HomeMy WebLinkAbout060490 PC Agenda AGENDA
TEMECULA PLANNING COMMISSION
AN ADJOURNED REGULAR MEETING
VAIL ELEMENTARY SCHOOL
June 4, 1990
CALL TO ORDER:
ROLL CALL:
Blair, Chiniaeff, Fahey, Ford, and Hoagland.
PUBLIC COMMENTS
A total of 15 minutes is provided so members of the public can
address the Commissioners on items that are not listed on the
Agenda. Speakers are limited to three (3) minutes each. If
you desire to speak to the Commissioners about an item not
listed on the Agenda, a pink "Request to Speak" form should be
filled out and filed with the Commissioner Secretary.
When you are called to speak, please come forward and state
your name and address.
For all other agenda items a "Request to Speak" form must be
filed with the Planning Secretary before Commission gets to
that item. There is a three (3) minute time limit for
individual speakers.
COMMISSION BUSINESS
1. Election of Chairperson - Mayor Parks Presiding
1.1 Select member to serve as Chairperson for Planning
Commission period of one year.
2. Election of Vice-Chairman - Mayor Parks Presiding
2.1 Select member to serve as Vice-Chairman for the Planning
Commission period of one year.
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Draw Lots to Establish Term of Office
Recommendation
Staff recommends draw lots to establish terms of office.
3.1 Discussion
Resolution Adopting Rules of Order of conduct
4.1 Adopt a resolution entitled:
RESOLUTION NO. PC 90-
A RESOLUTION OF THE PLANNING COMMISSION OF THE CITY OF
TEMECULA ADOPTING RULES OF ORDER FOR THE CONDUCT OF
PLANNING COMMISSION MEETINGS.
Resolution DesiQnating Locations
and/or Resolutions
5.1
fOE Postinq of Ordinances
Adopt a resolution entitled:
RESOLUTION NO. PC 90
A RESOLUTION OF THE PLANNING COMMISSION OF THE CITY OF
TEMECULADESIGNATING LOCATIONS FOR POSTING OF ORDINANCES
AND/OR RESOLUTIONS REQUIRED BY LAW TO BE PUBLISHED OR
POSTED.
Resolution Establlshinq Term of Office
6.1
for the chalrDerson
Adopt a resolution entitled:
RESOLUTION NO. PC 90
A RESOLUTION OF THE PLANNING COMMISSION OF THE CITY OF
TEMECULA ESTABLISHING THE TERM OF OFFICE FOR THE
CHAIRPERSON.
DISCUSSION ITEMS
7.
SUbstantial conformance Policy
Recommendation
Staff recommends that the Planning Commission Review and
Consider staff's analysis and recommendations and Provide
Direction for any policies or ordinance changes determined to
be appropriate.
-3-
7.1
7.2
Policy Clarification and Alternatives --
Substantial Conformance and Revised Permit Applications
Discussion
Development A~reement No. 4 - Vail Meadows
Recommendation
Staff recommends that the Planning Commission Review and
Consider information submitted by City Attorney relative to
assignment of interest provisions in the Specific Plan
Development Agreement No. 4 - Vail Meadows. No action
recommended.
8.1 Discussion
Next meeting: Monday, June 18, 1990, at 6:00 p.m., Vail Elementary
School, 29915 Mira Loma Drive, Temecula, California 92390.
CITY OF TEMECULA
AGENDA REPORT
AS#: #3 TITLE: Planning Commission DEPT ~? y~
HTG: 6/4/90 Terms of Office CITY T
DEPT: cc CITY HGR
RECOIOiENDATION:
Draw lots to establish terms of office.
BACKGROUND=
The City code (Ordinance No. 90-02) deals with prescribing the
terms of office for the City's first Planning Commission. The
following is the applicable provision of Section 2.06.060:
Term. The term of each commission member shall be three (3)
years with staggered terms. Initially, all five members may
be selected at once. In order to achieve staggered terms, one
member shall be appointed for a term of three (3) years; two
for terms of two (2) years; and two for terms of one (1) year,
said terms to be determined by drawing lots.
The appropriate lots have been prepared for the Commission's
selection.
JSG
RESOLUTION NO. PC
A RESOLUTION OF THE PLANNING
COh4MISSION OF THE CITY OF TEMECULA
ADOPTING RULES OF ORDER FOR THE
CONDUCT OF PLANNING COMMISSION
MEETINGS.
The Planning Commission of the City of Temecula does resolve, determine and
order as follows:
WHEREAS, The City Council of the City of Temecula has approved Resolution No.
90-04 adopting rules of order for conduct of City Council meetings, and;
WHEREAS, The Planning Commission of the City of Temecula also wishes to adopt
these rules of order,
NOW THEREFORE BE IT RESOLVED BY THE PLANNING COMMISSION of the
City of Temecula:
Section 1: That the Planning Commission hereby adopts by reference the
provisions of Resolution No. 90-04 (attached hereto as Exhibit A)
of the City Council of the City of Temecula.
Section 2: The Planning Director shall certify the adoption of this resolution.
APPROVED AND ADOPTED this 4th day of June, 1990.
ATTEST:
Chairperson
Ross Geller, Acting Planning Director
[SEAL]
2/Re$os/PC01 05/31/90 4:411~
s.ff/RZSllOlO EXHIBIT A
RESOLUTION NO. 90-D4
A RESOLUTION OF THE CITY COUNCIL OF THE CITY
OF TEMECULA ADOPTING RULES OF ORDER FOR THE
CONDUCT OF CITY COUNCIL MEETINGS.
THE CITY COUNCIL OF THE CITY OF TEMECULA DOES
RESOLVE AS FOLLOWS:
SECTION 1. RULES OF ORDER FOR CITY COUNCIL
MEETINGS.
The City Council shall conduct business by motion
in accordance with the following rules of order.
A. Obtaining the Floor- Any Councilmember
wishing to speak must first obtain the floor by being
recognized by the Mayor. The Mayor must recognize any
Councilmember who seeks the floor when appropriately
entitled to do so.
B. Motions. The Mayor or any member of the
council may call an action on any matter before the Council
by making a motion. Before the motion can be considered or
debated it must be seconded. Once the motion has been
properly made and seconded, the Mayor shall open the matter
for debate by offering the first opportunity to debate to
the moving party and, thereafter, to any Councilmember
properly recognized by the Mayor. Once the motion has been
fully debated and the Mayor calls for a vote, no further
debate will be allowed, provided however, Councilmembers may
be allowed to explain their vote.
C. Votina. All Councilmembers present at a
meeting when a motion comes up for a vote shall vote for or
against the motion or abstain. If the vote is a voice vote,
the Mayor shall declare the result and note for the record
all "yes" votes and all "no" votes. The Council may also
vote by roll call or voice vote. Regardless of the manner
of voting, the results reflecting all "yes" and "no" votes
must be clearly set forth for the record. In order to be
adopted a motion requires the "yes" vote of a majority of
the quorum present, unless the vote of three councilmembers
is required by statute, ordinance or resolution. An
abstention shall not be counted as a wyes" or 'no" vote but
the councilmember abstaining shall be counted for the
purpose of determining the quorum. A tie vote means no
action has been taken.
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sff/RESllo10
D. Procedural Rules of Order. Once the main
motion is properly placed on the floor, several related
motions may be employed in addressing the main motion, and
if properly made and seconded, must he disposed of before
the main motion can be acted upon. The following motions
are appropriate and may be made by the Mayor or any
Councilmember at any appropriate time during the discussion
of the main motion. They are listed in order of
precedence. The first three subsidiary motions are
nondebatable; the last three are debatable.
1. Subsidiary Motions·
Lay on The Table. Any Councilmember
may move to lay the matter under
discussion on the table. This
motion temporarily suspends any
further discussion of the pending
motion without setting a time
certain to resume debate. In order
to bring the matter back before the
Council, a motion must be adopted
that the matter be taken from the
table. A motion to take from the
table must be made at the same
meeting at which it was placed on
the table or at the next meeting of
the Council held within five
calendar days of the original
meeting. Otherwise the motion that
was tabled dies, although it can be
raised later as a new motion.
Move Previous Ouestion. Any
Councilmember may move to
immediately bring the question being
debated by the Council to a vote,
suspending any further debate. The
motion must be made and seconded
without interrupting one who already
has the floor. A majority vote of
the quorum present is required for
passage.
Limit or Extends Limits of Debate.
Any Councilmember may vote to put
limits on the length of debate. The
motion must be made and seconded and
requires a majority vote of the
quorum present to pass.
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sff/RESll010
Postpone to a Time Certain. Any
Councilmember may move to postpone
debate and action on the motion to a
date and time certain.
Commit or Refer. Any Councilmember
may move that the matter being
discussed should be referred to
staff, a committee or a commission
for further study. The motion may
contain directions for the staff,
committee or commission, as well as
a date upon which the matter will be
returned to the Council's agenda.
If no date is set for returning the
item to the Council agenda, any
Councilmember may move, at any time,
to require that the item be returned
to the agenda.
Amend. Any Councilmember may amend
the main motion or any amendment
made to the main motion. Before the
main motion may be acted upon, all
amendments and amendments to the
amendments must first be acted
upon. An amendment must be related
to the main motion or amendment to
which it is directed. Any amendment
which substitutes a new motion
rather than amending the existing
motion is out of order and may be so
declared by the Mayor.
2. Motions of Privilege. Order and
Convenience. The following actions by the
Council are to insure orderly conduct of
meetings and for the convenience of the Mayor
and Councilmembers. These motions take
precedence over any pending main or subsidiary
motion and may be debated except as noted.
Call for Orders of the Day. Any
Councilmember may demand that the
agenda be followed in the order
stated therein. No second is
required and the Mayor must comply
unless the Council, by majority
vote, sets aside the agenda order of
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sff/RESll010
the day. This motion is not
debatable.
0uestion of Privileqe. Any
Councilmember, at any time during
the meeting, may make a request of
the Mayor to accommodate the needs
of the Council or his/her personal
needs for such things as reducing
noise, adjusting air conditioning,
ventilation, lighting, etc.
Validity of question is ruled on by
the Mayor.
~e~ess. Any Councilmember may move
for a recess. No second is required
and the Mayor must comply unless the
Council, by majority vote, set aside
the motion.
Adiourn. Any Councilmember may move
to adjourn at any time, even if
there is business pending. The
motion must be seconded and a
majority vote is required for
passage. The motion is not
debatable.
Point of Order. Any Councilmember
may require the Mayor to enforce the
rules of the Council by raising a
point of order. The point of order
shall be ruled upon by the Mayor.
~ppeal. Should any Councilmember be
dissatisfied with a ruling from the
Mayor, he/she may move to appeal the
ruling to the full Council. The
motion to appeal requires a second,
and the ruling of the Mayor may be
overturned by a majority vote·
Suspend the Rules. Any
Councilmember may move to suspend
the rules if necessary to accomplish
a matter that would otherwise
violate the rules. The motion
requires a second and a majority
vote is required for passage.
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sYf/RESll010
Division of Ouestion. Any
Councilmember may move to divide the
subject matter of a motion which is
made up of several parts in order to
vote separately on each part. This
motion may also be applied to
complex ordinances or resolutions.
Reconsider. Except for votes
regarding matters which are quasi-
judicial in nature or matters which
require a noticed public hearing,
the Council may reconsider any vote
taken at the same meeting, but no
later than the same or next regular
meeting, to correct inadvertent or
precipitant errors, or consider new
information not available at the
time of the vote. The motion to
reconsider must be made by a
Councilmember who voted on the
prevailing side, must be seconded
and requires a majority vote of the
quorum for passage, regardless of
the vote required to adopt the
motion being reconsidered. If the
matter is to be reconsidered at the
next regular meeting, a
Councilmember on the prevailing side
must ask the City Clerk to place the
matter on the agenda, or otherwise
comply with Government Code Section
54956.5. If the matter to
reconsider is successful, the matter
to be reconsidered takes no special
preference over other pending
matters and any special voting
requirements related thereto still
apply. Except pursuant to a motion
to reconsider, once a matter has
been determined and voted upon, the
same matter cannot be brought up
again at the same meeting.
Rescind, Repeal or Annu~. The
Council may rescind, repeal or annul
any prior action taken with
reference to any legislative matter
so long as the action to rescind,
repeal or annul complies with all
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~ff/RZSllOiO
the rules applicable to the initial
adoption, including any special
voting or notice requirements or
unless otherwise specified by law.
