, the applications for the Project were processed and an environmental
review was conducted as required by law, including the California Environmental Quality Act;
and
WHEREAS, the Planning Commission of the City of Temecula held a duly noticed publiC
hearing on May 4, 2005 to consider the applications for the Project and environmental review, at
which time the City staff and interested persons had an opportunity to, and did testify either in
support or opposition to this matter; and
WHEREAS, following consideration of the entire record of information received at the
public hearings and due consideration of the proposed Project, the Planning Commission
adopted Resolution No. 2005-30, recommending that the City Council approve a Development
Agreement for the Temecula Education Center for property generally located at the northwest
corner of Diaz Road and Dendy Parkway, known as Assessor Parcel No. 909-370-002; and
WHEREAS, on June 28, 2005 the City Council of the City of Temecula held a duly
noticed public hearing on the Project at which time all persons interested in the Project had the
opportunity and did address the City Council on these matters; and
WHEREAS, at the conclusion of the City Council hearing and after due consideration of
the testimony, the City Council approved the Development Agreement for the Project subject to
and based upon the findings set forth hereunder;
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WHEREAS, all legal preconditions to the adoption of this Ordinance have occurred.
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF TEMECULA DOES
HEREBY RESOLVE, DETERMINE, AND ORDER AS FOLLOWS:
Section 1. That the above recitations are true and correct and are hereby
incorporated by reference.
Section 2. The City Council, in approving the Development Agreement proposed in
Planning Application PA05-0122, hereby makes the following findings:
A. The Development Agreement and the project, as defined in the Development
Agreement, implement the goals and policies of the City's General Plan, provide balanced and
diversified land uses, and impose appropriate standards and requirements with respect to land
development and usage in order to maintain the overall quality of life and the environment within
the City.
B. The City has engaged in studies and review of the potential impacts of the
Project as well as the various potential benefits to the City by the development of the Project
and concluded that the Project is in the best interests of and is not detrimental to the health,
safety and general welfare of the City.
C. The Development Agreement is consistent with the City's General Plan, and
each Element thereof.
D. The Development Agreement is being entered into pursuant to and in compliance
with the requirements of Government Code Section 65867.
Section 3. Environmental Compliance. A Final Environmental Impact Report for the
Temecula Education Complex (Environmental Assessment EA-097) was approved by the City
Council on March 16, 2004. Per Section 15162 of the State CEQA Guidelines, when an EIR
has been certified for a project, no subsequent EIR shall be prepared for that project unless the
lead agency determines that substantial changes are proposed or will occur, or that new
information of substantial importance is available. The proposed project substantially conforms
to the conceptual plans for the Temecula Education Complex Final EIR and no new information
of substantial importance regarding the environmental review of the project has arisen since the
EIR was approved. Therefore, the City Council finds that the proposed project is consistent with
the Final EIR for the Temecula Education Complex.
Since the adoption of the Final EIR, the Riverside County Multiple Species Habitat Conservation
Plan (MSHCP) has gone into effect. Consistent with the MSHCP, a Habitat Acquisition and
Negotiation Strategy (HANS) report is being prepared for the project. The applicant will be
required to meet the requirements, if any, of that report prior to issuance of a grading permit
Section 4. The City of Temecula City Council hereby approves the Development
Agreement proposed in Planning Application PA05-0122 to establish a vested right for the
developer to implement the development pursuant to the Development Plan approvals; to
establish that neither the developer nor merchant builder shall be subject to any new or revised
fees or charges; and to establish that the City shall charge Development Impact Fees for the
project in the amount the City charged, in all categories, on March 16, 2004, for a site generally
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located at the northwest corner of Diaz Road and Dendy Parkway, known as Assessor Parcel
No. 909-370-002, in the form attached to this Ordinance as Exhibit A.
Section 5. Severabilitv. If any sentence, clause or phrase of this Ordinance is for
any reason held to be unconstitutional or otherwise invalid, such decision shall not affect the
validity of the remaining provisions of this ordinance. The City Council hereby declares that the
provisions of this Ordinance are severable and if for any reason a court of competent jurisdiction
shall hold any sentence, paragraph, or section of this Ordinance to be invalid, such decision
shall not affect the validity of the remaining parts of this Ordinance.
Section 6. Notice of Adoption. The City Clerk shall certify to the adoption of this
Ordinance and shall cause the same to be posted as required by law.
Section 7. Effective Date. This Ordinance shall be in full force and effect thirty (30)
days after its passage. The City Clerk shall certify to the adoption of this Ordinance and cause
copies of this Ordinance to be posted in three designated posting places.
Section 8. This Ordinance shall be in full force and effect thirty (30) days after its
passage; and within fifteen (15) days after its passage, together with the names of the City
Council members voting thereon, it shall be published in a newspaper published and circulated
in said City.
PASSED, APPROVED, AND ADOPTED by the City Council of the City of Temecula this
12th day of July, 2005.
ATTEST:
Jeff Comerchero, Mayor
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STATE OF CALIFORNIA )
COUNTY OF RIVERSIDE ) ss
CITY OF TEMECULA )
I, Susan W. Jones, CMC, City Clerk of the City of Temecula, do hereby certify that the
foregoing Ordinance No. 05-10 was duly introduced and placed upon its first reading at a
regular meeting of the City Council on the 28th day of June, 2005 and that thereafter, said
Ordinance was duly adopted and passed at a meeting of the City Council on the 12th day of
July, 2005, by the following vote:
AYES:
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COUNCILMEMBERS: Edwards, Naggar, Roberts, Washington,
Comerchero
NOES:
o
COUNCILMEMBERS: None
ABSENT:
o
COUNCILMEMBERS: None
ABSTAIN:
o
COUNCILMEMBERS: None
. Jones, CMC
City Clerk
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EXHIBIT A
DEVELOPMENT AGREEMENT
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DEVELOPMENT AGREEMENT
By and Between
THE CITY OF TEMECULA,
City,
and
AGK GROUP, LLC
Owner.
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DEVELOPMENT AGREEMENT
THIS DEVELOPMENT AGREEMENT (the "Agreement") is entered into as of the
_ day of ,2005 ("Agreement Date"), by and between ,
a ("KADING" or "OWNER"), and the CITY
OF TEMECULA, a municipal corporation, organized and existing under the laws of the
State of California (hereinafter "CITY"), pursuant to the authority of Sections 65864
through 65869.5 of the California Government Code and Article XI, Section 2 of the
California Constitution.
RECITALS
This Agreement is predicated upon the following facts:
A. These Recitals refer to and utilize certain capitalized terms which are
defined in this Agreement. The parties intend to refer to those definitions in conjunction
with the use thereof in these Recitals.
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B. The Development Agreement Legislation authorizes the CITY to enter into
binding development agreements with persons having legal or equitable interests in real
property for the development of such property in order to, among other matters: ensure
high quality development in accordance with comprehensive plans; provide certainty in
the approval of development projects so as to avoid the waste of resources and the
escalation in the cost of housing and other development to the consumer; provide
assurance to the applicants for development projects that they may proceed with their
projects in accordance with existing policies, rules and regulations and subject to
conditions of approval, in order to strengthen the public planning process and
encourage private participation in comprehensive planning and reduce the private and
public economic costs of development; assist in the financing of public improvements;
protect against initiatives, moratorium (processing or development) and other actions
inconsistent with the Project anticipated by this Agreement; assure reimbursement of
OWNER in accordance with the terms of this Agreement and state and federal law; and
provide for economic assistance to OWNER for the entitlements authorizing
development related improvements.
C. KADING is, or will be the owner of certain real property within the City of
Temecula, the County of Riverside, State of California ("KADING Property"), as more
particularly described in Attachment "1", including a plat graphically depicting each
respectively. OWNER desires to develop the Property in accordance with the
provisions of this Agreement, the Existing Regulations and those regulations of other
agencies exercising jurisdiction upon the project. The Scope of Development of the
Property as contemplated by this Agreement is described below.
D. OWNER has applied for, and the CITY has agreed to, this Agreement in
order to create a beneficial project and a physical environment that will conform to and
complement the goals of the CITY, create a development project sensitive to human
needs and values, facilitate efficient traffic circulation, and develop the Property. As
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part of the process of granting this entitlement, the City Council of the CITY has
required the preparation of and has certified the Project EIR in order to identify any
significant environmental effects arising from the Development and has otherwise
carried out all requirements of the California Environmental Quality Act ("CEQA") of
1970, as amended.
E.
Project:
The following actions were taken with respect to this Agreement and the
1. On " following a duly noticed and
conducted public hearing, the City Planning Commission recommended that the City
Council approve this Agreement, the General Plan amendment, the Specific Plan,
Rezone and Tentative Map No. , by adoption of its Resolution No. and
making the findings of fact thereto;
2. On , after a duly noticed public hearing and
pursuant to CEQA, the City Council certified the Project EIR and adopted the Mitigation
Monitoring and Reporting Program by adoption of its Resolution No. and making
the findings of fact thereto;
3. On , after a duly noticed public hearing, the City
Council determined that the provisions of this Agreement are consistent with the
General Plan of the CITY by adoption of its Resolution No. and making the
findings of fact thereto; .
