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HomeMy WebLinkAboutResolution - 2383 STATE OF CALIFORNIA ) RESOLUTION NO. 2383 COUNTY OF RIVERSIDE)ss CITY OF SAN JACINTO ) A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SAN JACINTO, CALIFORNIA, MODIFYING THAT CERTAIN DEVELOPMENT AGREEMENT DATED SEPTEMBER 19, 1989 BY AND BETWEEN THE CITY OF SAN JACINTO AND PR EQUITIES, LTD. WHEREAS, the City of San Jacinto (the "City") and PR Equities ("Developer") have entered into that certain Development Agreement dated September 19, 1989 and effective as of October 19, 1989 (the "Development Agreement"), attached hereto as Exhibit "A" and incorporated by reference herein; and WHEREAS, the Development Agreement would have expired by its own terms on October 19, 2001; and WHEREAS, the City Council approved the third one hundred and twenty (120) day extension of time on June 6, 2002; and WHEREAS, Section 7.1 of the Development Agreement provides that the City may modify the Development Agreement for any failure of the Developer to perform any material duty or obligation of the Developer under the Development Agreement; and WHEREAS, the City has evidence that the Developer has failed to perform one or more material duties or obligations of the Developer under the Development Agreement; and WHEREAS, the City desires to modify the Development Agreement by extending the term of the Development Agreement for a fourth time by one hundred and twenty (120) days from the date of the second Extension of Time Date of February 14, 2003 in order to determine the full nature and extent of the Developer's failure to perform one or more of the material duties or obligations under the Development Agreement and to deal with such failures as the City later determines to be appropriate; and WHEREAS, all other legal prerequisites to the adoption of this Resolution have occurred. Page 1 of 3 NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF SAN JACINTO RESOLVES AS FOLLOWS: SECTION 1: The Development Agreement dated September 19, 1989 by and between the City of San Jacinto and PR Equities, Ltd. (the "Development Agreement") is hereby modified pursuant to section 7.1 of the Development Agreement by extending the expiration date of the Development Agreement to February 14, 2003, which is one hundred and twenty (120) days following October 17, 2002. Except as expressly modified hereby all other terms, conditions and obligations of the Development Agreement shall remain in full force and effect. SECTION 2: This Resolution shall become effective immediately upon its adoption by the City Council. PASSED, APPROVED AND ADOPTED, this 3`c day of October, 2002 by a 310 vote. Ayes: Carlson-Buydos, Good, Ayres Nays: None Abstain: None Absent: Conner t : City of San Jacinto Porn Ayr , Vice Mayor ATTEST: r�A^ VY�1 orothy L. ho.uinard, City Clerk Page 2 of 3 EXHIBIT "A" DEVELOPMENT AGREEMENT Page 3 of 3 EXHIBIT "A" DEVELOPMENT AGREEMENT CD � 4'y p RECORDING REQUESTED BY U Y AND WHEN RECORDED MAIL TO: � Clj 1 City of San Jacinto ►u m CL City Clerk' s office lu 201 East Main Street U ¢� San Jacinto, CA 92583 AMENDMENT TO DEVELOPMENT AGREEMENT (California Government Code Sections 65864-65869. 5) This Amendment to Development Agreement is entered into this 1st day of September 1992 , by and between PR EQUITIES , LTD. , a California Limited Partnership ( "Owner") , and the CITY OF SAN JACINTO, a Municipal Corporation ("City" ) . It is the purpose of this Agreement to amend that certain DEVELOPMENT AGREEMENT mane between the parties hereto, dated September 19 , 1989 , and recorded as Instrument No. 419784 on November 30, 1989 , Records of Riverside County , California . RECITALS WHEREAS , on September 19, 1999 , the City Council of the City of San Jacinto adopted Ordinance No. 873, approving the Development Agreement between the parties hereto, which agreement was recorded November 30, 1989 as Instrument No. 419784 , Records of Riverside County, and WHEREAS , the parties now desire to amend the Development Agreement to provide for certain minimum floor and minimum average floor areas per dwelling within the remaining 220 acres of Phase II of the Rancho San Jacinto Specific Plan , and WHEREAS , on August 12 , 1992 , CITY ' S Planning Commission, after proper notice held a public hearing on this Agreement to Amend the Development Agreement. The City Council, after providing public notice as required by law, similarly held a public hearing on September 2 , 1992 , and 344296 WHEREAS, pursuant to Paragraph 4 . 5 of the Development '*AW Agreement , changes and amendments nay be made to Development Approvals when the same are found to be appropriate and mutually desirable. NOW THEREFORE, IT IS AGREED AS FOLLOWS : 1. This Agreement shall effect the property described as Tentative Tracts Nos. 24050, 24051, 24052 , 240530 24D54 , 24055, 24056, 24057 , 26426 and 26427 , all contained within the Rancho San Jacinto Specific Plan as described in the attached Exhibit "A}' , hereto , excluding therefrom the area north of Commonwealth and Esplanade Avenues, City of San Jacinto, California. 