SECTION 2. COUNCIL AUTHORITY.
The Council shall have the authority to waive
provisions of the procedures established by this Resolution
unless the procedure is required. Failure of the Council to
follow the procedures established by this Resolution shall
not invalidate or otherwise affect any action of the
Council.
JanuarV
PASSED, APPROVED AND ADOPTED this 9th day of
, 1990.
RON PARKS, MAYOR
I HEREBY CERTIFY that the foregoing resolution was
duly adopted by the City Council of the City of Temecula at
a regular meeting thereof, held on the 9th day of
JanuarV , 1990 by the following vote of the Council:
AYES: 5 COUNCIL MEMBERS Birdsall, Lindemans,
Moore, Munoz, Parks
NOES: 0 COUNCIL MEMBERS None
ABSENT: 0 COUNCIL MEMBERS None
FRANK ALESHIRE
CITY CLERK
-6-
RESOLUTION NO. PC 90-
A RESOLUTION OF THE PLANNING
COMMISSION OF THE CITY OF TEMECULA
ESTABLISHING THE TERM OF OFFICE FOR
THE CHAIRPERSON.
The Planning Commission of the City of Temecula does resolve, determine and
order as follows:
WHEREAS, The City Council of the City of Temecula has approved Resolution No.
90-02, establishing the Temecula Municipal Code and;
WHEREAS, The Planning Commission of the City of Temecula wishes to establish the
term of office for the elected chairperson,
NOW THEEFOE BE IT RESOLVED BY THE PLANNING COMMISSION of the
City of Temecula:
Section 1:
That the Planning Commission hereby adopts by reference the
provisions of Ordinance No. 90-02, Section 20.04.070 Presidina
Officer subsections (b and c), amending them to read:
The Chairperson, and the Vice Chairperson, shall serve a
term of one year, or until a successor for each position is
chosen. Three affirmative votes shall be required to
choose or change the Chairperson or Vice Chairperson.
(C)
In addition to the powers and duties of a Planning
Commissioner, the Chairperson, or in his/her absence, the
Vice Chairperson, shall be the presiding officer of the
Planning Commission. (Govt. Code Section 36802.)
Section 2:
The Planning Director shall certify the adoption of this resolution.
APPROVED AND ADOFrED this 4th day of June, 1990.
ATTEST:
Chairperson
Ross Geller, Acting Planning Director
[SEAL]
2/ReSOS/PCO] 05/31/90 5:12pm
RESOLUTION NO. PC 90-
A RESOLUTION OF THE PLANNING COMMISSION OF THE
CITY OF TEMECULA DESIGNATING LOCATIONS FOR
POSTING OF ORDINANCES AND/OR RESOLUTIONS
REQUIRED BY LAW TO BE PUBLISHED OR POSTED.
The Planning Commission of the City of Temecula does resolve, determine and
order as follows:
Section 1:
Section 2:
All ordinances and all resolutions required by law to be published
or posed shall be posted in at least three (3) public places within
the City of Temecula in accordance with the provisions of Section
36933, Government Code.
All ordinances and resolutions shall be posed for public inspection
at:
County Library, Rancho California Branch, 27533A Ynez Road;
U. S. Post Office, 28360 Front Street;
Temecula Valley Chamber of Commerce, 40945 County Center
Drive;
Temecula City Hall, 43172 Business Park Drive.
Section 3: During the City's first year of operation, ordinances may be posted
as set out herein, rather than published.
PASSED, APPROVED AND ADOPTED this 4th day of June, 1990.
ATI'EST:
Chairperson
Ross Geller, Acting Planning Director
[SEAL]
2IResos/PC02 05/31/90 4:56pm
CITY OF '-'~MECULA
PLANNING DEPARTMENT
POLICY ~ORANDUM
Date:
June 4, 1990
To:
From:
Subject:
City of Temecula lanning Commission
Ross Gelle~ing Director
Policy Clarification and Alternatives
Substantial Conformance and Revised Permit
Applications.
Backqround
As discussed in earlier Planning Commission Training Sessions, the
County of Riverside Planning Staff exercised wide latitude in
the review and approval of substantial conformance and revised
permit applications. The City of Temecula Planning Department has
reviewed the provisions of Ordinance No. 348 in regard to permit
modifications.
The City Planning Staff interprets the provisions of this ordinance
to be somewhat narrower than used previously under County
jurisdiction. Section 18.43 of the ordinance reads as follows:
Ordinance No. 348
SECTION 18.43. APPLICATIONS FOR MODIFICATIONS TO APPROVED PERMITS.
A request for approval of a modification to an approved plot plan,
conditional use permit, public use permit, mobilehome permit under
Article XIXb, or variance, shall be made in accordance with the
provisions of this section. A modification under this section
means a request for a revised permit or a determination of
Substantial Conformance as further defined herein. These
provisions shall not be applicable to Wind Energy Conversion System
Permits.
APPLICATIONS. Applications for Substantial Conformance
or Revised Permit shall be filed in writing with the
Planning Director, accompanied by the fees as set forth
in Ordinance No. 671, and shall include the following:
All information required under this ordinance
for the filing of a new application for the permit
sought to be modified, unless the requirement is
waived by the Planning Director.
A statement explaining the proposed modification
and the reason the modification has been requested.
If the application requires a public hearing, a
list of names and addressed of all owners of real
property located within 300 feet of the exterior
boundaries of the property to be considered and
such additional names and addressed required in
order to conform with the notification
requirements for processing a new permit, as shown
on the last equalized assessment roll and any
update issued by the County Assessor.
Such additional information as shall be required
by the Planning Director.
REQUESTS FOR SUBSTANTIAL CONFORMANCE. Substantial
Conformance means a request for a non-substantial
modification of an approved permit which does not
change the original approval or the effect of the
approval on surrounding property. Substantial
Conformance may include, but is not limited to,
modifications necessary to comply with the final
conditions of approval or modifications to lighting,
parking, fencing or landscaping requirements.
REVISED PERMITS. Revised permit means a modification of
a permit which does not change the basic concept or use
allowed by the original approval. A Revised Permit may
include, but is not limited to, on-site reorientation of
structures, structural alterations, movement of or
alterations to signs, changes to the original conditions
of approval including extensions to the overall life of
the permitted use. Applications for extensions of time
shall be subject to any restrictions set forth in this
ordinance as to the maximum overall life of the original
permit.
PROCEDURE.
1. Substantial Conformance. The Planning Director shall
approve,conditionally approve or disapprove an
application for Substantial Conformance within 30 days
after accepting a completed application and give notice
by mail of the decision, including any additional
conditions of approval, to the applicant and any other
person who has filed a written request for notice. The
Planning Director's determination shall be based upon the
standards of this section and those standards of this
- 3 -
section and those standards set forth in this ordinance
for the approval of an original application. An
application for Substantial Conformance shall not
require a public hearing.
2. REVISED PERMIT. An application for a Revised Permit
shall be approved, conditionally approved or disapproved
in accordance with the procedures for processing an
original permit, including any requirements for public
hearing, notice of hearing, and all rights of appeal. A
Revised Permit shall be subject to the development
standards applicable to approval of a new permit.
APPROVAL PERIOD. The approval of an application for
Substantial Conformance or Revised Permit shall be valid
until the expiration of the original permit, unless an
extension of time has been granted by an approved Revised
Permit.
Notwithstanding any provisions herein to the contrary, an
application for Substantial Conformance may be approved
only if the proposed modification is exempt from the
provisions of the California Environmental Quality Act.
ANALYSIS
LIMITATIONS
Staff understands the provision to apply only to plot plans,
conditional use permits, public use permits, second unit permits,
mobilehome permits, and variances. All other application types are
excluded. Changes to subdivisions are provided in Ordinance No.
460, Sections 8.1 and 8.2.
Substantial Conformance Permits
The provisions of this section limit the scope of proposed changes
to modifications required byconditions of approval, and changes to
lighting, parking, and landscaping. Changes to building
footprints, elevations, intensity of use, building configurations
and similar changes could not be considered under this application
category.
Unless a specific permit category or other code provision invokes
the use of the substantial conformance permit application for
proposed changes, it is the staff's understanding that changes
would be limited to the parameters described above. No alteration
to previous environmental action can be taken.
- 4 -
Revised Permits
This application category is more comprehensive than the
substantial conformance application. Greater latitude for
accommodating changes is provided. Specifically, changes to
building footprints and elevations can be proposed, and possibly
changes in structure size could be realized. Extensive site design
changes and modifications to conditions of approval could be
proposed. Presumably, environmental analysis may be required if
proposed changes are significant. The basic concept of the project
must remain unchanged, however.
APPROVAL PROCEDURES
Substantial Conformance
Ordinance No. 348 currently allows the Planning Director to take
action on Substantial Conformance applications. Staff believes
that strict adherence to the code parameters for substantial
conformance applications will allow the Planning Director to fairly
and objectively execute decisions on applications.
Revised Permits
Revised permits require the same level of review and action as
required for the original permit. Staff suggests that any project
which requires an environmental determination be placed on the
Planning Commission agenda for action. Rather than change Section
18.43 of Ordinance No. 348, however, staff would recommend changes
to hearing procedures for specific applications.
Recommendation
Staff recommends:
That the Planning Commission REVIEW and CONSIDER staff's analysis
and recommendations and PROVIDE DIRECTION for any policies or
ordinance changes determined to be appropriate.
BUi~KE, ~rlLLIAHS ~ SOI~]~NSEN
May 24, 1990
Mr. F. D. Aleshire
City Manager
City of Temecula
43172 Business Park Dr.
Temecula, CA 92390
Re: DeveloDment Aqreement No. 4 - Vail Meadows
Dear Frank:
I have been asked by Dennis O'Neil, attorney for
Bedford Properties, to approve as to form an agreement
permitting sale of all or part of the property subject to
Development Agreement No. 4, which was executed between
Bedford and the County on November 7, 1988. Pursuant to the
Development Agreement, no property may be conveyed unless
the purchaser agrees to assume all obligations of the
Agreement.
To date, the City Council has not had the
opportunity to review any of the development agreements the
County executed prior to incorporation. These agreements
present a number of advantages and disadvantages to the
City. For example, they permit the City to impose new
impact fees, even as to properties with vested maps. On the
other hand, they also exempt the property from any future
growth control measures.
Regardless of its advantages and disadvantages, it
is doubtful the City could repudiate any Agreement if it
desired, although it may modify or suspend it on the basis
that the failure to do so would endanger the public health
or safety (Gov. C. §65865.3(b)). And, importantly, if the
City wishes to challenge the Agreement in court, it must do
so promptly. At this time, the statute of limitation period
for challenging development agreement is ambiguous.
Mr. Frank Aleshire
May 24, 1990
Page 2
However, if either AB391 or AB3674 is enacted, the
limitation period would either be 120 days or 1 year,
respectively. (See, enclosed legislative updates.)
In the meanwhile, I have approved as to form the
enclosed Assignment Form, subject to the caveat that neither
the City Council or Planning Commission have taken any
formal action to validate or repudiate the Agreement. In
this way, development may continue without impairing the
City from later reviewing the Agreement.
Please notify me if this approach is acceptable.
Sincerely,
Scott F. Field
City Attorney
CITY OF TEMECULA
sff/LTR12004:bjj
cc: Ross Geller
DRAFT
May , 1990
TO:
FROM:
RE:
Development Agreement
Representatives
Scott F. Field
City Attorney
City of Temecula
Assignment of Interest
Attached are new forms for assignments of
development agreements. Please use these
future assignments.
interest under
forms for all
Please note that at this time, neither the Temecula City
Council or Planning Commission has reviewed any Agreements,
nor taken action to approve them. Consequently, approval of
these forms may not be construed as City ratification of any
development agreement.
attachment
SFF/bjj
sff/LTR12004
DRAFT
City Clerk
City of Temecula
43172 Business Park Drive
Temecula, CA 92390
Re: Development Agreement No.
Assignment of Interest
Gentlement:
Pursuant to Section 2.4.1(b) of Development Agreement
No. , enclosed is a copy of the assignment and
acceptance of interest in Development Agreement No.