4. On , after a duly noticed public hearing, the City
Council approved the Specific Plan, the General Plan amendment, the Rezone and
Tentative Map No. by adoption of its Resolution No.
Ordinance No. _ and making the findings of fact thereto;
5. On , after a duly noticed public hearing, the City
Council introduced Ordinance No. approving and authorizing the execution of
this Agreement and on , the City Council adopted the Ordinance, a
copy of which is on file with the City Clerk of the CITY, and the findings and conditions
pertaining thereto.
F. The CITY has engaged in extensive studies and review of the potential
impacts of the Project under the California Environmental Quality Act and all applicable
Existing Regulations, as well as the various potential benefits to the CITY by the
development of the Project and concluded that the Project is in the best interests of the
CITY.
G. In consideration of the substantial public improvements and benefits
already provided and those to be provided by OWNER and the Project, as described in
Attachment 2, in further consideration of the benefits that will inure to the CITY in
conjunction with the implementation of the Project and in order to strengthen the public
financing and planning process and reduce the economic costs of development, by this
Agreement, the CITY intends to give and by this Agreement gives, OWNER assurance
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that OWNER can proceed with the Development of the Project for the Term of this
Agreement pursuant to the terms and conditions of this Agreement and in accordance
with the Development Plan Approval(s) and the Existing Regulations. In reliance on the
CITY's covenants in this Agreement concerning the Development of the Property,
OWNER has and will in the future incur substantial indebtedness, as well as costs in
planning, engineering, site preparation and the construction and installation of major
infrastructure and facilities that OWNER would not incur but for the covenants of CITY
provided in this Agreement. .
H. Pursuant to Section 65867.5 of the Development Agreement Legislation,
the City Council has found and determined that: (i) this Agreement and the
Development Plan Approval(s) implement the goals and policies of the CITY's General
Plan and the Specific Plan, provide balanced and diversified land uses and impose
appropriate standards and requirements with respect to land development and usage in
order to maintain the overall quality of life and the environment within the CITY, (ii) this
Agreement and the Project are in the best interests of and not detrimental to the public
health, safety and general welfare of the CITY and its residents; (iii) adopting this
Agreement is consistent with the CITY's General Plan and constitutes a present
exercise of the CITY's police power; and (iv) this Agreement is being entered into
pursuant to and in compliance with the requirements of Section 65867 of the
Development Agreement Legislation.
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I. The CITY and OWNER agree that it may be beneficial to enter into
operating memoranda, additional agreements or to modify this Agreement with respect
to the implementation of the separate components of the Project when more information
concerning the details of each component is available, and that this Agreement should
expressly allow for such contemplated operating memoranda, additional agreements or
modifications to this Agreement.
AGREEMENT
NOW, THEREFORE, pursuant to the authority contained in the Development
Agreement Legislation, pursuant to Article XI, Section 2 of the California Constitution,
and in consideration of the foregoing recitals of fact, all of which are expreSSly
incorporated into this Agreement, the mutual covenants set forth in this Agreement, the
parties agree as follows:
1. Definitions.
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Unless the context otherwise requires, the terms defined in this Section 1 shall,
for all purposes of this Agreement, or any supplemental agreement, and any certificate,
opinion or other document herein mentioned, have the meanings herein specified. All
references herein to "Articles," "Sections" and other subdivisions are to the
corresponding Articles, Sections or subdivisions of this Agreement, and the word
"herein," "hereof," "hereunder" and other words of similar import refer to this Agreement
as a whole and not to any particular Article, Section or subdivision hereof.
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"Agreement Date" means , 2005, the date of the second
introduction and reading of the Authorizing Ordinance by the City Council.
"Authorizing Ordinance" means Ordinance No.
this Agreement.
"CITY" means the City of Temecula, a California municipal corporation, duly
organized and existing under the Constitution and laws of the State of California, and all
of its officials, employees, agencies and departments and assignees or successors.
of the CITY approving
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"City Council" means the duly elected and constituted City Council of the CITY.
"Develop" or "Development" or "Developing" means the improvement of the
Property for purposes consistent with the Development Plan, including, without
limitation: subdividing, grading, the construction of infrastructure and public facilities
related to the Off-Site Improvements, the construction of structures and buildings and
the installation of landscaping, all in accordance with the phasing provided for herein.
"Development Agreement Legislation" means Sections 65864 through
65869.5 of the California Government Code as it exists on the Agreement Date.
"Development Impact Fees" or "DIF" means, individually and in the aggregate,
the CITY's currently adopted development impact fees as set forth in Ordinance No. 97-
09 in effect as of the Agreement Date as set forth in the Temecula Municipal Code in
"Development Plan" means the plan for Developing the Property contained in
this Agreement, the City of Temecula General Plan as amended on ,
2001 and as thereafter amended in accordance with Section 3.6 hereof, the Project EIR
(including Mitigation Monitoring Program) and those Future Development Approvals,
approved in conformance with Section 3.7 hereof.
"Development Plan Approval(s)" means the approvals of the City Council and
other governmental agencies and other actions and agreements described in
Attachment 2 hereto, including those amendments to this Agreement made in
accordance with Section 3.5, those amended to the Development Plan Approvals made
in accordance with Section 3.6 and those Future Development Approvals made in
accordance with Section 3.7.
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"Development Transferee" means a person or entity that expressly assumes
obligations under this Agreement pursuant to Section 2.5 hereof.
"Effective Date" means the date ttle- Authorizing Ordinance becomes effective.
"Existing Regulations" means those ordinances, rules, regulations and official
policies of the CITY other than the Development Plan Approval(s) in effect on the
Agreement Date, which govern the permitted uses of the Property, building heights, the
size of structures, the density and intensity of use of the Property, the timing, fees, and
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conditions to Development, exactions, assessments, the procedures for, and types of,
permits required for the Development. the provisions for reservation or dedication of
land for public purposes and the design, improvement and construction standards and
specifications applicable to the Property and the infrastructure required for the
Development.
"Future Development Approvals" means those entitlements and approvals that
are: (a) made in accordance with Section 3.7; and (b) requested by the CITY or
OWNER in order to authorize the Development to occur upon the Property in a manner
consistent with the Development Plan Approval(s). By way of enumeration, and not
limitation, the Future Development Approvals include actions such as development
plan review, tentative maps, final maps, use permits, variances, grading permits,
occupancy permits and building permits.
"KADING" means AGK Group, LLC, 35411 Paseo Viento, Capistrano Beach,
CA, 92624.
"KADING Development" means the Development located on the OWNER
Property, and Public Infrastructure Improvements related thereto.
"KADING Property" means that certain real property that is part of the Property,
as described in Attachment 1 hereto and subject to refinement upon recordation of the
final "A" map.
"Merchant Builder" means a buyer, assignee, or transferee (other than the
OWNER or any End User) of one or more individual lots or tracts of the Project,
acquiring such lots or tracts for the purpose of engaging in the business of developing,
improving, or using such lots or tracts for development.
"OWNER" is KADING and others who subsequently are assigned the rights and
obligations of OWNER pursuant to Section 2.5 hereof.
"Planning Commission" means the duly appointed and constituted planning
commission of the CITY.
"Project" means the development of the Property as set forth in the
Development Plan Approval(s).
"Project EIR" means that environmental impact report prepared for the Project,
as certified on , 2005.
"Property" means that certain real property described in Attachment 1 hereof.
"Term" means the time frames set forth in Section 2.3.
2. General Provisions.
2.1 Blndlna Covenants. Except as otherwise provided for in this Agreement,
the provisions of this Agreement to the extent permitted by law, constitute covenants
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which shall run with the Property for the benefit thereof, and the benefits and burdens of
this Agreement shall bind and inure to the benefit of the parties, all successors in
interest to the parties hereto to the extent provided for in this Agreement.
2.2 Interest of OWNER. OWNER represents that OWNER owns fee simple
interest in the Property. [IS THIS CORRECT NOW?]
2.3 Term. This Agreement shall become effective on the Effective Date.
Unless terminated pursuant to Section 2.4, with respect to the KADING Property, this
Agreement shall terminate at 11 :59 p.m. on the tenth (10th) anniversary of the Effective
Date of this Agreement. The termination shall occur subject to specific extensions,
force majeure, revisions, and termination provisions of this Agreement.