2 . The Development Agreement dated September 19 , 1989 and recorded November 30 , 1989 as Instrument No. 419784 shall be and is hereby amended by adding thereto at Exhibit "A" entitled "Existing Developmental Approvals" , the addendums attached hereto and entitled as follows : Addendum 1992-1 to Exhibit "A" Addendum 1992-2 to Exhibit "A" This Agreement has been executed by the parties at San Jacinto, California , on the day and year first above written. CITY" OF SAiv jAC:INTG, a Municipal corporation By.- FRANCIS R. BOYKII3, MAYOR P.R. EQUITIES , LTD. , a California Limited Partnership By: The Peacock-Radaker Corporation, a California corporation, General Partner � � e By: S even . Peacock, President By: Da id L. Cottington Vice President 34429E NOW State of California j ) County of Riverside } On before me, the undersigned, a Notary Public in and for said State, personally appeared FRANCIS R. BOYKIN, personally known to me, to be the person whose name is subscribed to the within instrument and acknowledged to me that he executed the same. f..wa 'RHRS!tRtdfM+� w+'RMM wMMM ! 'i 3 WITNESS my hand and official seal . OFFICIAL SEAL 3 : L,AUFIAA.MORA �{i: Notary Public Caiilomia RIVERSIDE COUNTY My Commission Expires Sept. 24, 19941 CL1 (SEAL) na -e Notary Publi State of California ) 3 county of ``Riverside ) On 111�ju5# 1iL�' ����� before me, the undersigned, a Notary Public in and for said state, personally appeared STEVEN R. PEACOCK, President and DAVID L. COTTINGTON, Vice President, personally known to me arm r^tea *� en the evidence to be the persons who executed the within instrument as the President and Vice President, on behalf of Peacock-Radaker Corp. , the corporation therein named, and acknowledged to me that said corporation executed the within instrument pursuant to its bylaws or a resolution of its board of directors, said corporation being known to me to be one of the partners of PR EQUITIES, LTD, the partnership that executed the within instrument, and acknowledged to me that such corporation executed the same as such partner and that such partnership executed the same. WITNESS my hand and official seal . OFFICIAL SEAL DEBRA I. WOLGEEMUTH m A.- NOTARY PUDUC - CAMFORNIA RIVEMD_ Cp"I Y My Comm. a:�ir !:IG lfi, 1943 (SEAL) Signature Notary, ublic -3- COMMUNITY FACILITIES DISTRICT NO. 2 3411296 MELLO-ROOS COMMUNITY FACILITIES ACT OF 1982 SAN JACINTO VALLEY DEVELOPMENT LEGAL DESCRIPTION A portion of the H.T. Hewitt's Addition to San Jacinto as shown by Map on file in Book 13 of Maps, Page 624 , Records of San Diego County, California, a portion of the resubdivision of the H. T. Hewitt' s Addition to San Jacinto as shown by Map on file in Book 2 of Maps , Page 43 , Records of Riverside County, California, a portion of the Kumler Ranch Tract Addition as shown by Map on file in Book 8 of Maps , Page 52 , Records of Riverside County, California , and a portion of Lands of the Hemet Land Company as shown by Map on file in Hook 1 of Maps, Pages 14 and 15, Records ❑f Riverside County, California , lying within Sections 35 and 36, Township 4 South, Range 1 West, Sections 1 and 2 , Township 5 South, Range 1 West and Sections 6, Township 5 South, Range 1 East, San Bernardino Base and Meridian, described as follows: Beginning at the centerline intersection of Hewitt Street and Evans Street ( formerly known as Third Street) , as said intersection is shown orf Record of Survey on file in Book 60 of Records of Survey, Page 23 , said Riverside County Records; Thence South 69 '45146" East along said centerline of Evans r Street a distance of 4805. 36 feet to an intersection with the centerline of Old Mountain Avenue) ; Thence South 44 ' 52147" East along said centerline of Old Mountain Avenue a distance of 839. 98 feet to an intersection with the Northerly prolongation of the west line of that certain parcel of land described in Deed recorded October 7 , 1959 , as Instrument No. 05936 , Official Records of said Riverside County ; Thence South 00' 06 ' 05" East along said prolongation and West line , and its Southerly prolongation, a distance of 477 . 53 feet to an intersection with the centerline of Tanner Street (formerly known as Sixth Street) ; Thence North 89 ' 53 ' 12" East along said centerline of Tanner Street, a distance of 473 . 75 feet to an intersection with the centerline of the aforementioned Mountain Avenue; Thence South 44 '53 ' 09" East along said centerline of Mountain Avenue, a distance of 1537 . 16 feet to an intersection with the centerline of Commonwealth Avenue; Thence South 44 '.52 ' 20" East along said centerline of Moun- tain Avenue a distance of 1066. 