Very truly yours,
cc:
City Manager, City of Temecula
Director, Planning Department, City of Temecula
City Attorney, City of Temecula
sff/LTR12004
DRAFT
Recording requested by and
when recorded return to:
ASSIGNMENT AND ASSUMPTION
AGREEMENT FOR DEVELOPMENT AGREEMENT NO.
WHEREAS, the City of Temecula incorporated on
December 1, 1989, and its jurisdiction includes, in whole, the
property that is the subject of Development Agreement No. 4;
WHEREAS, pursuant to Government Code Section 65865.3,
the City is the successor-in-interest to the County of Riverside
and assumes all rights and obligations of the County pursuant to
Development Agreement No. ;
WHEREAS, this Assignment is not a Release, as described
at Section 2.4.2 of said Agreement;
NOW, THEREFORE, pursuant to Development Agreement
No. __, recorded , 1988, as Instrument
No. , which is hereby incorporated herein by this
reference, and for good and valuable consideration, receipt of
which is hereby acknowledged, the undersigned agree as follows:
1. The assignment and assumption provided for under
this agreement is made together with the sale, transfer or
assignment of all or a part of the Property subject to
Development Agreement No. The property sold, transferred or
assigned together with this assignment and assumption agreement
is described in Exhibit "A", attached hereto and incorporated
herein by this reference.
2. Assignor hereby grants, sells, transfers, conveys,
assigns and delegates to Assignee all of its rights, title,
interest, benefits, privileges, duties and obligations arising
under or from Development Agreement No. __ as Owner of the
property described in Exhibit "A" hereto.
sff/LTR12004
D AFT
3. Assignee hereby accepts the foregoing assignment
and unconditionally assumes and agrees to perform all of the
duties and obligations of Assignor arising under or from
Development Agreement No. __ as Owner of the property described
on Exhibit "A" hereto.
4. The sale, transfer or assignment of the property
described in Exhibit #A" hereto, and the assignment and
assumption provided for under this agreement are the subject of
additional agreements between Assignor and Assignee.
Notwithstanding any term, condition or provision of such
additional agreements, the rights of the City of Temecula arising
under or from Development Agreement No. __ and this assignment
and assumption agreement shall not be affected, diminished or
defeated in any way, except upon the express written agreement of
the City of Temecula.
DATED: ASSIGNOR:
ASSIGNEE
[ALL SIGNATURES SHALL BE NOTARIZED. EXECUTION ON BEHALF OF ANY
CORPORATION SHALL BE BY TWO CORPORATE OFFICERS.]
Approved as to Form
Scott F. Field
City Attorney
City of Temecula
sff/LTR12004
DRAFT
DRAFT
04/27/90
CA AB 391
Page i
AUTHORi
TITLE=
XNTRODUCEDm
LAST AHEND=
LOCATIONI
Brown D
Development agreements
01/30/89
04/24/89
Senate Judiciary Committee
cODE SECTIONS:
An act to amend Section 65009 of the Governmen~ Code,
relating to development agreements.
SUMMARY
Prohibits, with certain exceptions, any action or proceeding
challenging the decision of the legislative body to adop~ an
ordinance approving a development agreement, 120 days after the
decision, except that for development agreements recorded prior
to January 1, 1990, actions or proceedings would be required to
be commenced and service made on the legislative body within
120 days after January 1, 1990.
AB 391, as amended, D. Brown. Development agreements.
Existing law permits cities and counties to enter ln~o
development agreements with any person having an interest in
real property for =he developmen~ of ~he property after a
public hearing.
This bill would prohibit, with certain exceptions, any action
or proceeding challenging the decision of the legislative b~dy
to adopt an ordinance approving a development agreement, 120
days after the decision, except that for development agreementel
recorded prior to January 1, 1990, actions or proceedings would
be required to be commenced and service made on the legislative
body within 120 days after january 1, 1990.
Vote: majority. Appropriation: no. Fiscal committee:
State-mandated local programz no.
STATUSx
08/22/89 From SENATE Committee on JUDICXARY= Failed
passage.
VOTISs
o4/12/89 Assembly Local Government Committee P 9-
05/01/89 Assembly Floor P
05/31/89 Senate Local Government Committee P 8-
08/22/89 Senate Judiciary Committee F 5-
DRA ,
CA AB 3674
o4/27/9o
AUTHOR:
TITLE:
INTRODUCED:
COMMITTEE:
HEARING:
Cottess
Land use: development agreements
03/01/90
Assembly Local Government Committee
05/09/90 2:00 p~
CODE SECTIONS:
An act to amend Section 65009 of the Government Code,
relating to land use.
SUMMARY:
Page 2
Requires any action or proceeding to attack, review, set asidef
void, or annul the decision of a legislative body to adopt an
ordinance approving Or amending a development agreement and the
development agreement or amendment which is being adopted by
the ordinance, for development agreements or amendments adopted
On January 1, 1991, Or later, be commenced and service made on
the legislative body within one year Of the adoption or
amendments.
AB 3674, as introduced, Cortese. Land use: development
agreements.
Existing law permits cities and counties to enter into a
development agreement with any person having an interest in
real property for the development of the property, after a
public hearing, as specified.
This bill would require any action or proceeding to attack,
review, set aside, void, or annul the decision of a legislative
body to adopt an ordinance approving or amending a development
agreement and the development agreement or amendment which is
being adopted by the ordinance, for development agreements or
amendments adopted on January 1, 1991, or later, be commenced
and service made on the legislative body within one year of the
adoption or amendments.
vote: majority. Appropriation: no. Fiscal committee: no.
State-mandated local program: no.
STATUSz
03/Z2/90
To ASSEMBLY Committee on LOCAL GOVEPa4MENT.
END OF REPORT
Recorded at request of
Clerk. Board of Supervisors
County of Riverside
When recorded return to
Riverside County Planning Director
4080 Lemon Street, 9th Floor
Riverside, CA 92501
DEVELOPMENT AGREEMENT NO. 4
A development agreement between
COUNTY OF RIVERSIDE
and
KAISER DEVELOPMENT COMPANY
Specific Plan No. 219 - Vail Meadows
1988
SECTION
1.1
1.1.1
1.1.2
1.1.3
1.1.4
1.1.5
1.1.6
1.1.7
1.1.8
1.1.9
1.1.10
1.1.11
1.1.12
1.1.13
1.1.14
1.1.15
1.1.16
1.1.17
1.2
2.1
2.2
2.3
2.4
2.4.1
2.4.2
2.4.3
2.4.4
2.4.5
2.5
2.6
2.7
Development Agreement No. 4
TABLE OF CONTENTS
HEADING
PAGE
RECITALS
DEFINITIONS AND EXHIBITS
Definitions
Agreement
COUNTY .
Development
Development Approvals
Development Exaction .
Development Plan .
Effective Date .
Existing Development Approvals
Existing Land Use Regulations
Land Use Regulations .......
3
3
3
3
3
3
4
4
4
4
4
OWNER
Mortgagee
Project
Property .....
Reservations of Authority
Subsequent Development Approvals
Subsequent Land Use Regulations
Exhibits
............ 4
5
5
5
5
5
5
5
GENERAL PROVISIONS
5
Binding Effect of Agreement
Ownership of Property
Term . . .
Assignment ....
Right to Assign
Release of Transferring Owner
Subsequent Assignment
Partial Release of Purchaser,
Transferee, or Assignee of
Industrial or Commercial Lot . 7
Termination of Agreement With
Respect to Individual Lots Upon
Bale to Public and Completion
of Construction .... 7
Amendment or Cancellation of Agreement 8
Termination ......... 8
Notices 8
5
5
6
6
6
6
7
SECTION HEADING PAGE
3.1
3.2
3.3
3.4
3.5
3.6.1
3.6.2
3.6.3
3.6.4
3.7
3.8
3.9
3.10
3.11
4.1
4.2
4.2.1
4.2.2
4.2.3
4.2.4
4.2.5
4.3
e
6.1
6.2
6.3
6.4
6.5
6.6
7.1
7.2
7.3
DEVELOPMENT OF THE PROPERTY
10
Rights to Develop 10
Effect of Agreement on Land Use
Regulations 10
Timing of Development 10
Phasing Plan ...... 11
Changes and Amendments ........ 11
Reservations of Authority 11
Limitations, Reservations and
Exceptions . 11
Subsequent Development Approvals . 13
Modification or Suspension by
State or Federal Law 13
Intent 13
Public Works 13
Provision of Real Property
Interests by COUNTY ...... 13
Regulation by Other P~biic Agencies 14
Tentative Tract Map Extension 14
Vesting Tentative Maps ........ 14
PUBLIC BENEFITS
Intent .......... 14
Public Facilities and Services
Mitigation Fee ......... 15
Amount and Components of Fee 15
Time of Payment 15
Reduction for Low-Occupancy .... 15
Annual Fee Adjustment ....... 16
Credits ....... 16
Continuation of Fees . 16
FINANCING OF PUBLIC IMPROVEMENTS
17
REVIEW FOR COMPLIANCE
17
Periodic Review 17
Special Review . 17
Procedure 17
Proceedings Upon Modification
or Termination . 18
Mearing on Modification or Termination 18
Certificate of Agreement Compliance 18
INCORPORATION AND ANNEXATION .
19
Intent ....
Incorporation
Annexation
....... 19
19
....... 19
ii
SECTION
8.1
8.2
8.3
8.4
8.5
9.1
9.2
9.3
9.4
9.5
9.6
10.
11.
11.1
11.2
11.3
11.4
11.5
11.6
11,7
11.8
11.9
11.10
11.11
11.12
11.13
11.14
11.15
11.16
11.17
11.18
11.19
11.20
HEADING PAGE
DEFAULT AND REMEDIES
19
Remedies in General ........ 19
Specific Performance ......... 20
Release .......... 20
Termination or Modification of
Agreement for Default of OWNER 20
Termination of Agreement for
Default of COUNTY 21
THIRD PARTY LITIGATION
21
General Plan Litigation
Third Party Ligitation Concerning
Agreement
Indemnity .
Environment Assurances
Reservation of Rights
Survival
21
22
21
22
22
23
MORTGAGEE PROTECTION ,
23
MISCELLANEOUS PROVISIONS
24
Recordation of Agreement .
Entire Agreement ......
Severability .
Interpretation and Governing Law
Section Headings
Singular and Plural .....
Joint and Several Obligations
Time of Essence
Waiver ....
No Third Party Beneficiaries
Force Ma]eure
Mutual Covenants
Successors in Interest
Counterparts
Jurisdiction and Venue .
Pro]ect as a Private Undertaking
Further Actions and Instruments
Eminent Domain . .
Agent for Service of Process
Authority to Execute .
Signatures
24
24
24
24
25
25
.... 25
25
25
25
25
25
26
26
26
26
26
26
27
27
27
iii
DEVELOPMENT AGREEMENT NO. 4
This Development Agreement (hereinafter "Agreement,') is
entered into effective on the date it is recorded with the
Riverside County Recorder (hereinafter the "Effective Date") by
and among the COUNTY OF RIVERSIDE (hereinafter "COUNTY"), and the
persons and entities listed below (hereinafter ',OWNER"):
KAISER DEVELOPMENT COMPANY, a California corporation.