2.4 Termination.. This Agreement shall be deemed terminated and of no
further effect, except for those covenants and agreements that expressly survive
termination, upon the occurrence of any of the following events:
2.4.1 If termination occurs pursuant to any specific provision of this
Agreement, including, without limitation, a termination in the event of default;
2.4.2 Completion of the total build-out of the Development pursuant to
the terms of this Agreement and the CITY's issuance of all requir~d occupancy permits
and acceptance of all dedications and improvements required to complete
Development; or
2.4.3 Entry after all appeals have been exhausted of a final judgment or
issuance of a final order directed to the CITY as a result of any lawsuit filed against the
CITY to set aside, withdraw, or abrogate the approval of the City Council of this
Agreement.
2.4.4 The expiration of the Term as set forth in Section 2.3.
To provide notice to all, and not as a condition of the effectiveness of a
termination of this Agreement, the parties agree to execute and record terminations of
or releases of this Agreement.
2.5 Transfers and Assianments.. OWNER's reputation, resources and
corporate history are a material component of CITY's decision to enter into this
Agreement. The CITY, but for the factors attributable to OWNER, would not have
agreed to the terms and conditions set forth in this Agreement. In light of such reliance
CITY desires to be provided assurances in regards to any successor to OWNER's
rights, duties and obligations which arise, directly or indirectly, under this Agreement.
CITY also does not desire to unduly intervene in OWNER's business affairs. In order to
satisfy the goals and objectives of CITY, and to allow the OWNER reasonable freedom
in regards to its business affairs, CITY and OWNER agree to the following provisiol)s
regarding transfers and assignments.
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2.5.1 Assignments and/or Transfers Involving No Assignment or
Transfer of Specified Rights, Duties and Obligations Under the Development
Agreement. OWNER, at any time and from time to time, may transfer to any person,
firm or entity that lawfully capable of assuming the same, any interest the OWNER may
possess in the Property or the Development Plan, without the prior approval of CITY
provided that, prior to the completion of the transaction which shall result in the transfer
or assignment of the subject interest OWNER shall cause the following to occur:
(i) OWNER shall give written notice to CITY of the proposed
assignment or transfer, including the name of the transferee or assignee, the business
address, facsimile number, telephone number and email address of the transferee or
assignee, a reasonably detailed description of the interest being transferred or assigned
and the anticipated date of the transfer.
(i1) OWNER's legal counsel shall deliver a formal written
opinion, for benefit of CITY and with the purpose of CITY's reliance on the same for all
purposes, that no rights, duties or obligations of OWNER relating to the Additional
Benefits, the Connecting Arterials, the Interchange Improvements, the Off-Site
Improvements and those matters set forth on the Attachments to the Agreement, and
the timely and complete development thereof, are being transferred or assigned as a
result of the transaction.
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In the event OWNER cannot provide the documents set forth in Subsection
2.5.1 (i) and 2.5.1 (i1) in the time frame required, OWNER shall obtain CITY's prior written
consent, which shall not be unreasonably withheld. The transferees and assignees
identified pursuant to this subsection shall be referenced as "Non-Obligation
AssigneesfTransferees."
2.5.2 Assignments and/or Transfers Involving the Assignment or
Transfer of Certain Specified Rights, Duties and Obligations Arising Under the
Development Agreement. OWNER, at any time and from time to time may desire to
transfer to another the OWNER's rights, duties and obligations arising under and from
the Development Agreement in regards to the promises and performances in regards to
the Additional Benefits, the Connecting Arterials, the Interchange Improvements, the
Off-Site Improvements and those matters set forth on the Attachments to the
Agreement. The requirements attendant to the assignment or transfer are:
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(i) Prior to the completion of the assignment or transfer the
OWNER shall deliver to CITY the information defined in Subsection 2.5.1 (i) above.
(ii) Prior to the completion of the assignment or transfer
OWNER shall deliver to CITY a duplicate of the instrument by which the subject rights
duties and obligations are to be assignee or transferee including a description of the
security being offered CITY to ensure the completion of the rights, duties and
obligations.
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(iii) Prior to the completion of the assignment or transfer
OWNER shall deliver to CITY a proposed opinion prepared by the assignees or
transferees legal counsel, to the benefit of CITY which both identifies with particularity
those rights, duties and obligations under the Development Agreement to be assumed
by the assignee or transferee and which unequivocally acknowledges that the assignee
or transferee is bound by the terms of the Development Agreement and acknowledges
the CITY may enforce the Development Agreement against such Party.
(iv) Prior to the completion of the assignment or transfer
OWNER shall deliver to CITY an estoppel certificate, at no cost to CITY, wherein
OWNER specified and acknowledges those obligations under the Development
Agreement which OWNER has retained.
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(v) CITY shall promptly review the documents submitted, at
such time all of the documents are received by CITY and shall thereafter provide a
written response to OWNER. CITY shall limit its review to the determination of (a) is the
security for the subject performances reasonably adequate to cause the subject rights,
duties and obligations to be completed as required by the Agreement and b) do the
documents reasonably provide the information and conform to the standards and
requirements expected of such instrument when the same is prepared by a competent
legal practitioner. CITY shall deliver its written review, including the changes CITY
requires as a precondition to the issuance of its consent, to OWNER. In the event
CITY's requests are accepted by OWNER, a duplicate set of the execution ready
documents shall be provided to CITY prior to the close of the transaction for the
purpose of CITY confirming all changes were correctly made therein. CITY shall
thereafter be provided final, executed duplicates of the items described in Subsection
2.5.2(ii), (iii), and (iv) above concurrently with the completion of the transaction
effectuating the assignment or transfer. The assignee or transferee shall be referenced
as the "Development Transferee with Obligations."
2.5.3 Effect of Assignment or Transfer. Unless expressly set forth to
the contrary in this Agreement CITY shall require OWNER to perform all promises,
duties and obligations set forth in the Development Agreement with the sole exception
of those which CITY has consented to be assigned or transferred to a development
Transferee with Obligations. CITY shall look only to the Development Transferee to
perform the obligations such party is obligated to perform.
3. Development Provisions.
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3.1 Vestina.
3.1.1 ProJect..CITY covenants that OWNER has, and OWNER shall
have, the right to implement the Development pursuant to the Development Plan
approvals and the existing regulations, including, without limitation, 288 multi-family residential
units and 266,518 square feet of commercial and educational development as provided for in
the Development, and the CITY shall have the right to control the Development in
accordance with the Existing Regulations and the Development Plan Approval(s)
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("vested right"). Except as otherwise expressly specified in this Agreement, the
Development Plan Approval(s) shall control the design and development, and review
and approval of all Future Development Approvals and all Off-Site Improvements and
appurtenances in connection therewith. Except to the extent it has been amended,
canceled, modified or suspended in accordance with the terms of this Agreement, this
Agreement shall be enforceable by OWNER or its assignees notwithstanding any
change in any Existing Regulation.
3.1.2 Limits on Development. The California Supreme Court held in
Pardee Construction Comoanv v. City of Camarillo, 37 Cal.3d 465 (1984), that the
failure of the parties to address certain limits on a CITY's ability to condition, restrict or
regulate a development allowed a later adopted initiative to restrict the development.
This Agreement cures that deficiency by expressly addressing the timing for the
Development, the vested rights afforded by this Agreement and the scope of the CITY's
Reserved Authority. Except as expressly set forth in the Development Plan Approval(s),
regardless of any future enactment, by initiative, or otherwise, OWNER shall have the
discretion to develop the Development in such order, and at such rate, in one phase or
in multiple phases, at such times as OWNER deems appropriate within the exercise of
its subjective business judgment. Specifically, the CITY agrees that OWNER shall be
entitled to apply for and receive the Future Development Approvals and to develop and
use the Property at any time during the term of this Agreement, provided that such.
application is made and such development occurs in accordance with this Agreement,
the other Development Plan Approval(s) and the Existing Regulations. The CITY
covenants that no Existing Regulation purports to limit the scope, rate or timing of
Development or alter the sequencing of Development in a manner inconsistent with the
Development Plan Approval(s). No future amendment of any CITY law, or future
adoption of any CITY law or other action, that purports to limit the scope, rate or timing
of Development on the Property or alter the sequencing of the Development, in a
manner inconsistent with the Development Plan Approval(s), whether adopted or
imposed by the City Council or through the initiative or referendum process, shall apply
to the Property. In particular, but without limiting any of the foregoing, no numerical
restriction shall be placed by CITY on !he number of dwellings units or amount of
commercial development that may be built in any particular year on any portion of th~
Property other than permitted by this Agreement.
3.1.3 Entitlements, Permits and Approvals. Cooperation.
3.1.3.1 Processing. CITY agrees that it shall accept and
expeditiously process, pursuant to CITY's regular procedures, OWNER's applications
for amendments to this Agreement, amendments to the Development Plan Approval(s)
and the Future Development Approvals.