RECITALS
WHEREAS, COUNTY is authorized to enter into binding
development agreements with persons having legal or equitable
interests in real property for the development of such property,
pursuant to Section 65864, et seq. of the Government Code: and,
WHEREAS. COUNTY has adopted rules and regulations for
consideration of development agreements, pursuant to Section
65865 of the Government Code: and,
WHEREAS. OWNER has requested COUNTY to enter into
development agreement and proceedings have been taken in
accordance with the rules and regulations of COUNTY: and,
WHEREAS. by electing to enter into this Agreement. COUNTY
shall bind future Boards Of Supervisors Of COUNTY by the
obligations specified herein and limit the future exercise of
certain governmental and proprietary powers of COUNTY: and,
WHEREAS, the terms and conditions of this Agreement have
undergone extensive review by COUNTY and the Board of Supervisors
and have been found to be fair, just and reasonable: and,
WHEREAS, the best interests of the citizens of Riverside
County and the public health, safety and welfare will be served
by entering into this Agreement: and,
WHEREAS, all of the procedures of the California
Environmental Quality Act have been met with respect to the
Project and the Agreement: and,
WHEREAS, this Agreement and the Project are consistent
with the Riverside County Comprehensive General Plan and any
Specific Plan applicable thereto: and,
-1-
WHEREAS, all actions taken and approvals given by COUNTY
have been duly taken or approved in accordance with all
applicable legal requirements for notice, public hearings,
findings, votes, and other procedural matters; and,
WHEREAS. development of the Property in accordance with
this Agreement will provide substantial benefits to COUNTY and
will further important policies and goals of COUNTY: and,
WHEREAS. this Agreement will eliminate uncertainty in
planning and provide for the orderly development of the Property,
ensure progressive installation of necessary improvements,
provide for public services appropriate to the development of the
Project, and generally serve the purposes for which development
agreements under Sections 65864, et seq. of the Government Code
are intended: and,
WHEREAS, on June 28, 1988, Special Assessment District
No. 159 was formed by County Resolution No. 88-192 pursuant to a
petition, executed by OWNER, requesting the District to be formed
and consenting to said District being formed to provide a
financing mechanism to pay for the construction of certain public
facilities that would benefit the Property and OWNER advanced
those monies needed to pay all costs associated with forming said
District and retained and paid civil engineers to design and
engineer the public facilities to be constructed. and said public
facilities were designed to benefit the Property and certain of
the facilities may have been oversized to benefit adjacent
properties and the public at large: and,
WHEREAS, OWNER has incurred and will in
substantial cost in order to assure development
in accordance with this Agreement: and,
the future incur
of the Property
WHEREAS. OWNER has incurred and will in the future incur
substantial costs in excess of the generally applicable
requirements in order to assure vesting of legal rights to
develop the Property in accordance with this Agreement.
III
III
III
III
III
III
III
III
COVENANTS
NOW, THEREFORE, in consideration of the above recitals
and of the mutual covenants hereinafter contained and for other
good and valuable consideration. the receipt and sufficiency of
which is hereby acknowledged, the parties agree as follows:
1. DEFINITIONS AND EXHIBITS.
1.1 Definitions. The following terms when used in this
Agreement shall be defined as follows:
1.1.1
Agreement.
"Agreement" means this Development
1.1.2 "COUNTY" means the County Of Riverside, a
political subdivision of the State of California.
1.1.3 "Development" means the improvement of
the Property for the purposes of completing the
structures, improvements and facilities comprising the
Project including, but not limited to: grading; the
construction of infrastructure and public facilities
related to the Project whether located within or outside
the Property: the construction of buildings and
structures: and the installation of landscaping.
"Development" does not include the maintenance, repair,
reconstruction or redevelopment of any building,
structure, improvement or facility after the construction
and completion thereof.
1.1.4 "Development Approvals" means all permits
and other entitlements for use subject to approval or
issuance by COUNTY in connection with development of the
Property including, but not limited to:
(a) Specific plans and specific plan
amendments:
(b) Tentative and final subdivision and
parcel maps;
(c) Conditional use permits, public use
permits and plot plans;
(d) Zoning;
(e) Grading and building permits.
1.1.5 "Development Exaction" means any
requirement of COUNTY in connection with or pursuant to
any Land Use Regulation or Development Approval for the
dedication of land, the construction of improvements or
public facilities, or the payment of fees in order
-3-
to lessen, offset, mitigate or compensate for the
of development on the environment or other public
interests.
impacts
1.1.6 "Development Plan" means the Existing
Development Approvals and the Existing Land Use
Regulations applicable to development of the Property.
1.1.7 "Effective Date" means the date this
Agreement is recorded with the County Recorder.
1.1.8 "Existing Development Approvals" means
all Development Approvals approved or issued prior to the
Effective Date. Existing Development Approvals includes
the Approvals incorporated herein as Exhibit "C" and all
other Approvals which are a matter of public record on
the Effective Date.
1.1.9 "Existing Land Use Regulations" means all
Land Use Regulations in effect on the Effective Date.
Existing Land Use Regulations includes the Regulations
incorporated herein as Exhibit "D" and all other
Regulations which are a matter of public record on the
Effective Date.
1.1.10 "Land Use Regulations" means all
ordinances, resolutions, codes, rules, regulations and
official policies of COUNTY governing the development and
use of land, including, without limitation, the permitted
use of land, the density or intensity of use, subdivision
requirements, the maximum height and size of proposed
buildings, the provisions for reservation or dedication
of land for public purposes, and the design, improvement
and construction standards and specifications applicable
to the development of the property. "Land Use
Regulations" does not include any COUNTY ordinance,
resolution, code, rule, regulation or official policy,
governing:
(a) The conduct of businesses, professions,
and occupations;
(b) Taxes and assessments;
(c) The control and abatement of nuisances:
(d) The granting of encroachment permits and
the conveyance of rights and interests which
provide for the use of or the entry upon public
property;
(e) The exercise of the power of eminent
domain.
1.1.11 "OWNER" means the persons and entities
listed as OWNER on page 1 of this Agreement and their
successors in interest to all or any part of the Property.
-4-
and by
1.1.12 "Mortgagee" means a mortgagee of a
mortgage, a beneficiary under a deed of trust or any
other security-device lender, and their successors and
assigns.
1.1.13 "Project" means the development of the
Property contemplated by the Development Plan as such
Plan may be further deiined, enhanced or modified
pursuant to the provisions of this Agreement.
1.1.14 "Property" mean~ the real property
described on Exhibit "A" and shown on Exhibit "B" to this
Agreement.
1.1.15 "Reservations of Authority" means the
rights and authority excepted from the assurances and
rights provided to OWNER under this Agreement and
reserved to COUNTY under Section 3.6 of this Agreement.
1.1.16 "Subsequent Development Approvals" means
all Development Approvals required subsequent to the
Effective Date in connection with development of the
Property.
1.1.17 "Subsequent Land Use Regulations" means
any Land Use Regulations adopted and effective after the
Effective Date of this Agreement.
1.2 Exhibits. The following documents are attached to,
this reference made a part of, this Agreement:
Exhibit "A" -- Legal Description of the Property.
Exhibit "B" -- Map showing Property and its
location.
Exhibit "C" -- Existing Development Approvals.
Exhibit "D" -- Existing Land Use Regulations.
Exhibit "E" -- Fee Credits.
2. GENERAL PROVISIONS.
2.1 Binding Effect of Aqreement. The Property is
hereby made subject to this Agreement. Development of the
Property is hereby authorized and shall be carried out only
accordance with the terms of this Agreement.
in
2.2 Ownership of Property. OWNER represents and
covenants that it is the owner of the fee simple title to the
Property or a portion thereof.
-5-
2.3 Term. The term of this Agreement shall commence on
the Effective Date and shall continue for a period of ten (10)
years thereafter unless this term is modified or extended
pursuant to the provisions of this Agreement.
2.4 Assignment.
2.4.1 Right to Assign. OWNER shall have the
right to sell. transfer or assign the Property in whole
or in part (provided that no such partial transfer shall
violate the Subdivision Map Act, Government Code Section
66410, e_it seq., or Riverside County Ordinance No. 460) to
any person, partnership, joint venture, firm or
corporation at any time during the term of this
Agreement: provided, however, that any such sale,
transfer or assignment shall include the assignment and
assumption of the rights, duties and obligations arising
under or from this Agreement and be made in strict
compliance with the following conditions precedent:
(a) No sale, transfer or assignment of any
right or interest under this Agreement shall be
made unless made together with the sale, transfer
or assignment of all or a part of the Property.
(b) Concurrent with any such sale, transfer
or assignment, or within fifteen (15) business days
thereafter, OWNER shall notify COUNTY, in writing,
of such sale, transfer or assignment and shall
provide COUNTY with an executed agreement. in a
form reasonably acceptable to COUNTY, by the
purchaser. transferee or assignee and providing
therein that the purchaser, transferee or assignee
expressly and unconditionally assumes all the
duties and obligations of OWNER under this
Agreement.
Any sale, transfer or assignment not made in strict
compliance with the foregoing conditions shall constitute
a default by Owner under this Agreement. Notwithstanding
the failure of any purchaser, transferee or assignee to
execute the agreement required by Paragraph (b) of this
Subsection 2.4.1, the burdens of this Agreement shall be
binding upon such purchaser, transferee or assignee, but
the benefits of this Agreement shall not inure to such
purchaser, transferee or assignee until and unless such
agreement is executed.
2.4.2 Release of Transferring Owner.
Notwithstanding any sale, transfer or assignment, a
transferring OWNER shall continue to be obligated under
this Agreement unless such transferring OWNER is given a
release in Writing by COUNTY, which release shall be
provided by COUNTY upon the full satisfaction by such
transferring OWNER of the following conditions:
-6-
(a) OWNER no longer has a legal or equitable
interest in all or any part of the Property.
(b) OWNER is not then in default under this
Agreement.
(c) OWNER has provided COUNTY with the notice
and executed agreement required under Paragraph (b)
of Subsection 2.4.1 above.
(d) The purchaser, transferee or assignee
provides COUNTY with security equivalent to any
security previously provided by OWNER to secure
performance of its obligations hereunder.
2.4.3 Subsequent Assiqnment. Any subsequent
sale, transfer or assignment after an initial sale,
transfer Or assignment shall be made only in accordance
with and subject to the terms and conditions of this
Section.
2.4.4 Partial Release of Purchaser, Transferee
or Assignee of Industrial or Commercial Lot. A
purchaser. transferee or assignee of a lot. which has
been finally subdivided as provided for in the
Development Plan and for which a commercial or industrial
plot plan for development of the lot has been finally
approved pursuant to the Development Plan, may submit a
request, in writing, to COUNTY to release said lot from
the obligations under this Agreement relating to all
other portions Of the property. Within thirty (30) days
of such request, COUNTY shall review, and if the above
conditions are satisfied shall approve the request for
release and notify the purchaser, transferee or assignee
in writing thereof. No such release approved pursuant to
this Subsection 2.4.4 shall cause, or otherwise affect, a
release of OWNER from its duties and obligations under
this Agreement.
2.4.5 Termination of Agreement With Respect to
Individual Lots Upon Sale to Public and Completion of
Construction. The provisions of Subsection 2.4.1 shall
not apply to the sale or lease (for a period longer than
one year) of any lot which has been finally subdivided
and is individually (and not in "bulk") sold or leased to
a member of the public or other ultimate user.
Notwithstanding any other provisions of this Agreement,
this Agreement shall terminate With respect to any lot
and such lot shall be released and no longer be subject
to this Agreement without the execution or recordation of
any further document upon satisfaction of both of the
following conditions:
(a) The lot has been finally subdivided and
individually (and not in "bulk") sold or leased
-7-
(for a period longer than one year) to a member of
the public or other ultimate user: and,
(b) A Certificate of Occupancy has been
issued for a building on the lot, and the fees set
forth under Section 4 of this Agreement have been
paid.
2.5 Amendment or Cancellation of Agreement. This
Agreement may be amended or cancelled in whole or in part only by
written consent of all parties in the manner provided for in
Government Code Section 65868. This provision shall not limit
any remedy of COUNTY or OWNER as provided by this Agreement,
2.6 Termination. This Agreement shall be deemed
terminated and of no further effect upon the occurrence of any of
the following events:
(a) Expiration of the stated term of this
Agreement as set forth in Section 2.3.
(b) Entry of a final judgment setting aside,
voiding or annulling the adoption of the ordinance
approving this Agreement.
(c) The adoption of a referendum measure
Overriding or repealing the ordinance approving
Agreement.
this
(d) Completion of the Project in accordance with
the terms of this Agreement including issuance of all
required occupancy permits and acceptance by COUNTY or
applicable public agency of all required dedications.
Termination of this Agreement shall not constitute
termination of any other land use entitlements approved for the
Property. Upon the termination of this Agreement, no party shall
have any further right or obligation hereunder except with
respect to any obligation to have been performed prior to such
termination or with respect to any default in the performance of
the provisions of this Agreement which has occurred prior to such
termination or with respect to any obligations which are
specifically set forth as surviving this Agreement. Upon such
termination, any public facilities and services mitigation fees
paid pursuant to Section 4.2 of this Agreement by OWNER to COUNTY
for residential units on which construction has not yet begun
shall be refunded to OWNER by COUNTY.
2.7 Notices.
(a) As used in this Agreement, "notice" includes.
but is not limited to, the communication of notice,
request, demand, approval, statement, report, acceptance,
consent, waiver, appointment or other communication
required or permitted hereunder.
-8-
time.
(b) All notices shall be in writing and shall be
considered given either: (i) when delivered in person to
the recipient named below; or (ii) on the date Of
delivery shown on the return receipt, after deposit in
the United States mail in a sealed envelope as either
registered or certified mail with return receipt
requested, and postage and postal charges prepaid, and
addressed to the recipient named below; or (iii) on the
date of delivery shown in the records of the telegraph
company after transmission by telegraph to the recipient
named below. All notices shall be addressed as follows:
If to COUNTY:
Clerk of the Board of Supervisors
County of Riverside
4080 Lemon St., 14th Floor
Riverside, CA 92501
with copies to:
County Administrative Officer
County of Riverside
4080 Lemon St., 12th Floor
Riverside, CA 92501
and
Director
Planning Department
County of Riverside
4080 Lemon St.. 9th Floor
Riverside, CA 92501
County Counsel
County of Riverside
3535 Tenth St., Suite
Riverside, CA 92501
300
If to OWNER:
Kaiser Development Company
c/o Rancho California Development Company
28250 Ynez Road
Rancho California, CA. 92390
with a copy to:
Dennis D. O'Neil, Esq.
Pettis, Tester, Kruse & Krinsky
18881 Von Karman, 16th. Floor
Irvine, CA. 92715
(c) Either party may, by notice given at any
require subsequent notices to be given to another person or
-9-
entity, whether a party or an officer or representative of a
party, or to a different address, or both. Notices given before
actual receipt of notice of change shall not be invalidated by
the change.
DEVELOPMENT OF THE PROPERTY.
3.1 Rights to Develop. Subject to the terms of this
Agreement including the Reservations of Authority, OWNER shall
have a vested right to develop the Property in accordance with.
and to the extent of, the Development Plan. The Project shall
remain subject to all Subsequent Development Approvals required
to complete the Project as contemplated by the Development Plan.
Except as otherwise provided in this Agreement, the permitted
uses of the Property, the density and intensity of use, the
maximum height and size of proposed buildings, and provisions for
reservation and dedication of land for public purposes shall be
those set forth in the Development Plan.
3.2 Effect of Agreement on Land Use Regulations.
Except as otherwise provided under the terms of this Agreement
including the Reservations of Authority, the rules. regulations
and official policies governing permitted uses of the Property,
the density and intensity of use of the Property, the maximum
height and size of proposed buildings, and the design,
improvement and construction standards and specifications
applicable to development of the Property shall be the Existing
Land Use Regulations. In connection with any Subsequent
Development Approval, COUNTY shall exercise its discretion in
accordance with the Development Plan, and as provided by this
Agreement including. but not limited to, the Reservations of
Authority. COUNTY shall accept for processing. review and action
all applications for Subsequent Development Approvals. and such
applications shall be processed in the normal manner for
processing such matters.
3.3 Timing of Development. The parties acknowledge
that OWNER cannot at this time predict when or the rate at which
phases of the Property will be developed. Such decisions depend
upon numerous factors which are not within the control of OWNER.
such as market orientation and demand, interest rates,
absorption. completion and other similar factors. Since the
California Supreme Court held in Pardee Construction Co. v. City
of Camarillo (1984) 37 Cal.3d 465, that the failure of the
parties therein to provide for the timing of development resulted
in a later adopted initiative restricting the timing of
development to prevail over such parties' agreement, it is the
parties' intent to cure that deficiency by acknowledging and
providing that OWNER shall have the right to develop the Property
in such order and at such rate and at such times as OWNER deems
appropriate Within the exercise of its subjective business
judgment. subject only to any timing or phasing requirements set
forth in the Development Plan or the Phasing Plan set forth in
Section
-10-
3.4 Phasing Plan. Development of the Property shall be
subject to all timing and phasing requirements established by the
Development Plan.
3.5 Changes and Amendments. The parties acknowledge
that refinement and further development of the Project will
require Subsequent Development Approvals and may demonstrate that
changes are appropriate and mutually desirable in the Existing
Development Approvals. In the event OWNER finds that a change in
the Existing Development Approvals is necessary or appropriate,
OWNER shall apply for a Subsequent Development Approval to
effectuate such change and COUNTY shall process and act on such
application in accordance with the Existing Land Use Regulations,
except as otherwise provided by this Agreement including the
Reservations of Authority. If approved, any such change in the
Existing Development Approvals shall be incorporated herein as an
addendum to Exhibit "C", and may be further changed from time to
time as provided in this Section. Unless otherwise required by
law, as determined in COUNTY's reasonable discretion, a change to
the Existing Development Approvals shall be deemed "minor" and
not require an amendment to this Agreement provided such change
does not:
(a) Alter the permitted uses of the Property as a
whole; or,
(b) Increase the density or intensity of use of
the Property as a whole; or,
(c) Increase the maximum height and size of
permitted buildings; or,
(d) Delete a requirement for the reservation or
dedication of land for public purposes within the
Property as a whole; or,
(e) Constitute a project requiring a subsequent or
supplemental environmental impact report pursuant to
Section 21166 of the Public Resources Code.
3.6 Reservations of Authority.
3.6.1 Limitations, Reservations and
Exceptions. Notwithstanding any other provision of this
Agreement, the following Subsequent Land Use Regulations
shall apply to the development of the Property.
(a) Processing fees and charges of every kind
and nature imposed by COUNTY to cover the estimated
actual costs to COUNTY of processing applications
for Development Approvals or for monitoring
compliance with any Development Approvals granted
or issued.
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(b) Procedural regulations relating to
hearing bodies. petitions. applications, notices,
findings, records, hearings. reports.
recommendations, appeals and any other matter of
procedure.
(c) Regulations governing construction
standards and specifications including, without
limitation, the County's Building Code, Plumbing
Code. Mechanical Code, Electrical Code. Fire Code
and Grading Code.
(d) Regulations imposing Development
Exactions: provided, however, that no such
subsequently adopted Development Exaction shall be
applicable to development of the Property unless
such Development Exaction is applied uniformly to
development. either throughout the COUNTY or within
a defined area of benefit which includes the
Property. No such subsequently adopted Development
Exaction shall apply if its application to the
Property would physically prevent development of
the Property for the uses and to the density or
intensity of development set forth in the
Development Plan. In the event any such
subsequently adopted Development Exaction fulfills
the same purposes, in whole or in part. as the fees
set forth in Section 4 of this Agreement, COUNTY
shall allow a credit against such subsequently
adopted Development Exaction for the fees paid
under Section 4 of this Agreement to the extent
such fees fulfill the same purposes.
(e) Regulations which may be in conflict with
the Development Plan but which are reasonably
necessary to protect the public health and safety.
To the extent possible, any such regulations shall
be applied and construed so as to provide OWNER
with the rights and assurances provided under this
Agreement.
(f) Regulations which are not in conflict
with the Development Plan. Any regulation, whether
adopted by initiative or otherwise, limiting the
rate or timing of development of the Property shall
be deemed to conflict with the Development Plan and
shall therefore not be applicable to the
development of the Property.
(g) Regulations which are in conflict with
the Development Plan provided OWNER has given
written consent to the application of such
regulations to development of the Property.
3.6.2 Subsequent Development Approvals. This
Agreement shall not prevent COUNTY. in acting on
Subsequent Development Approvals. from applying
Subsequent Land Use Regulations which do not conflict
with the Development Plan. nor shall this Agreement
prevent COUNTY from denying or conditionally approving
any Subsequent Development Approval on the basis of the
Existing Land Use Regulations or any Subsequent Land Use
Regulation not in conflict with the Development Plan.
3.6.3 Modification or Suspension bV State or
Federal Law. In the event that State or Federal laws or
regulations, enacted after the Effective Date of this
Agreement, prevent or preclude compliance with one or
more of the provisions of this Agreement, such provisions
of this Agreement shall be modified or suspended as may
be necessary to comply with such State or Federal laws or
regulations. provided, however, that this Agreement shall
remain in full force and effect to the extent it is not
inconsistent with such laws or regulations and to the
extent such laws or regulations do not render such
remaining provisions impractical to enforce.
3.6.4 Intent. The parties acknowledge and
agree that COUNTY is restricted in its authority to limit
its police power by contract and that the foregoing
limitations. reservations and exceptions are intended to
reserve to COUNTY all of its police power which cannot be
so limited. This Agreement shall be construed, contrary
to its stated terms if necessary, to reserve to COUNTY
all such power and authority which cannot be restricted
by contract.
3.7 Public Works. If OWNER is required by this
Agreement to construct any public works facilities which will be
dedicated to COUNTY or any other public agency upon completion,
and if required by applicable laws to do so, OWNER shall perform
such work in the same manner and subject to the same requirements
as would be applicable to COUNTY or such other public agency
should it have undertaken such construction.
3.8 Provision of Real Property Interests by COUNTY. In
any instance where OWNER is required to construct any public
improvement on land not owned by OWNER, OWNER shall at its sole
cost and expense provide or cause to be provided, the real
property interests necessary for the construction of such public
improvements. In the event OWNER is unable, after exercising
reasonable efforts, including, but not limited to, the rights
under Sections 1001 and 1002 of the Civil Code, to acquire the
real property interests necessary for the construction of such
public improvements, and if so instructed by OWNER and upon
OWNER'S provision of adequate security for costs COUNTY may
reasonably incur, COUNTY shall negotiate the purchase of the
necessary real property interests to allow OWNER to construct the
public improvements as required by this Agreement and. if
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necessary, in accordance with the procedures established by law,
use its power of eminent domain to acquire such required real
property interests. OWNER shall pay all costs associated with
such acquisition or condemnation proceedings. This section 3.8
is not intended by the parties to impose upon the OWNER an
enforceable duty to acquire land or construct any public
improvements on land not owned by OWNER, except to the extent
that the OWNER elects to proceed with the development of the
Project, and then only in accordance with valid conditions
imposed by the COUNTY upon the development of the Project under
the Subdivision Map Act or other legal authority.
3.9 Requlation by Other Public Aqencies. It is
acknowledged by the parties that other public agencies not within
the control of COUNTY possess authority to regulate aspects of
the development of the Property separately from or jointly with
COUNTY and this Agreement does not limit the authority of such
other public agencies, For example, pursuant to Government Code
Section 66477 and Section 10.35 of Riverside County Ordinance No.
460, another local public agency may provide local park and
recreation services and facilities and in that event, it is
permitted, and therefore shall be permitted by the parties, to
participate jointly with COUNTY to determine the location of land
to be dedicated or in lieu fees to be paid for local park
purposes, provided that COUNTY shall exercise its authority
subject to the terms of this Agreement.
3.10 Tentative Tract MaD Extension. Notwithstanding the
provisions of Section 66452.6 of the Government Code, no
tentative subdivision map or tentative parcel map, heretofore or
hereafter approved in connection with development of the
Property, shall be granted an extension of time except in
accordance with the Existing Land Use Regulations.
3.11 Vesting Tentative Maps. If any tentative or final
subdivision map. or tentative or final parcel map. heretofore or
hereafter approved in connection with development of the
Property, is a vesting map under the Subdivision Map Act
(Government Code Section 66410, et seg.) and Riverside County
Ordinance No. 460 and if this Agreement is determined by a final
judgment to be invalid or unenforceable insolaf as it grants a
vested right to develop to OWNER, then and to that extent the
rights and protections afforded OWNER under the laws and
ordinances applicable to vesting maps shall supersede the
provisions of this Agreement. Except as set forth immediately
above, development of the Property shall occur only as provided
in this Agreement, and the provisions in this Agreement shall be
controlling over any conflicting provision of law or ordinance
concerning vesting maps.
4. PUBLIC BENEFITS.
4.1 Intent. The parties acknowledge and agree that
development of the Property will result in substantial public
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needs which will not be fully met by the Development Plan and
further acknowledge and agree that this Agreement confers
substantial private benefits on OWNER which should be balanced by
commensurate public benefits. Accordingly, the parties intend to
provide consideration to the public to balance the private
benefits conferred on OWNER by providing more fully for the
satisfaction of the public needs resulting from the Project.