3.1.3.2 Further Mitigation. In connection with the issuance of
any Future Development Approvals which are subject to review under CEQA, unless
required under the California Public Resource Code and the Guidelines 'promulgated
thereunder, the CITY shall not impose any environmental land use project alternatives
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or mitigation measures on OWNER or the Property beyond those referenced in the
Development Plan Approval(s).
3.1.3.3 Other Permits. The CITY further agrees to reasonably
cooperate with OWNER, at no cost to the CITY, in securing any County, State and
Federal permits or authorizations which may be required in connection with
Development of the Property. Except as expressly provided for in this Agreement, this
cooperation shall not require any economic contribution or similar consideration by the
CITY.
3.1.3.4 Litigation. The CITY agrees to reasonably cooperate
with OWNER in all reasonable manners in order to keep this Agreement in full force and
effect. If any legal action is instituted by a third party or other governmental entity or
official challenging the Development Plan Approval(s) or Future Development
Approvals, the parties hereby agree to cooperate in jointly defending such action.
Notwithstanding the foregoing OWNER shall be responsible for all costs, including, but
not limited to, attorneys fees, costs, expert witnesses and the like. OWNER shall
reimburse CITY its costs within thirty (30) calendar days of receipt of any invoice by
OWNER.
3.1.3.5 Acquisition of Off-Site Property. The CITY shall not
postpone or refuse approval of a Future Development Approval because the OWNER or
Development Transferee has failed to acquire off-site property required for the
construction or installation of Off-Site Improvements. To the extent the CITY, OWNER
or a Development Transferee does not have sufficient title or interest to permit the
Public Infrastructure Improvements to be made at the time the Future Development
Approval is filed with the CITY, the applicable OWNER or Development Transferee shall
make a good faith effort to acquire the required property. If the OWNER or
Development Transferee is unable to acquire the required property, the CITY shall
consider in good faith the acquisition of the required property. Subject to the following if
the CITY is unable to acquire the required property by negotiation or condemnation
within the time frame provided for in Government Code Section 66462.5, the CITY shall
continue to issue Future Development Approvals for the Project despite the fact that the
improvement has not been completed. Notwithstanding the above, the CITY's obligation
to continue to issue Future Development Approvals as provided for in this Section is
contingent upon: (i) the applicable OWNER or Development Transferee submitting the
improvement plans required for the improvement to the CITY; and (ii) consistent with
Government Code Section 66462.5, the OWNER or Development Transferee enters
into an agreement with the CITY to reimburse the CITY for costs incurred by the CITY in
acquiring the required property; and (Iii) so long as OWNER or Development Transferee
has deposited with CITY an amount equal to the costs of the Public Infrastructure
Improvement(s) which. are uncompleted. CITY may use these funds for community
circulation/transportation improvements in its sole discretion.
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3.2 Reserved Authorltv.
3.2.1 Uniform Codes. This Agreement shall not prevent the CITY from
applying new uniform construction standards adopted by the State of California as State
Codes, such as the Uniform Building Code, National Electrical Code, Uniform
Mechanical Code or Uniform Fire Code, to the Development, provided those same
standards are applied to all other development within the CITY.
3.2.2 State and Federal Laws and Regulations. Subject to compliance
with the requirements of this Section 3.2.2, the Property may be subject to subsequently
enacted state or federal laws or regulations which preempt local regulations, or
mandate the adoption of local regulations, and are in conflict with the Development Plan
Approval(s). Upon discovery of a subsequently enacted federal or state law meeting
the requirements of this Section, CITY or OWNER shall provide the other parties with
written notice of the state or federal law or regulation, provide a copy of the law or
regulation, and a written statement of conflicts with the provisions of this Agreement.
Promptly thereafter CITY and OWNER shall meet and confer in good faith in a
reasonable attempt to determine whether a modification or suspension of this
Agreement, in whole or in part, is necessary to comply with such federal or state law or
regulation. In such negotiations, CITY and OWNER agree to preserve the terms of this
Agreement and the rights of OWNER as derived from this Agreement to the maximum
feasible extent while resolving the conflict. CITY agrees to cooperate with OWNER in
resolving the conflict in a manner which minimizes any financial impact of the conflict
upon OWNER without materially increasing the financial obligations of CITY under this
Agreement. CITY also agrees to process in a prompt manner OWNER's proposed
changes to the Project as may be necessary to comply with such Federal or State law;
provided, however, that the approval of such changes by CITY shall be subject to the
discretion of CITY, consistent with this Agreement.
3.2.3 Regulation for Health and Safety. Nothing in this Agreement
shall be construed to be in derogation of CITY's police power to protect the public health
and safety from a sudden, unexpected occurrence, involving a clear and imminent
danger, demanding immediate and interim action to prevent or mitigate loss of, or
damage to, life, health, property, or essential public services involving the Property or
the immediate community ("Exigent Event"). Upon discovery of an Exigent Event, CITY
may suspend this Agreement for a period reasonably necessary to analyze, evaluate
and develop a response to the Exigent Event following delivery of written notice of
suspension to OWNER. Immediately thereafter, the suspension shall end and CITY
shall provide the OWNER with written notice of the existence of the Exigent Event, a
detailed explanation of the CITY's proposed action, and a written statement of conflicts
with the provisions of this Agreement. Promptly thereafter CITY and OWNER shall
meet and confer in-good faith in a reasonable attempt to determine whether a
modification or suspension of this Agreement, in whole or in part, is necessary to
comply with the Exigent Event. In such negotiations, CITY and OWNER agree to
preserve the terms of this Agreement and the rights of OWNER as derived from this
Agreement to the maximum feasible extent while resolving the conflict. CITY agrees to
cooperate with OWNER in resolving the conflict in a manner which minimizes any
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financial impact of the conflict upon OWNER without materially increasing the financial
obligations of CITY under this Agreement. CITY also agrees to process in an expedited
manner OWNER's proposed changes to the Project as may be necessary to comply
with the Exigent Event; provided, however, that the approval of such changes by CITY
shall be subject to the discretion of CITY, consistent with this Agreement.
3.3 Further Assurances to OWNER ReaardlnQ Exercise of Reserved
Authorltv
3.3.1 Assurances to OWNER. The parties further acknowledge that the
public benefits to be provided by OWNER to the CITY pursuant to this Agreement are in
consideration for and reliance upon assurances that the Property can be developed in
accordance with the Development Plan Approval(s) and the Existing Regulations.
Accordingly, while recognizing that the Development of the Property may be affected by
the exercise of the authority and rights reserved and excepted as provided in Sections
3.1 and 3.2 ("Reserved Authority"), OWNER is concerned that normally the judiciary
extends to local agencies significant deference in the adoption of rules, regulations and
policies which might otherwise permit the CITY, in violation of the Reserved Authority, to
attempt to apply rules, regulations and policies that are inconsistent with the
Development Plan Approval(s). Accordingly, OWNER desires assurances that the
CITY shall not, and the CITY agrees that it shall not, further restrict or limit the
development of the Property in violation of this Agreement except in strict accordance
with the Reserved Authority, which excuse shall not be considered to be a violation of
this Agreement. .
3.3.2 Judicial Review. Based on the foregoing, if OWNER judicially
(including by way of a reference proceeding) challenges the application of a future rule,
regulation or policy as being in violation of this Agreement and as not being applied in
accordance with the Reserved Authority, OWNER shall bear the burden of alleging that
such rule, regulation or policy is inconsistent with the Existing Regulations and the
Development Plan Approval(s) and the CITY shall thereafter bear the burden of proof in
establishing by a preponderance of the evidence that such regulation was adopted
pursuant to and in accordance with the Reserved Authority and was not applied by the
CITY in violation of this Agreement.
3.4 Consistent and Inconsistent Enactments.No Conflicting Enactments.
The CITY shall not enact a rule, regulation, ordinance, policy, permit or other measure
(collectively "Law"), nor take any action applicable to the Project or the Property, which
governs the rate, timing, scope, intensity, use, density, manner, or sequencing of the
Development, or any part thereof and which is inconsistent or in conflict with the
Development Plan Approval(s). By way of enumeration, and not limitation, any law,
action or inaction, whether by specific reference to the Project, this Agreement or
otherwise, shall be considered to conflict if it:
3.4.1.1 Restricts the vested rights described in the Agreement or
in any way limits or reduces the rate, timing, scope, intensity, use, density, manner, or
sequencing of the Development or otherwise requires any reduction or increase in the
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number, size, height or square footage of lot(s), structures, buildings or other
improvements, modifies the standards and specifications applicable to the infrastructure
required for the Development or requires additional dedications, exactions, fees or
mitigation other than that provided for in the Agreement;
3.4.1.2 Is consistent with Section 3.4.1.1 hereof, but is not
uniformly applied by the CITY to all substantially similar development within the CITY; or
3.4.1.3 Imposes a new permit requirement or procedure not
already part of the Existing Regulations.