4.2 Public Facilities and Services Mitigation Fee.
4.2.1 Amount and Components of Fee. OWNER
shall pay to COUNTY a public facilities and services
mitigation fee in the total amount of $4277.00 for each
residential unit constructed on the Property, which fee
shall be comprised Of the following components:
(a) Public Facilities Fee
$1891 per Residential
Unit
(b) Regional Parkland Fee
$350.00 per
Residential Unit with
$50.00 allocated for
recreational trails
(c)
Habitat Conservation
and Open Space Land
Bank Fee
$260.00 per
Residential Unit
(d)
Public Services
Offset Fee
$1776.00 per
Residential Unit
The amount
mitigation
Subsection
of the public facilities and services
fee shall be adjusted annually as provided
4.2.4.
in
4.2.2 Time of Payment. The fees required
pursuant to Subsection 4.2.1 shall be paid to COUNTY
prior to the issuance of building permits for each
residential unit. No fees shall be payable for building
permits issued prior to the Effective Date of this
Agreement, but the fees required pursuant to Subsection
4.2.1 shall be paid prior to the re-issuanCe or extension
of any building permit for a residential unit for which
such fees have not previously been paid.
4.2.3 Reduction for Low-Occupancy Residential
Units. The fees required pursuant to Subsection 4.2.1
shall be reduced by 33.3 percent for low-occupancy
residential units. For the purposes of this Subsection,
low-occupancy residential units shall be limited to the
following:
(a) One bedroom and studio apartments
rooms, dens, and any similar room shall be
considered to be bedrooms):
(family
(b) Mobilehomes:
(c) Residential units in developments that
are legally restricted to occupancy by senior
citizens pursuant to Riverside County Ordinance No.
348 or state law.
4.2.4 Annual Fee Adjustment. The fees required
pursuant to Subsection 4.2.1 shall be adjusted annually
during the term of this Agreement on the anniversary of
the Effective Date in accordance with the changes in the
Consumer Price Index for All Urban Consumers in the Los
Angeles-Anaheim-Riverside Area (hereinafter CPI)
published monthly by the U.B. Bureau of Labor
Statistics. The annual adjustment shall be calculated in
the following manner:
(a) Divide the CPI for month and year of the
Effective Date into the CPI for the month
immediately preceding the anniversary in which said
fees are to be adjusted.
(b) Multiply the quotient obtained by the
calculation in Paragraph (a) above times said fees.
(c) The result of the multiplication obtained
in Paragraph (b) above shall constitute the fees
payable during the succeeding year.
If the CPI specified herein is discontinued or revised
during the term of this Agreement, such other government
index or computation with which it is replaced shall be
used in order to obtain substantially the same result as
would have been obtained if the CPI had not been
discontinued.
In no event shall the fees be less than the fees set
forth in Subsection 4.2.1.
4.2.5 Credits. OWNER shall be entitled to
credit against the fees required pursuant to Subsection
4.2.1 for the dedication of land, the construction of
improvements or the payment of fees as specifically set
forth in Exhibit "E".
To the extent that Subsection 4.2.4 results in an
increase in the fees payable pursuant to 4.Z.l(a), then
the credit provided in this Subsection for Public
Facilities as specified in Exhibit "E" shall be likewise
increased by the same percentage. No increase in the
credits set forth in Exhibit "E" shall be allowed for any
item which is not specifically identified as a Public
Facility Credit on Exhibit "E".
4.3 Continuation of Fees. Should all or any portion of
Property become part of a city or another county, the fees
payable pursuant to Section 4.2 shall remain and still be payable
to COUNTY on the following basis:
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(a) Fees under 4.2.1(a) shall be payable at the
rate of five and three tenths percent (5.3%) thereof to
COUNTY and the remainder to such city or other county.
(b) Fees payable under Subsections 4.2.1(b) and
(c) shall be fully payable to COUNTY.
(c) Fees under ~ubsection 4.2.1(d) shall be
payable at the rate of one-third (1/3) thereof to such
city or other county and the remainder to COUNTY.
5. FINANCING OF PUBLIC IMPROVEMENTS.
If deemed appropriate, COUNTY and OWNER will cooperate in
the formation of any special assessment district, community
facilities district or alternate financing mechanism to pay for
the construction and/or maintenance and operation of public
infrastructure facilities required as part of the Development
Plan. COUNTY also agrees that, to the extent any such district
or other financing entity is formed and sells bonds in order to
finance such reimbursements, OWNER may be reimbursed to the
extent that OWNER spends funds or dedicates land for the
establishment Of public facilities. Notwithstanding the
foregoing, it is acknowledged and agreed by the parties that
nothing contained in this Agreement shall be construed as
requiring COUNTY or the COUNTY Board of Supervisors to form any
such district or to issue and sell bonds.
6. REVIEW FOR COMPLIANCE.
6.1 Periodic Review. The Planning Director shall
review this Agreement annually, on or before the anniversary of
the Effective Date, in order to ascertain the good faith
compliance by OWNER with the terms of the Agreement. OWNER shall
submit an Annual Monitoring Report, in a form acceptable to the
Planning Director, within 30 days after written notice from the
Planning Director. The Annual Monitoring Report shall be
accompanied by an annual review and administration fee sufficient
to defray the estimated costs of review and administration of the
Agreement during the succeeding year. The amount of the annual
review and administration fee shall be set annually by resolution
of the Board of Supervisors.
6.2 Special Review. The Board of Supervisors may order
a special review of compliance with this Agreement at any time.
The Planning Director shall conduct such special reviews.
6.3 Procedure.
(a) During either a periodic review or a special
review, OWNER shall be required to demonstrate good faith
compliance with the terms of the Agreement. The burden
of proof on this issue shall be on OWNER.
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(b) Upon completion of a periodic review or a
special review, the Planning Director shall submit a
report to the Board of Supervisors setting forth the
evidence concerning good faith compliance by OWNER with
the terms Of this Agreement and his recommended finding
on that issue.
(c) If the Board finds on the basis of substantial
evidence that OWNER has complied in good faith with the
terms and conditions of this Agreement, the review shall
be concluded.
(d) If the Board makes a preliminary finding that
OWNER has not complied in good faith with the terms and
conditions of this Agreement, the Board may modify or
terminate this Agreement as provided in Section 6.4 and
Section 6.5. Notice of default as provided under Section
8.4 of this Agreement shall be given to OWNER prior to or
concurrent with, proceedings under Section 6.4 and
Section 6.5.
6.4 Proceedinqs Upon Modification or Termination.
upon a finding under Section 6.3, COUNTY determines to proceed
with modification or termination of this Agreement, COUNTY shall
give written notice to OWNER of its intention so to do. The
notice shall be given at least ten calendar days prior to the
scheduled hearing and shall contain:
(a) The time and place of the hearing:
(b) A statement as to whether or not COUNTY
proposes to terminate or to modify the Agreement: and,
(c) Such other information as is reasonably
necessary to inform OWNER of the nature of the proceeding.
6.5 Hearing on Modification or Termination. At the
time and place set for the hearing on modification or
termination, OWNER shall be given an opportunity to be heard.
OWNER shall be required to demonstrate good faith compliance with
the terms and conditions of this Agreement. The burden of proof
on this issue shall be on OWNER. If the Board of Supervisors
finds, based upon substantial evidence, that OWNER has not
complied in good faith with the terms or conditions of the
Agreement, the Board may terminate this Agreement or modify this
Agreement and impose such conditions as are reasonably necessary
to protect the interests of the County. The decision of the
Board of Supervisors shall be final, subject only to judicial
review pursuant to Section 1094.5 of the Code of Civil Procedure.
6.6 Certificate of Aqreement Compliance. If, at the
conclusion of a Periodic or Special Review, OWNER is found to be
in compliance with this Agreement, COUNTY shall. upon request by
OWNER, issue a Certificate of Agreement Compliance
("Certificate") to OWNER stating that after the most recent
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Periodic or Special Review and based upon the information known
or made known to the Planning Director and Board of Supervisors
that (1) this Agreement remains in effect and (2) OWNER is not in
default. The Certificate shall be in recordable form, shall
contain information necessary to communicate constructive record
notice of the finding of compliance, shall state whether the
Certificate is issued after a Periodic or Special Review and
shall state the anticipated date of commencement of the next
Periodic Review. OWNER may record the Certificate with the
County Recorder.
Whether or not the Certificate is relied upon by
assignees or other transferees or OWNER, COUNTY shall not be
bound by a Certificate if a default existed at the time of the
Periodic or Special Review, but was concealed from or otherwise
not known to the Planning Director or Board of Supervisors.
7. INCORPORATION AND ANNEXATION.
7.1 Intent. If all or any portion of the Property is
annexed to or otherwise becomes a part of a city or another
county, it is the intent of the parties that this Agreement shall
survive and be binding upon such other jurisdiction.
7.2 Incorporation. If at any time during the term of
this Agreement, a city is incorporated comprising all or any
portion of the Property, the validity and effect of this
Agreement shall be governed by Section 65865.3 of the Government
Code.
7.3 Annexation. OWNER and COUNTY shall oppose, in
accordance with the procedures provided by law, the annexation to
any city of all or any portion of the Property unless both OWNER
and COUNTY give written consent to such annexation.
8. DEFAULT AND REMEDIES.
parties
it were
respect
8.1 Remedies in General. It is acknowledged by the
that COUNTY would not have entered into this Agreement
to be liable in damages under this Agreement, or with
to this Agreement or the application thereof.
if
In general, each of the parties hereto may pursue
any remedy at law or equity available for the breach of any
provision of this Agreement, except that COUNTY shall not be
liable in damages to OWNER, or to any successor in interest of
OWNER, or to any other person, and OWNER covenants not to sue for
damages or claim any damages:
(a) For any breach of this Agreement or for any
cause of action which arises out of this Agreement; or
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(b) For the taking. impairment or restriction of
any right or interest conveyed or provided under or
pursuant to this Agreement~ or
(c) Arising out of or connected with any dispute.
controversy or issue regarding the application or
interpretation or effect of the provisions of this
Agreement.
8.2 Specific Performance. The parties acknowledge that
money damages and remedies at law generally are inadequate and
specific performance and other non-monetary relief are
particularly appropriate remedies for the enforcement of this
Agreement and should be available to all parties for the
following reasons:
(a) Money damages are unavailable against COUNTY
as provided in Section 8.1 above.
(b) 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 or portions thereof. OWNER
has invested significant time and resources and performed
extensive planning and processing of the Project in
agreeing to the terms of this Agreement and will be
investing even more significant time and resources in
implementing the Project in reliance upon the terms of
this Agreement, and it is not possible to determine the
sum of money which would adequately compensate OWNER for
such efforts.
8.3 Release. Except for nondamage remedies. including
the remedy of specific performance and judicial review as
provided for in Section 6.5, OWNER, for itself, its successors
and assignees. hereby releases the COUNTY, its officers, agents
and employees from any and all claims, demands, actions. or suits
of any kind or nature arising out of any liability, known or
unknown, present or future. including, but not limited to, any
claim or liability, based or asserted, pursuant to Article I.
Section 19 of the California Constitution, the Fifth Amendment of
the United States Constitution, or any other law or ordinance
which seeks to impose any other liability or damage, whatsoever,
upon the COUNTY because it entered into this Agreement or because
of the terms of this Agreement.
8.4 Termination or Modification of Agreement for
Default of OWNER. Subject to the provisions contained in
Subsection 6.5 herein, COUNTY may terminate or modify this
Agreement for any failure of OWNER to perform any material duty
or obligation of OWNER under this Agreement, or to comply in good
faith with the terms of this Agreement (hereinafter referred to
as "default"): provided, however. COUNTY may terminate or modify
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this Agreement pursuant to this Section only after providing
written notice to OWNER of default setting forth the nature of
the default and the actions, if any, required by OWNER to cure
such default and, Where the default can be cured, OWNER has
failed to take such actions and cure such default within 60 days
after the effective date of such notice or, in the event that
such default cannot be cured within such 60 day period but can be
cured within a longer time, has failed to commence the actions
necessary to cure such default within such 60 day period and to
diligently proceed to complete such actions and cure such default.
8.5 Termination of Agreement for Default of COUNTY.
OWNER may terminate this Agreement only in the event of a default
by COUNTY in the performance of a material term of this Agreement
and only after providing written notice to COUNTY of default
setting forth the nature of the default and the actions. if any.
required by COUNTY to cure such default and, where the default
can be cured. COUNTY has failed to take such actions and cure
such default within 60 days after the effective date of such
notice or, in the event that such default cannot be cured within
such 60 day period but can be cured within a longer time. has
failed to commence the actions necessary to cure such default
within such 60 day period and to diligently proceed to complete
such actions and cure such default.
9. THIRD PARTY LITIGATION.
9.1 General Plan Litigation. COUNTY has determined
that this Agreement is consistent with its Comprehensive General
Plan, herein called General Plan, and that the General Plan meets
all requirements of law. OWNER has reviewed the General Plan and
concurs with COUNTY'S determination. The parties acknowledge
that:
(a) Litigation is now pending challenging the
legality, validity and adequacy of certain provisions
the General Plan: and,
of
(b) In the future there may be other similar
challenges to the General Plan: and,
(c) If successful, such challenges could delay or
prevent the performance of this Agreement and the
development of the Property.
COUNTY shall have no liability in damages under
this Agreement for any failure of COUNTY to perform under this
Agreement or the inability of OWNER to develop the Property as
contemplated by the Development Plan of this Agreement as the
result of a ]udicial determination that on the Effective Date, or
at any time thereafter. the General Plan, or portions thereof,
are invalid or inadequate or not in compliance with law.
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9.2 Third Party Litigation Concerning Agreement. OWNER
Shall defend, at its expense, including attorneys' fees.
indemnify, and hold harmless COUNTY, its agents, officers and
employees from any claim, action or proceeding against COUNTY.
its agents, officers, or employees to attack. set aside, void, or
annul the approval of this Agreement or the approval of any
permit granted pursuant to this Agreement. COUNTY shall promptly
notify OWNER of any such claim, action or proceeding, and COUNTY
shall cooperate in the defense. If COUNTY fails to promptly
notify OWNER of any such claim, action or proceeding, or if
COUNTY fails to cooperate in the defense. OWNER shall not
thereafter be responsible to defend, indemnify, or hold harmless
COUNTY. COUNTY may in its discretion participate in the defense
of any such claim, action or proceeding.
9.3 Indemnity. In addition to the provisions of 9.2
above, OWNER shall indemnify and hold COUNTY. its officers,
agents, employees and independent contractors free and harmless
from any liability whatsoever, based or asserted upon any act or
omission of OWNER, its officers, agents. employees.
subcontractors and independent contractors, for property damage.
bodily injury, or death (OWNER'S employees included) or any other
element of damage of any kind or nature, relating to or in any
Way connected with or arising from the activities contemplated
hereunder, including, but not limited to. the study, design.
engineering, construction, completion, failure and conveyance of
the public improvements, save and except claims for damages
arising through the sole active negligence or sole willful
misconduct of COUNTY. OWNER shall defend, at its expense,
including attorneys' fees, COUNTY, its officers, agents,
employees and independent contractors in any legal action based
upon such alleged acts or omissions. COUNTY may in its
discretion participate in the defense of any such legal action.
9.4 Environment Assurances. OWNER shall indemnify and
hold COUNTY, its officers, agents, and employees free and
harmless from any liability, based or asserted, upon any act or
omission of OWNER, its officers, agents, employees,
subcontractors. predecessors in interest, successors. assigns and
independent contractors for any violation of any federal, state
or local law, ordinance or regulation relating to industrial
hygiene or to environmental conditions on, under or about the
Property, including, but not limited to, soil and groundwater
conditions, and OWNER shall defend, at its expense, including
attorneys' fees, COUNTY, its officers, agents and employees in
any action based or asserted upon any such alleged act or
omission. COUNTY may in its discretion participate in the
defense of any such action.
9.5 Reservation of Riqhts. With respect to Sections
9.2, 9.3 and 9.4 herein, COUNTY reserves the right to either (1)
approve the attorney(s) which OWNER selects, hires or otherwise
engages to defend COUNTY hereunder, which approval shall not be
unreasonably withheld, or (2) conduct its own defense, provided,
however, that OWNER shall reimburse COUNTY forthwith for any and
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all reasonable expenses incurred for such defense, including
attorneys' fees, upon billing and accounting therefor.
9.6 Survival. The provisions of this Sections 9.1
through 9.6, inclusive, shall survive the termination of this
Agreement.
lO.
MORTGAGEE PROTECTION.
The parties hereto agree that this Agreement shall not
prevent or limit OWNER, in any manner, ~t OWNER's sole
discretion, from encumbering the Property or any portion thereof
or any improvement thereon by any mortgage, deed of trust or
other security device securing financing with respect to the
Property. COUNTY acknowledges that the lenders providing such
financing may require certain Agreement interpretations and
modifications and agrees upon request, from time to time, to meet
with OWNER and representatives of such lenders to negotiate in
good faith any such request for interpretation Or modification.
COUNTY will not unreasonably withhold its consent to any such
requested interpretation or modification provided such
interpretation or modification is consistent with the intent and
purposes of this Agreement. Any Mortgagee of the Property shall
be entitled to the following rights and privileges:
(a) Neither entering into this Agreement nor a
breach of this Agreement shall defeat, render invalid,
diminish or impair the lien of any mortgage on the
Property made in good faith and for value, unless
otherwise required by law.
(b) The Mortgagee of any mortgage or deed of trust
encumbering the Property, or any part thereof, which
Mortgagee, has submitted a request in writing to the
COUNTY in the manner specified herein for giving notices,
shall be entitled to receive written notification from
COUNTY of any default by OWNER in the performance of
OWNER's obligations under this Agreement.
(c) If COUNTY timely receives a request from a
Mortgagee requesting a copy of any notice of default
given to OWNER under the terms of this Agreement, COUNTY
shall provide a copy of that notice to the Mortgagee
within ten (10) days of sending the notice of default to
OWNER. The Mortgagee shall have the right, but not the
obligation, to cure the default during the remaining cure
period allowed such party under this Agreement.
(d) Any Mortgagee who comes into possession of the
Property, or any part thereof, pursuant to foreclosure of
the mortgage or deed of trust, or deed in lieu of such
foreclosure, shall take the Property, or part thereof,
subject to the terms of this Agreement. Notwithstanding
any other provision of this Agreement to the contrary, no
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Mortgagee shall have an obligation or duty under this
Agreement to perform any of OWNER'S obligations or other
affirmative covenants of OWNER hereunder, or to guarantee
such performance~ provided, however, that to the extent
that any covenant to be performed by OWNER is a condition
precedent to the performance of a covenant by COUNTY ,
the performance thereof shall continue to be a condition
precedent to COUNTY's performance hereunder, and further
provided that any sale, transfer or assignment by any
Mortgagee in possession shall be subject to the
provisions of Section 2.4 of this Agreement.
11. MISCELLANEOUS PROVISIONS.
11.1 Recordation of Agreement. This Agreement and any
amendment Or cancellation thereof shall be recorded with the
County Recorder by the Clerk of the Board Supervisors within the
period required by Section 65868.5 of the Government Code.
11.2 Entire Aqreement. This Agreement sets forth and
contains the entire understanding and agreement of the parties,
and there are no oral or written representations, understandings
or ancillary covenants, undertakings or agreements which are not
contained or expressly referred to herein. No testimony or
evidence of any such representations, understandings or covenants
shall be admissible in any proceeding of any kind or nature to
interpret or determine the terms or conditions of this Agreement.
11.3 Severability. If any term, provision, covenant or
condition Of this Agreement shall be determined invalid, void or
unenforceable, the remainder of this Agreement shall not be
affected thereby to the extent such remaining provisions are not
rendered impractical to perform taking into consideration the
purposes of this Agreement. Notwithstanding the foregoing, the
provision of the Public Benefits set forth in Section 4 of this
Agreement, including the payment of the fees set forth therein,
are essential elements of this Agreement and COUNTY would not
have entered into this Agreement but for such provisions, and
therefore in the event such provisions are determined to be
invalid, void or unenforceable, this entire Agreement shall be
null and void and of no force and effect whatsoever.
11.4 Interpretation and Governing Law. This Agreement
and any dispute arising hereunder shall be governed and
interpreted in accordance with the laws of the State of
California. This Agreement shall be construed as a whole
according to its fair language and common meaning to achieve the
objectives and purposes of the parties hereto, and the rule of
construction to the effect that ambiguities are to be resolved
against the drafting party shall not be employed in interpreting
this Agreement, all parties having been represented by counsel in
the negotiation and preparation hereof.
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11.5 Section Headings. All section headings and
subheadings are inserted for convenience only and shall not
affect any construction or interpretation of this Agreement.
11.6 Singular and Plural. As used herein. the singular
of any word includes the plural.
11.7 Joint and Several Obligations. If at any time
during the term of this Agreement the Property is owned, in whole
or in part, by more than one OWNER, all obligations of such
OWNERS under this Agreement shall be joint and several, and the
default of any such OWNER shall be the default of all such
OWNERS. Notwithstanding the foregoing, no OWNER of a single lot
which has been finally subdivided and sold to such OWNER as a
member of the general public or otherwise as an ultimate user
shall have any obligation under this Agreement except as provided
under Section 4 hereof.
11.8 Time of Essence. Time is of the essence in the
performance of the provisions of this Agreement as to which time
is an element.
11.9 Waiver. Failure by a party to insist upon the
strict performance of any of the provisions of this Agreement by
the other party, or the failure by a party to exercise its rights
upon the default of the other party, shall not constitute a
waiver of such party's right to insist and demand strict
compliance by the other party with the terms of this Agreement
thereafter.
11.10 No
made and entered
parties and their
have any right of
Agreement.
Third Party Beneficiaries. This Agreement is
into for the sole protection and benefit of the
successors and assigns. No other person shall
action based upon any provision of this
11.11 Force Maieure. Neither party shall 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 the
party's control, (including the party's employment force),
government regulations, court actions (such as restraining orders
or in]unctions), or other causes beyond the party's control. If
any such events shall occur, the term of this Agreement and the
time for performance by either party of any of its obligations
hereunder may be extended by the written agreement of the parties
for the period of time that such events prevented such
performance, provided that the term of this Agreement shall not
be extended under any circumstances for more than five (5) years.
11.12 Mutual Covenants. The covenants contained herein
are mutual covenants and also constitute conditions to the
concurrent or subsequent performance by the party benefited
thereby of the covenants to be performed hereunder by such
benefited party.
-25-
11.13 Successors in Interest. The burdens of this
Agreement shall be binding upon, and the benefits of this
Agreement shall inure to, all successors in interest to the
parties to this Agreement. All provisions of this Agreement
shall be enforceable as equitable servitudes and constitute
covenants running with the land. Each covenant to do or refrain
from doing some act hereunder with regard to development of the
Property: (a) is for the benefit of and is a burden upon every
portion of the Property; (b) runs with the Property and each
portion thereof; and, (c) is binding upon each party and each
successor in interest during ownership of the Property or any
portion thereof.
11.14 Counterparts. This Agreement may be executed by
the parties in counterparts, which counterparts shall be
construed together and have the same effect as if all of the
parties had executed the same instrument.
11.15 Jurisdiction and Venue. Any action at law or in
equity arising under this Agreement or brought by an party hereto
for the purpose of enforcing, construing or determining the
validity of any provision of this Agreement shall be filed and
tried in the Superior Court of the County of Riverside, State of
California, and the parties hereto waive all provisions of law
providing for the filing, removal or change Of venue to any other
Court.
11.16 Pro~ect as a Private Undertaking. It is
specifically understood and agreed by and between-the parties
hereto that the development of the Project is a private
development, that neither party is acting as the agent of the
other in any respect hereunder, and that each party is an
independent contracting entity with respect to the terms,
covenants and conditions contained in this Agreement. No
partnership, joint venture or other association of any kind is
formed by this Agreement. The only relationship between COUNTY
and OWNER is that of a government entity regulating the
development of private property and the owner of such property.
11.17 Further Actions and Instruments. Each of the
parties shall cooperate with and provide reasonable assistance to
the other to the extent contemplated hereunder in the performance
of all obligations under this Agreement and the satisfaction of
the conditions of this Agreement. Upon the request of either
party at any time, the other party shall promptly execute, with
acknowledgement or affidavit if reasonably required, and file or
record such required instruments and writings and take any
actions as may be reasonably necessary under the terms of this
Agreement to carry out the intent and to fulfill the provisions
of this Agreement or to evidence or consummate the transactions
contemplated by this Agreement.