3.4.2 Consistent Enactments. By way of enumeration and not
limitation, the following type of enactments shall be considered consistent with this
Agreement and Existing Regulations and not in conflict:
3.4.2.1 Any enactment authorized by this Agreement.
3.4.3 Consistency Between This Agreement, the Development Plan
Approval(s) and Existing Regulations. To the extent a conflict exists or develops
between the Existing Regulations and the Development Plan Approval(s), the
Development Plan Approval(s) shall be controlling. To the extent a conflict exists or
develops between this Agreement and any other Development PlanApproval(s)
[excluding all requirements of the EIR], this Agreement shall be controlling.
3.5 Amendment of Development Aareement.
3.5.1 Initiation of Amendment. Either CITY or OWNER may propose
an amendment to this Agreement. No Development Transferee assigned the rights and
obligations of an OWNER pursuant to Section 2.5.3 shall have the right to initiate an
amendment with respect to any property other than the portion of the Property owned
by that Development Transferee. Both CITY and OWNER agree that it may be
beneficial to enter into an amendment of this Agreement in connection with the
implementation of the separate components of the Project. Neither an End User, a
Merchant Builder nor a Development Transferee shall have the right to initiate an
amendment of this Agreement without the written consent of the OWNER. An operating
memorandum, as defined below, is not an amendment of this Agreement.
3.5.2 Changes Requiring an Amendment. Unless otherwise required
by law, neither an amendment to the Development Plan Approval(s) or the approval of a
Future Development Approval shall require an amendment of this Agreement unless the
amendment:
3.5.2.1 Materially alters the permitted uses of the Property as a
whole in a manner inconsistent with the procedures established in the Specific Plan;
3.5.2.2 Increases the density or intensity of use of the Property
as a whole in a manner inconsistent with the procedures established in the Specific
Plan; or
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3.5.2.3 Increases the maximum height and size of permitted
buildings. Notwithstanding anything to the contrary herein, an amendment of this
Agreement is not required if OWNER pursues entitlements, permits or approvals
pursuant to a waiver of vested rights as provided for in Section 4.1.
. 3.5.3 Procedure. Except as set forth in Section 3.5.5 below, the
proce~ure for proposing and adopting an amendment to this Agreement shall be the
same as the procedure required for entering into this Agreement in the first instance.
3.5.4 Consent. Any amendment to this Agreement shall require the
written consent of both the CITY and the OWNER whose portion of the Property would
be materially affected by the amendment. No amendment to all or any provision of this
Agreement shall be effective unless set forth in writing, signed by duly authorized
representatives of the CITY and the applicable OWNER, and adopted pursuant to legal
requirements imposed on CITY. An amendment of this Agreement does not require the
consent of an End User, Merchant Builder or Development Transferee unless such
person or entity has uncompleted obligations under this Agreement. To the extent the
consent of the OWNER that did not initiate the amendment is necessary, that OWNER
shall not unreasonably withhold its consent. Notwithstanding the above, that OWNER
shall consent to the amendment on or before the thirtieth (30th) day after receipt of
notice of the initiation of the amendment if, as determined in that OWNER's reasonable
business judgment, that proposed amendment will not have a material adverse impact
on the Development of that OWNER's portion of the Property.
3.5.5 Operating Memoranda. The parties acknowledge that
refinements and further development of the Project may demonstrate that changes are
appropriate with respect to the details and performance of the parties under this
Agreement. The parties desire to retain a certain degree of flexibility with respect to the
details of the Development Plan and with respect to those items covered in general
terms under this Agreement. If and when the parties mutually find that nonsubstantive
changes, adjustments, or clarifications are appropriate to further the intended purposes
of this Agreement, and such are not materially inconsistent with the Development Plan
Approval(s), they may, unless otherwise required by law, effectuate such changes,
adjustments, or clarifications without amendment to this Agreement through one or
more operating memoranda mutually approved by the City Manager, or designee, on
behalf of the CITY and by any corporate officer or other person designated for such
purpose in a writing signed by a corporate officer on behalf of OWNER, which, after
execution, shall be attached hereto as addenda and become a part hereof. Unless
otherwise required by law or by the Development Plan Approval(s), no such changes,
adjustments, or clarifications shall require prior notice or hearing, public or otherwise.
Nothing herein shall authorize the delegation of authority to the City Manager, or
designee, contrary to California or Federal Law.
3.6 Future Amendments to Develooment Plan Aooroval(s}. The following
rules apply to future amendments to the Development Plan Approval(s), except that
Section 3.5 shall control with respect to a nonsubstantive amendment of this Agreement
and Section 3.7 shall control with respect to Future Development Approvals:
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3.6.1 OWNER's Written Consent. It is contemplated by the parties that
mutually agreed upon amendments to the Development Plan Approval(s) may be
necessary. Any amendments to the Development Plan Approval(s) to which OWNER
does not agree in writing shall not apply to the Property or the Project while this
Agreement is in effect.
3.6.2 Concurrent Development Agreement Amendment. Any other
Development Plan amendment requiring amendment of this Agreement, as provided for
in Section 3.5 hereof, shall be processed concurrently with an amendment to this
Agreement in the manner required by law.
3.6.3 Effect of Amendment. Except as expressly set forth within this
Agreement, an amendment of the other Development Plan Approval(s) will not alter,
affect, impair or otherwise impact the rights, duties and obligations of the parties under
this Agreement. To the extent an amendment to the Development Plan Approval(s) is
approved in accordance with Section 3.6.1..the amendment shall constitute for all
purposes a Development Plan Approval and shall be treated as if it were in exjstence on
the Agreement Date.
3.7 Future Development Approvals.
3.7.1 Exercise of CITY Discretion. In connection with Future
Development Approval or any other actions which the CITY is expressly permitted to
make under this Agreement relating to the Project, the CITY shall exercise its discretion
or take action in a manner which complies and is consistent with the Development Plan
Approval(s) and the Existing Regulations.
3.7.2 Concurrent Development Agreement Amendment. Any Future
Development Approval requiring amendment of this Agreement, as provided for in
Section 3.5 hereof, shall be processed concurrently with an amendment to this
Agreement.
3.7.3 Effect of Future Development Approvals. Except as expressly
set forth within this Section 3.7, a Future Development Approval will not alter, affect,
impair or otherwise impact the rights, duties and obligations of the parties under this
Agreement. To the extent a Future Development Approval is approved in accordance
with Sections 3.7.1 and 3.7.2, the Future Development Approval shall constitute for all
purposes a Development Plan Approval and shall be treated as if it were in existence on
the Agreement Date.
4. Obllaations of the Parties.
4.1 Benefits to CITY. The direct and indirect benefits the CITY (including,
without limitation the existing and future residents of the CITY) will receive from the
approval of the Development Plan Approval(s) generally include, but are not limited to,
the items identified below. Nothing in the Development Plan Approval(s) or otherwise
obligate OWNERS to construct the Development or any part thereof. OWNER further
reserves the rightto waive, in whole or in part, the vested rights afforded by the
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Development Plan Approval(s), and pursue entitlements, permits or approvals other
than those provided for in the Development Plan Approval(s).
4.1.1 Growth Management. The Project conforms to the CITY's effort to
manage growth through the use of, among other things, comprehensive planning and
design, project-wide continuity of landscaping and architectural design, design
standards and layout concepts exceeding the CITY's standards for residential
development, and the village-center concept.
4.2 DeveloDment Fees.
4.2.1 Fee Rates. The CITY hereby agrees that neither the Property
OWNER or Merchant Builder, nor except as provided hereunder the Development shall
be subject to any new or revised fees or charges, including, without limitation,
Development Impact Fees, that the CITY may enact, adopt, or impose on or after the
Agreement Date.
4.2.2 Processing and Application Fees. OWNER shall pay the
application and processing fees customarily imposed on the type of entitlement sought
at the rate, and in the amount, imposed by CITY pursuant to the fee schedule,
resolution or ordinance applicable to all projects in the CITY and in effect at the time the
application is deemed complete and accepted by CITY for action.
4.2.3 Fees for the KADING Property. Notwithstanding anything to the
contrary, the CITY shall charge Development Impact Fees in the amount the CITY
charged, in all categories, on March 16, 2004. If a fee did not exist on that date then the
fee currently charged shall be charged to the OWNER.
4.2.3.1 TUMF Fees for the KADING Property. The CITY and
OWNER acknowledge that a Traffic Uniform Mitigation Fee (the "TUMF") program has
been adopted by the CITY. The CITY and OWNER agree that the OWNER shall pay all
fees due under this program as and when due.
4.3 Related Real ProDertv Conveyances: Conditions to Development
AQreement.