11.18 Eminent Domain. No provision of this Agreement
shall be construed to limit or restrict the exercise by COUNTY of
its power of eminent domain.
-26-
11.19 Agent for Service of Process. In the event OWNER
is not a resident of the State of California Or it is an
association, partnership or joint venture Without a member,
partner or joint venturer resident of the State of California, or
it is a foreign corporation, then in any such event, OWNER shall
file with the Planning Director, upon its execution of this
Agreement, a designation of a natural person residing in the
State of California, giving his or her name, residence and
business addresses, as its agent for the purpose of service of
process in any court action arising out of or based upon this
Agreement, and the delivery to such agent of a copy of any
process in any such action shall constitute valid service upon
OWNER. If for any reason service of such process upon such agent
is not feasible, then in such event OWNER may be personally
served with such process out of this County and such service
shall constitute valid service upon OWNER. OWNER is amenable to
the process so served, submits to the jurisdiction of the Court
so obtained and waives any and all objections and protests
thereto.
11.20 Authority to Execute. The person or persons
executing this Agreement on behalf of OWNER warrants and
represents that he/they have the authority to execute this
Agreement on behalf of his/their corporation. partnership or
business entity and warrants and represents that he/they has/have
the authority to bind OWNER to the performance of its obligations
hereunder.
IN WITNESS WHEREOF. the parties hereto have executed this
Agreement on the day and year set forth below.
Dated:
ATTEST:
GERALD A. MALONEY
( SEAL )
~~, Board of Supervisors
1
3806LIT
9-25-88
-27-
Dated:
October 21, 1988
OWNER:
Assistant Secretary
State of California )
)
County of Contra Costa )
ss
On this 21st day of October, 1988, before me, the undersigned,
personally appeared PETER B. BEDFORD and MAUREEN DROTLEFF,
personally known to me (or proved to me on the basis of
satisfactory evidence) to be the persons who executed the within
instrument as PRESIDENT and ASSISTANT SECRETARY, respectively, on
behalf of KAISER DEVELOPMENT COMPANY, the corporation therein
named, and acknowledged to me that such corporation executed the
within instrument pursuant to its by-laws or a resolution of its
board of directors.
WITNESS my hand and official seal.
o~tary Public
(ALL SIGNATURES SHALL BE ACKNOWLEDGED BEFORE A NOTARY PUBLIC.
EXECUTION ON BEHALF OF ANY CORPORATION SHALL BE BY TWO CORPORATE
OFFICERS.)
Develo,pment No.
EXHIBIT A
Page 1
LEGAL DESCRIPTION
VAIL MEADOWS BOUNDARY
That certain parcel of land in the unincorporated territory of the County of
Riverside, State of California, lying partly within the Rancho Temecula granted
by the Government of the United States of America to Luis Vignes by patent dated
January 18, 1860 and recorded in Book 1, Page 45 of Patents in the Office of the
County Recorder of San Diego County, California, and partly within the Rancho
Pauba granted by the Government of the United States of America to Luis Vignes
by patent dated January 19, 1860 and recorded in Book 1, Page 45 of Patents in
said Office of the San Diego County Recorder, and partly within Parcel Map No.
16681 as shown on a map thereof filed in Book 100, Pages 18 and 19 of Parcel
Maps in the Office of the County Recorder of said Riverside County, described as
follows:
BEGINNING at the centerline intersection of Margarita Road with Pauba Road as
shown on Parcel Map No. 6607 filed in Book 21, Pages 61 through 67 of Parcel
Maps in said Office of the Riverside County Recorder; thence along said center-
line of Pauba Road as defined by documents recorded April 28, 1971 as Instrument
No. 44142 of Official Records, Parcel Map No. 7155 filed in Book 24, Page 72 of
Parcel Maps and Parcel Map No. 22514 filed in Bcok 145, Pages 80 through 85 of
Parcel Maps, all in said Office of the Riverside County Recorder, through the
following courses: North 55021'56" East 226.46 feet to the beginning of a tan-
gent curve concave southeasterly and having a radius of 5000.00 feet; thence
along said curve northeasterly 300.10 feet through a central angle of 3°26'20";
thence tangent from said curve North 58°48'16" East 663.57 feet to the beginning
of a tangent curve concave southeasterly and having a radius of 1200.00 feet;
thence along said curve northeasterly 493.58 feet through a central angle of
23°34'00"; thence tangent from said curve North 82°22'16'' East 489.16 feet to
the beginning of a tangent curve concave northwesterly and having a radius of
1600.00 feet; thence along said curve northeasterly 403.53 feet through a
central angle of 14°27'02"; thence tangent from said curve North 67°55'15'' East
1327.41 feet to the beginning of a tangent curve concave northwesterly and hav-
ing a radius of 3000.00 feet; thence along said curve northeasterly 1055.48 feet
through a central angle of 20°09'29"; thence tangent from said curve
North 47°45'45" East 261.98 feet to the beginning of a tangent curve concave
southeasterly and having a radius of 3000.00 feet; thence along said curve
northeasterly 788.08 feet through a central angle of 15°03'04"; thence tangent
from said curve North 62°48'49" East 626.86 feet to the beginning of a tangent
curve concave southeasterly and having a radius of 1200.00 feet; thence along
said curve northeasterly 396.42 feet through a central angle of 18°55'40";
thence tangent from said curve North 81°44'30" East 679.16 feet to the beginning
of a tangent curve concave northwesterly and having a radius of 1200.00 feet;
~EXHIBIT A
Page 2
thence along said curve northeasterly 504.33 feet through a central angle of
24~04'49"; thence tangent from said curve North 57°39'41" East 379.91 feet to
the beginning of a tangent curve concave southeasterly and having a radius of
1200.00 feet; thence along said curve northeasterly 304.01 feet through a
central angle of 14°30'56'' to the centerline of Butterfield Stage Road as shown
on said Parcel Map No. 22514; thence leaving said centerline of Pauba Road,
along said centerline of Butterfield Stage Road as defined by Tract No. 12005-1
filed in Book 121, Pages 50 through 57 of Maps and said Parcel Map No. 16681
filed in Book 100, Pages 18 and 19 of Parcel Maps, both in said Office of the
Riverside County Recorder, through the following courses: South 4°25'05" East
1626.75 feet to the beginning of a tangent curve concave easterly and having a
radius of 3000.00 feet; thence along said curve southerly 548.76 feet through a
central angle of 10°28'50"; thence tangent from said curve South 14°53'55" East
'1380.24 feet to the beginning of a tangent curve concave northeasterly and
having a radius. of 1200.00 feet; thence along said curve southeasterly 895.83
feet through a central angle of 42°46'22"; thence tangent from said curve
South 57:40'17" East 785.15 feet to the beginning of a tangent curve concave
southwesterly and having a radius of 1200.00 feet; thence along said curve
southeasterly 727.42 feet through a central angle of 34°43'54"; thence tangent
from said curve South 22°56'23" East 3021.56 feet to the southerly line of said
Parcel Map No. 16681; thence leaving said centerline of Butterfield Stage Road,
along said southerly line South 73°23'21" West 828.28 feet to the southeast
corner of Parcel PW4 per document recorded April 20, lg67 as Instrument No.
34389 of Official Records in said Office of the Riverside County Recorder;
thence along the boundary line of said Parcel PW4 North 16°36'39" West 100.00
feet, South 73°23'21" West 100.00 feet and South 16°36'39" East 100.00 feet to
said southerly line of Parcel Map No. 16681; thence along said southerly line
South 73°23'21" West 6321.61 feet to an angle point therein; thence along the
boundary line of said Parcel Map No. 16681 through the following courses:
North 61°46'07'' West 49.38 feet; thence North 16°56'07" West 856.14 feet; thence
North 73°03'54" East 261.70 feet; thence North 16e33'25" West 491.54 feet to an
angle point therein; thence leaving said boundary line, along the boundary line
of Tract No. 3752 filed in Book 59, Pages 53 through 55 of Maps in said Office
of the Riverside County Recorder, through the following courses:
North 16e33'25" West 527.76 feet; thence South 73°03'54" West 268.42 feet;
thence North 16°56'06'' West 39.64 feet; thence South 73°03'54" West 55.00 feet
to a point on the centerline of Margarita Road as shown on said Tract No. 3752,
said point being the beginning of a non-tangent curve concave southwesterly and
having a radius of '1200.00 feet, a radial line of said curve from said point
bears South 73°03'54" West; thence leaving said boundary line of Tract No. 3752,
along said centerline of Margarita Road as defined by Tract No. 9833-3 filed in
Book 120, Pages 86 through 91 of Maps and said Parcel Map No. 6607 filed in Book
21, Pages 61 through 67 of Parcel Maps, both in said Office of the Riverside
County Recorder, through the following courses: along said curve northwesterly
1145.56 feet through a central angle of 54°41'46"; thence tangent from said
curve North 71°37'53'' West 660.70 feet to the beginning of a tangent curve
concave northeasterly and having a radius of 1200.00 feet; thence along said
curve northwesterly 1270.94 feet through a central angle of 60°40'58"; thence
tangent from said curve North 10°56'54'' West 566.77 feet to the beginning of a
-2-
EXHIBIT A
Page 3
tangent curve concave westerly and having a radius of 2000.00 feet; thence
along said curve northerly 606.30 feet through a central angle of 17°22'10";
thence tangent from said curve North 2801g'04" West B2g.67 feet to the beginning
of a tangent curve concave southwesterly and having a radius of 1200.00 feet;
thence along said curve northwesterly 572.64 feet through a central angle of
27°20'29"; thence tangent from said curve North 55°39'34" West 417.66 feet to
the beginning of a tangent curve concave northeasterly and having a radius of
2000.00 feet; thence along said curve northwesterly 174.46 feet through a
central angle of 4°5g'52" to the POINT OF BEGINNING.
Lot 25 of Tract No. 3752, in the County of Riverside, State Of Califorrda, as
per map filed in Book 59, Pages 53 to 55 of Maps, records of Riverside County
Excepting therefrcm that portion conveyed to the Temecula Union Sc~Dol District
per deed recorded November 12, 1987 as Inset No. 324399.
-3-
EXHIBIT B
Page 1 - L:~
E)~IBIT B
EXHIBIT B
Page 2
Development Agreement No. 4
EXHIBIT C
EXISTING DEVELOPMENT APPROVALS
SPECIFIC PLAN
Specific Plan No. 219.
ZONING
1. Ordinance No. 348.2919
(Zone Change No. 5140)
The development approvals listed above include the approved
maps and all conditions of approval.
COPIES OF THE EXISTING DEVELOPMENT APPROVALS LISTED ABOVE ARE
ON FILE IN THE RIVERSIDE COUNTY PLANNING DEPARTMENT AND ARE
INCORPORATED HEREIN BY REFERENCE,
Development Agreement No. 4
EXHIBIT "D"
EXISTING LAND USE REGULATIONS
Riverside County Comprehensive General
amended through Resolution No. 88-485.
Ordinance No.
Ordinance No.
348.2857.
Ordinance No.
448.a.
Ordinance No.
458.8.
Ordinance No.
460.92.
Ordinance No.
461 6.
7
8 Ordinance No.
509 2.
9 Ordinance No.
546 7a.
10. Ordinance No.
547 5.
11. Ordinance No.
555.15,
12. Ordinance No.
617.1.
13. Ordinance No.
14. Resolution No.
Plan as
340.
348 as amended
448 as amended
458 as amended
460 as amended
461 as amended
509 as amended
546 as amended
547 as amended
through Ordinance No.
through Ordinance No.
through Ordinance No.
through Ordinance No.
through Ordinance No.
through Ordinance No.
through Ordinance No.
through Ordinance No.
555 as amended through Ordinance No.
617 as amended through Ordinance No.
650.
87-525 Establishing Procedures and
Requirements for the Consideration of Development
Agreements, as amended by Resolution No. 88-39 and
Resolution No. 88-119.
COPIES OF THE EXISTING LAND USE REGULATIONS LISTED ABOVE
ARE ON FILE IN THE RIVERSIDE COUNTY PLANNING DEPARTMENT AND ARE
INCORPORATED HEREIN BY REFERENCE.
Development Agreement No. 4
EXHIBIT E
FEE CREDITS
None.