4.3.1 Intent of the Parties. The CITY and OWNER agree that the
entitlements, vesting and other rights that will allow OWNER to develop the Project in
accordance with the Development Plan Approval(s), along with the timely completion
and performance of the real estate transactions and the related agreements described
hereafter are a material component of the consideration each party has relied upon in
.. its respective decision to enter into this Agreement. OWNER and the CITY, individually
and collectively, represent that neither party would have entered into this Agreement but
for these commitments. Termination of this Agreement terminates the obligation of the
applicable party to perform with respect to those items discussed in Section 4.3 and the
applicable party shall only be required to perform the obligations set forth in the other
Development Plan Approval(s).
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5. Indemnification. Except to the extent of the active negligence or willful
misconduct of the Indemnified Parties (as defined below), KADING agrees to defend the
CITY and its agents, officers, contractors, attorney, and employees (the "Indemnified
Parties") from and against any claims or proceeding against the Indemnified Parties to
set aside, void or annul the approval of this Agreement. If the CITY or Kading, in their
reasonable discretion, do not desire to settle such lawsuit or claim, it may notify the
other Party of the same, in which event the other Party may still elect to settle the
lawsuit or claim as to itself, but the non-settling party may elect to continue such lawsuit,
at their cost and expense, so long as: (i) with respect to the CITY, the CITY's decision is
predicated upon a legitimate and articulated threat to either the exercise of its police
powers or a risk of harm to those present within the CITY; or (ii) with respect to the
other Party, the decision is predicated upon a legitimate and articulated threat to the
Development of the Property.
6. Relationship of Parties. OWNER is not the agent or employee of the CITY.
The CITY and OWNER hereby renounce the existence of any form of joint venture or
partnership between them, and agree that nothing contained in this Agreement or in any
document executed in connection with the Project shall be construed as making the
CITY and OWNER joint ventures or partners.
7. Periodic Review of Compliance with Aareement.
7.1 Periodic Review. The CITY and OWNER shall review this Agreement
once every 12-month period from the Effective Date until the Agreement terminates.
The CITY shall notify OWNER in writing of the date for review at least thirty (30) days
prior thereto.
7.2 Good Faith Compliance. During each periodic review, OWNER shall be
required to demonstrate good faith compliance with all material tE:lrms of this Agreement.
The parties recognize that this Agreement and the documents incorporated herein could
be deemed to contain hundreds of requirements and that evidence of each and every
requirement would be a wasteful exercise of the parties' resources. Accordingly,
OWNER shall be deemed to have satisfied its good faith compliance when it presents
evidence of substantial compliance with the material provisions of this Agreement.
Generalized evidence or statements of compliance shall be accepted in the absence of
any evidence that such evidence is untrue.
7.3 Failure to Conduct Annual Review. The failure of the CITY to conduct
the annual review shall not constitute, or be asserted by OWNER or CITY as a breach
of this Agreement.
7.4 Initiation of Review bv City Council. In addition to the annual review,
the City Council may at any time initiate a review of this Agreement by giving written
notice to OWNER. The Notice must describe in detail the specific issues which caused
the CITY to question OWNER'S good faith compliance and the evidence the CITY
. believes is necessary for the review. Within thirty (30) days following receipt of such
notice, OWNER shall submit evidence to the City Council of OWNER's good faith
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compliance with this Agreement and such review and determination shall proceed in the
same manner as provided for the annual review. The City Council shall initiate its
review pursuant to this Section 7.4 only if it has probable cause to believe the CITY's
general health, safety or welfare is at risk as a result of specific acts or failures to act by
OWNER in violation of this Agreement.
7.5 Administration of Aareement. Any final decision by the CITY staff
concerning the interpretation and administration of this Agreement and Development of
the Property in accordance herewith may be appealed by OWNER first to the Planning
Commission and thereafter to the City Council, provided that any such appeal shall be
filed with the City Clerk within thirty (30) days after OWNER receives written notice that
the staff decision is final all as pursuant to routine planning appeal procedures. The
City Council shall render, at a noticed public hearing, its decision to affirm, reverse or
modify the staff decision within thirty (30) days after the appeal was filed.
7.6 Availabilltvof Documents. If requested and reimbursed for all costs, by
OWNER, the CITY agrees to provide to OWNER copies of any documents, reports or
other items reviewed, accumulated or prepared by or for the CITY in connection with
any periodic compliance review by the CITY, provided OWNER reimburses the CITY for
all reasonable and direct costs and fees incurred by the CITY in copying the same. The
CITY shall respond to OWNER's request on or before ten (10) business days have
elapsed from the CITY's receipt of such request.
8. Events of Default: Remedies and Termination. Unless amended as provided
in Section 3.5, or modified or suspended pursuant to Government Code Section
65869.5 or terminated pursuant to this Section 8, this Agreement is enforceable by any
party hereto.
8.1 Defaults bv OWNER. If, after following the procedures established in
Section 7 hereof, the CITY determines on the basis of a preponderance of the evidence.
that OWNER has not complied in good faith with the material terms and conditions of
this Agreement, the CITY shall, by written notice to OWNER specify the manner in
which the allegedly defaulting party has failed to so comply and state the steps the
allegedly defaulting party must take to bring itself into compliance. If, within thirty (30)
days after the effective date of notice from the CITY specifying the manner in which the
allegedly defaulting party has failed to so comply, the allegedly defaulting party does not
commence all steps reasonably necessary to bring itself into compliance and thereafter
diligently pursue such steps to completion, then the allegedly defaulting party shall be
deemed to be in default under the terms of this Agreement and the CITY may terminate
this Agreement with respect solely to the allegedly defaulting party's property pursuant
to Government Code Section 65865.1 or may seek specific performance as set forth in
Section 8.3. ---
8.2 Defaults bv CITY. If OWNER determines on the basis of a
preponderance of the evidence that the CITY has not complied in good faith with the
terms and conditions of this Agreement, OWNER shall, by written notice to the CITY,
specify the manner in which the CITY has failed to so comply and state the steps the
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CITY must take to bring itself into compliance. If, within sixty (60) days after the
effective date of notice from OWNER specifying the manner in which the CITY has
failed to so comply, the CITY does not commence all steps reasonably necessary to
bring itself into compliance as required and thereafter diligently pursue such steps to
completion, then the CITY shall be deemed to be in default under the terms of this
Agreement and OWNER may terminate this Agreement and, in addition, may pursue
any other remedy available at law or equity, including specific performance as set forth
in Section 8.3.
I
8.3 Specific Performance Remedv. Due to the size, nature and scope of the
Project, it may not be practical or possible to restore the Property to its natural condition
once implementation of this Agreement has begun. After such implementation,
OWNER may be foreclosed from other choices it may have had to utilize the Property
and provide for other benefits. CITY and OWNER has already invested significant time
and resources and performed extensive planning and processing of the Project in
agreeing to the terms of this Agreement and will be investing even more significant time
and resources in implementing the Project in reliance upon the terms of this Agreement,
and it may not be possible to determine the sum of money which would adequately
compensate OWNER for such efforts. For the above reasons, the CITY and OWNER
agree that damages may not be an adequate remedy if the CITY or OWNER fails to
carry out its obligations under this Agreement and that CITY or OWNER shall have the
right to seek and obtain specific performance as a remedy for any breach of this
Agreement. Notwithstanding the foregoing, if the CITY is authorized by Section 8.4.1 to
withhold an approval or permit upon a specified condition being satisfied by OWNER in
the future, and if OWNER then fails to satisfy such condition, the CITY may be entitled
to specific performance for the sole purpose of causing that nonperforming party,and
only that nonperforming party, or any party with an obligation to so perform the
condition, to satisfy such condition. The CITY's right to specific performance shall be
limited to those circumstances set forth above, and the CITY shall have no right to seek
specific performance to cause OWNER or a Development Transferee to otherwise
proceed with the Development of the Project in any manner, with the express exception
of the Off-Site Improvements and the grant of real property for the Interchange
Improvements.
8.4 Institution of Leaal Action. Any legal action hereunder shall be heard by
a reference from the Riverside County Superior Court pursuant to the reference
procedures of the California Code of Civil Procedure Sections 638, et seq. OWNER
and the CITY shall agree upon a single referee who shall then try all issues, whether of
fact or law, and report a finding and judgment thereon and issue all legal and equitable
relief appropriate under the circumstances of the controversy before him. If OWNER
and the CITY are unable to agree on a referee within ten (10) days of a written request
to do so by either party hereto, either party may seek to have one appointed pursuant to
the California Code of Civil Procedure Section 640. The cost of such proceeding shall
initially be borne equally by the parties. Any referee selected pursuant to this Section
8.4 shall be considered a temporary judge appointed pursuant to Article 6, Section 21 of
the California Constitution.
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8.4.1 Effect of Noncompliance. Notwithstanding the foregoing, to the
extent the Development Plan Approval(s) expressly provide(s) that Development of the
Project or a portion thereof is directly dependent upon the performance of material
obligations assumed by OWNER or a Development Transferee, which material
obligations have not been performed, the CITY may, in its reasonable discretion,
withhold any approvals, including, without limitation, certificates of occupancy, with
respect to those directly dependent portions of the Project from OWNER and/or
Development Transferee until such obligations have been substantially performed.
CITY agrees that CITY will not withhold approvals if the OWNER or the Development
Transferee provides security for the performance of any of the obligations.
8.4.1.1 Non Compliance by KADING. Non compliance by
OWNER with respect to any material term and condition of this Agreement assumed by
OWNER shall entitle CITY to pursue any and all of its rights under this Agreement
against OWNER. Such noncompliance by OWNER shall be deemed a default, grounds
for specific performance or grounds for termination hereof with respect to, and
constitute cause for CITY to initiate enforcement action against and/or withhold any
approvals from Development Transferee, or other persons then owning or holding
interest in the Property or any portion of the Property, regardless of ownership.
8.5 Estoppel Certificates. A party may at any time deliver written notice to
the other party requesting an estoppel certificate (the "Estoppel Certificate"). A party
receiving a request for an Estoppel Certificate shall provide a signed certificate to the
requesting party within thirty (30) days after receipt of the request. The City Manager or
any person designated by the City Manager may sign Estoppel Certificates on behalf of
the CITY. Any officer or member of a private party may sign on behalf of that party. An
Estoppel Certificate is intended to be relied on by assignees and mortgagees. If that
one party requests an Estoppel Certificate from the other, the requesting party shall
reimburse the other party for all reasonable and direct costs and fees incurred by such
party with respect thereto. The Estoppel Certificate shall address issues such as
whether:
8.5.1 The Agreement is in full force and effect and is a binding obligation
of the parties.
8.5.2 The Agreement has been amended or modified either orally or in
writing and, if so amended, identifying the amendments.
8.5.3 A default in the performance of the requesting party's obligations
under the Agreement exists and, if a default does exist, the nature and amount of any
default.
9. Waivers and Delavs.
9.1 No Waiver. Failure by a party to insist upon the strict performance of any
of the provisions of this Agreement by the other party, and failure by a party to exercise
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its rights upon a default by the other party hereto, shall not constitute a waiver of such
party's right to demand strict compliance by such other party in the future.
9.2 Third Parties. Non-performance shall not be excused because of a
failure of a third person, except as provided in Sections 9.3 or 9.4.
9.3 Force Maieure. A party shall not be deemed to be in default where failure
or delay in performance of any of its obligations under this Agreement is caused by
floods, earthquakes, other Acts of God, fires, wars, riots or similar hostilities, strikes and
other labor difficulties beyond that party's control, action or inaction by the CITY, which
actions or inactions are breaches of any term of this Agreement, other governmental
bodies or public utilities other than those related to the normal and customary
processing of Future Development Approvals or any modifications to the Development
Plan Approval(s), judicial decisions, litigation regarding the Development Plan
Approval(s) or Future Development Approvals or other similar events. To the extent
applicable to the Project and Property pursuant to Section 3.4 hereof, government
regulations (including, without limitation, local, state and federal environmental and
natural resource regulations), voter initiative or referenda or moratoria (including,
without limitation, any "development moratorium" as that term is applied in Government
Code Section 66452.6) constitute force majeure events.
9.4 Extensions. The Term of this Agreement and the time for performance
by a party of any of its obligations hereunder or pursuant to the other Development Plan
Approval(s) shall be extended by the actual period of time that any of the events
described in Section 9.3 exist and/or prevent performance of such obligations.
Notwithstanding anything to the contrary herein, the performance by CITY of its
obligations shall not be delayed or extended by the action o~ inaction of the CITY.
9.5 Notice of Delav. OWNER shall give immediate notice to the CITY of any
delay which OWNER anticipates or believes to have occurred as a result of the
occurrence of any of the events described in Sections 9.3 or 9.4. In no event, however,
shall notice of a delay of any length be given later than thirty days after the end of the
delay or ten (10) days before the end of the Term (unless the cause of the delay arises
during that time), whichever comes first.
10. Notices. All notices required or provided for under this Agreement shall be in
writing and delivered in person, sent by certified mail, postage prepaid, return receipt
requested or by Federal Express or other similar nationwide overnight delivery service.
Notices required to be given to the CITY shall be addressed as follows:
City of Temecula
43200 Business Park Drive
Post Office Box 9033
Temecula, CA 92589-9033
Attention: Planning Director
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With a copy to:
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Richards, Watson & Gershon
Thirty-Eighth Floor
333 South Hope Street
Los Angeles, CA 90071-1469
Attention: Peter M. Thorson, City Attorney
Notices required to be given to OWNER shall be addressed as follows:
AGK Group, LLC
35411 Paseo Viento
Capistrano Beach, CA 92624
Attention: A.G. Kading
Any notice given as required by Section 10 shall be deemed given only if in writing and.
upon delivery as provided for in this Section 10. A party may change its address for
notices by giving notice in writing to the other party as required by this Section 10 and
thereafter notices shall be addressed and transmitted to the new address.
11. Attornevs' Fees. If legal action is brought by any party against another for
breach of this Agreement, including actions derivative from the performance of this
Agreement, or to compel performance under this Agreement, the prevailing party shall
be entitled to an award of its costs, including reasonable attorneys' fees, and shall also
be entitled to recover its contribution for the costs of the referee referred to in Section
8.4 above as an item of damage and/or recoverable costs.
12. Recordina. This Agreement and any amendment or cancellation hereto shall be
recorded, at no cost to the CITY, in the Official Records of Riverside County by the City
Clerk within the period required by Section 65868.5 of the Government Code.
13. Effect of Aareement on Title.
13.1 Effect on Title. OWNER and the CITY agree that this Agreement shall
not continue as an encumbrance against any portion of the Property as to which this
Agreement has terminated or released.
13.2 Encumbrances and Lenders' Riahts. The mortgagee of a mortgage or
beneficiary of a deed of trust encumbering the Property, or any part thereof, and their
successors and assigns shall, upon written request to CITY, be entitled to receive from
CITY written notification of any default by OWNER of the performance of OWNER's
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obligations under the Agreement which has not been cured within the time frame
established in Section 8.1 hereof.
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13.2.1 Notwithstanding OWNER's default, this Agreement shall not be
terminated by CITY as to any mortgagee or beneficiary to whom notice is to be given
and to which either or the following is true:
(i) the mortgagee or beneficiary cures any default by OWNER
involving the payment of money within ninety (90) days after receipt from CITY of the
written notice of default;
(ii) as to defaults requiring title or possession of the Property or
any portion thereof to effectuate a cure: (i) the mortgagee/beneficiary agrees in writing,
within ninety (90) days after receipt from CITY of the written notice of default, to perform
the proportionate share of OWNER's obligations under this Agreement allocable to that
part of the Property in which the mortgagee/beneficiary has an interest conditioned
upon such mortgagee's/beneficiary's acquisition of the Property or portion thereof by
foreclosure (including a trustee sale) or by a deed in lieu of foreclosure; (ii) the
mortgagee/beneficiary commences foreclosure proceedings to reacquire title to the
Property or applicable portion thereof within said ninety (90) days and thereafter
diligently pursues such foreclosure to completion, and (iii) the mortgagee/beneficiary
promptly and diligently commences to cure such Default after obtaining title or
possession.
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13.2.2 Notwithstanding Section 13.2.1 of this Agreement, if any
mortgagee/beneficiary is prohibited from commencing or prosecuting foreclosure or
other appropriate proceedings including by any process of injunction issued by any
court or by reason of any action by any court having jurisdiction of any bankruptcy or
insolvency proceeding involving OWNER, the times specified in Section 13.2.1 of this
Agreement for commencing or prosecuting foreclosure or other proceedings shall be
extended for the period of the prohibition.
13.2.3 Neither entering into this Agreement nor a breach of this
Agreement shall defeat, render invalid, diminish or impair the lien of any existing or
future mortgage or deed of trust on the Property made in good faith and for value.
14. Severability of Terms. If any term, provision, covenant or condition of this
Agreement shall be determined invalid, void or unenforceable, the remainder of this
Agreement shall not be affected thereby if the tribunal finds that the invalidity was not a
material part of consideration for either Party the Agreement as a whole. If the tribunal
finds that the invalidity was a material part of the consideration, this Agreement will
terminate unless CITY and OWNER agree to amend this Agreement as provided for
herein. Upon a termination arising from the application of this Section 14, each Party
agrees the Specific Plan shall suspend as to all unpermitted development activity
pending the CITY's determination regarding repeal or modification of the same.
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15. Subseauent Amendment to Authorlzlna Statute. This Agreement has been
entered into in reliance upon the provisions of the Development Agreement Legislation
in effect as of the Agreement Date. Accordingly, subject to Section 3.2.2 above, to the
extent that subsequent amendments to the Government Code would affect the
provisions of this Agreement, such amendments shall not be applicable to this
Agreement unless necessary for this Agreement to be enforceable or required by law or
unless this Agreement is modified pursuant to the provisions set forth in this Agreement.
16. Rules of Construction and Miscellaneous Terms.
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16.1 Interpretation and Governlna Law. The language in all parts of this
Agreement shall, in all cases, be construed as a whole and in accordance with its fair
meaning. This Agreement and any dispute arising hereunder shall be governed and
interpreted in accordance with the laws of the State of California. The parties
understand and agree that this Agreement is not intended to constitute, nor shall be
construed to constitute, an impermissible attempt to contract away the legislative and
governmental functions of the CITY, and in particular, the CITY's police powers. In this
regard, the parties understand and agree that this Agreement shall not be deemed to
constitute the surrender or abnegation of the CITY's governmental powers over the
Property or any decision arising from the Agreement, directly or indirectly.
16.2 Section Headlnas. All section headings and subheadings are inserted
for convenience only and shall not affect any construction or interpretation of this
Agreement.
16.3 Gender. The singular includes the plural; the masculine gender includes
the feminine; "shall" is mandatory, "may" is permissive.
16.4 No Joint and Several L1abllltv. No breach hereof by OWNER, or
Development Transferee shall constitute a breach by the non breaching party. Any
remedy, obligation, or liability, including but not limited to the obligations to defend and
indemnify the CITY, arising by reason of such breach shall be applicable solely to the
party that committed the breach. However, the CITY shall send a copy of any notice of
violation to all OWNERS and Development Transferee, including those not in breach.
16.5 Covenant of Good Faith and Fair Dealina. No party shall do anything
which shall have the intentional effect of harming or injuring the right of the other parties
to receive the benefits provided for in this Agreement; each party.shall refrain from
doing anything intentionally which would render its performance under this Agreement
impossible; and each party shall do everything which this Agreement contemplates that
such party shall do in order to accomplish the objectives and purposes of this
Agreement.
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16.6 No Waiver of Vestlna. Nothing in this Agreement shall be construed as
limiting or impairing any vested rights to proceed with the Development or use of the
Property arising independently from entitlements, including those approved for the
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Project, issued by the CITY or others prior to, concurrently with, or subsequent to the
approval of this Agreement, Federal and State Constitutions, statutes, or decisional law.
16.7 Time of Essence. Time is of the essence regarding each provision of this
Agreement of which time is an element.
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16.8 Recitals. All Recitals set forth herein are incorporated in this Agreement
as though fully set forth herein.
16.9 Entire Aareement. This Agreement constitutes the entire agreement
between the parties with respect to the subject matter hereof, and the Agreement
supersedes all previous negotiations, discussion and agreements between the parties,
and no parol evidence of any prior or other agreement shall be permitted to contradict or
vary the terms hereof.
17. Extension of Maps. In accordance with Government Code Section 66452.6(a),
any tentative map which relates to all or a portion of the Property shall be extended for
the greater of (i) the Term of the Agreement or (ii) expiration of the tentative map
pursuant to Section 66452.6.
18. Not for Benefit of Third Parties. This Agreement and all provisions hereof are
for the exclusive benefit of the CITY and OWNER and its assignees pursuant to Section
2.5 and shall not be construed to benefit or be enforceable by any third party.
19. Attachments. The following attachments are hereby incorporated by reference
as if fully set out in the body of this Agreement.
Attachments Description
1 Legal Description of the OWNER Property
2 Project Actions and Approvals
20. Counterparts. This Agreement may be executed in counterparts, each of which
shall be deemed an original.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on
the day and year dated below.
Dated:
,2005
"CITY"
CITY_ 9F TEMECULA, a municipal
corporation
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By:
Name:
Title: Mayor
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ATTEST:
City Clerk
APPROVED AS TO FORM:
City Attorney
Dated:
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,2005
"OWNER"
,a
By:
Name:
Title:
26
4120105
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State of California
)
) ss
)
County of Riverside
On before me, , personally
appeared , personally known to me or proved
to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are
subscribed to the within instrument and acknowledged to me that he/she/they executed
the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s)
on the instrument the person(s), or the entity upon behalf of which the person(s) acted,
executed the instrument.
Witness my hand and official seal.
Signature of Notary
State of California )
) ss
County of Riverside )
On before me, , personally
appeared , personally known to me or proved
to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are
subscribed to the within instrument and acknowledged to me that he/she/they executed
the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s)
on the instrument the person(s), or the entity upon behalf of which the person(s) acted,
executed the instrument.
Witness my hand and official seal.
Signature of Notary
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11086-0092\818544v1.doc
ATTACHMENT "1"
(Legal Description of the Property)
1-1
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ATTACHMENT "2"
(Project Actions and Approvals)
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TABLE OF CONTENTS
PAGE
1. Definitions. . ..... ..... ...... ............. ..... ...... ....... ...... ....... ..... ..... ..... ... ... ..... ....... ...... ........3
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2. General Provisions. ............ ....... ......... ................. .... ........... ......... ..... .... ... ....... ..... ..5
2.1 Binding Covenants ....................................................................,................5
2.2 Interest of OWNER.....................................................................................6
2.3 Term........................................................................................................... 6
2.4 Termination. ... ......... ................ ..... ..............................................................6
2.5 Transfers and Assignments. ............................... ....................... .................6
3. Development Provisions. ......................................................................................8
3.1 Vesting. .................................. .......................... ..... .............................. :......8
3.2 Reserved Authority. ..................................................................................11
3.3 Further Assurances to OWNER Regarding Exercise of
Reserved Authority ...................................................................................12
3.4 Consistent and Inconsistent Enactments.................................................. 12
3.5 Amendment of Development Agreement..................................................13
3.6 Future Amendments to Development Plan Approval(s) ...........................14
3.7 Future Development Approvals. ...............................................................15
Obligations of the Parties. ...................................................................................15
4.1 Benefits to CITY .......................................................................................15
4.2 Development Fees. ..................................................................................16
4.3 Related Real Property Conveyances; Conditions to
Development Agreement. ...................................... ............. ................ ......16
4.
5. Indemnification .......... ..... ..... ......... ..... .................. ............................................. ...17
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6. Relationship of Parties ........................................................................................17
7. Periodic Review of Compliance with Agreement.................................................17
7.1 Periodic Review........................................................................................17
7.2 Good Faith Compliance............................................................................17
7.3 Failure to Conduct Annual Review...........................................................17
7.4 Initiation of Review by City Council ..........................................................17
7.5 Administration of Agreement ....................................................................18
7.6 Availability of Documents .........................................................................18
Events of Default: Remedies and Termination................................................... 18
8.1 Defaults by OWNER.................................................................................18
8.2 Defaults by CITY ......................................................................................18
8.3 Specific Performance Remedy.................................................................19
8.4 Institution of Legal Action ..............................................;..........................19
8.5 Estoppel Certificates ................................................................................20
8.
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TABLE OF CONTENTS
(Continued)
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9. Waivers and Delays. ...........................................................................................20
9.1 No Waiver. ...... .............. .............. ....... ...................................... .............. ...20
9.2 Third Parties ................. ..... ........ ........ ........... .............. ............. ........ ........ .21
9.3 Force Majeure ...... ....... .............. ................... ........................... ........ .........21
9.4 Extensions................................................................................................ 21
9.5 Notice of Delay .........................................................................................21
10. Notices ..... ... ........................ ........... ............................. '" .... ... ............. ........ ..... ....21
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11. Attorneys' Fees ...................................................................................................22
12. Recording............................................................................................................ 22
13. Effect of Agreement on Title................................................................................22
13.1 Effect on Title ...........................................................................................22
13.2 Encumbrances and Lenders' Rights.........................................................22
14. Severability of Terms ..........................................................................................23
15. Subsequent Amendment to Authorizing Statute .................................................24
16. Rules of Construction and Miscellaneous Terms. ...............................................24
16.1 Interpretation and Governing Law ............................................................24
16.2 Section Headings .....................................................................................24.
16.3 Gender.................................................................................................... .24
16.4 No Joint and Several Liability ...................................................................24
16.5 Covenant of Good Faith and Fair Dealing ................................................24
16.6 No Waiver of Vesting................................................................................24
16.7 Time of Essence..................... ~................................................................. 25
16.8 Recitals..................................................................................................... 25
16.9 Entire Agreement .....................................................................................25
17. Extension of Maps............... ................... .......................... .................. .................25
18. Not for Benefit of Third Parties............................................................................25
19. Attachments ........ ................... ........... ................. ....... .... ..... ... ........ ;......... ... ... .......25
20. Counterparts " ............. :.................. ..... ... .................... ....... ... ... ....... .......... ...........25 .
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