5E feet to an intersection with the Easterly prolongation of the Southerly line of Lot 2 , Block 93 , of Lands of the Hemet Land Company as shown by Map an file in Book 1 of Maps, Pages 14 and 15 , said Riverside County Records ; Exhibit A page 1 344296 COMMUNITY FACILITIES DIST. NO. 2 - LEGAL DESCRIPTION (coat. ) "Raw Thence North 89' 18103" West along said prolongation and Southerly line a distance of 786. 58 feet to an intersection with the centerline of Meridian Street; Thence South 00' 15114" West along said centerline of Meridian Street a distance of 746.22 feet to the intersection with the centerline of Washington Avenue; Thence South 89 '52121" West along said centerline of Washington Avenue a distance of 6217. 59 feet to an intersection with the centerline of Vienna Street as vacated by Resolution of the Riverside County Hoard of Supervisors recorded January 29 , 1921 , in Book 542 of Deeds, Page 28 , Records of said Riverside County, California ; Thence North 00' 08 ' 40" West along said centerline of Vienna Street (vacated) a distance of 1495 . 07 feet to an intersection with the centerline of said Commonwealth Avenue; Thence South 89 ' 53 ' 49" West along said centerline of common- wealth Avenue a distance of 673 . 34 feet to an intersection with the centerline of said Hewitt Street; Thence North 00' 39 ' 47" West along said centerline of Hewitt Street a distance of 2193 . 40 feet to the point of beginning. CONTAINING A CALCULATED AREA OF 511 . 009 ACRES , MORE OR LESS . Excepting therefrom the Easterly 100. 00 feet of the Westerly 134 . 26 feet of the Southerly 100. 00 feet of Lot 30 of said H.T. Hewitt' s Addition to San Jacinto. Also excepting therefrom the South 350 . 00 feet of the West 30 . 00 feet of Lot A designated as Kumler Street, the South 380.00 feet of Lot 4 , and Lot 6 , all being as shown on said Kumler Ranch Tract Addition. Also excepting therefrom that portion of said Lot 2 , Block 93 , Lands of Hemet Land Company, described in the Deed to Riverside County Flood Control and Conservation District recorded December 30, 1986, as Instrument No. 333509 , Official Records of said Riverside County, California. CONTAINING A CALCULATED NET AREA OF 503 , 658 ACRES , MORE OR LESS. Exibit A T)aee 2 ORDINANCE NO. 311296 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF SAN JACINTO AMENDING DEVELOPMENT AGREEMENT 1-89 MADE BETWEEN TIIE CITY AND PR EQL:ITIES, LTD, DATED SEPTEMBER 19, 1989, AND RECORDED ON NOVEMBER 30, 1989 AND AUTHORIZING THE EXECUTION OF THE AMENDMENT TO THE DEVELOPMENT AGREEMENT ATTACHED HERETO AS EXHIBIT "A" WHEREAS, on Septemher 19, 1989, the City Council adopted Ordinance No. 873, approving Development Agreement 1-89, affecting real property known as the Rancho San Jacinto Specific PIan; and WHEREAS, the parties of the agreement now desire to amend Development Agreement 1-89 to provide for certain minimum flonr and average minimum floor areas per dwellings within the remaining 220 acres of Phase lI of the Rancho San Jacinto Specific flan; and WHEREAS, on August 12, 1992, the Planning Commission, after proper notice held a public hearing on the request to amend Development Agreement 1-89. The City Council, after providing public notice as prescribed by law, similarly held a public hearing on September 1, 1992; and WHEREAS, pursuant to paragraph 4-5 of Development Agreement 1-89, changes and amendments may be made to the Development Agreement when said changes are found to be appropriate and mutually desirable. NOW THEREFORE, THE CITY COUNCIL DOES HEREBY ORDAIN AS FOLLOWS: SECTION 1. Sections 65864 - 65869.5 of the Government Code of the State of California permits the City to enter into a Development Agreement with a property owner. SECTION 2. Ordinance No. 831 of the City established the rules and procedures for the consideration of Development Agreements. SECTION 3.The City Council does hereby approve the amendment to Development Agreement 1.89 attached hereto and incorporated as a part hereof as Exhibit "A". 1 34429E SECTION 4. The City Clerk shall certify to the adoption of this Ordinance and cause the same to be published in a newspaper of general circulation printed and published in the County of Riverside, State of California. Introduced at a regular meeting of said City Council on the _ day of , 1992. MOVED, PASSED AND ADOPTED at a regular meeting of the City Council on the day of 1992 by the following vote: AYES: NOES: ABSENT: ATTEST :Mayor Deputy City Clem CERTIFICATE STATE OF CALIFORNIA, COUNTY OF RIVERSIDE, CITY OF SAN JACINTO, I hereby certify that the foregoing is a true copy of Ordinance No. duly adopted by the City Councii of the City of San Jacinto at a regular meeting thereof held the day of 1992. City Cleric 3�g29� ADDENDUM 1992-1 TO EXHIBIT "A" "EXIS^ING DEVELOPMENTAL APPROVALS" RANCHO SAN JACINTO PHASE IZ DEVELOPMENT PLAN TRACT LOT SIZE TCTAL LOTS % OF TOTAL 24050 5000 83 Min. 1231 S . F. 24051 5000 64 Avg. 1400 S .F. 24052 6000 117 SUBTOTAL 264 33% 24053 ?200 84 Min . 1360 S .F. 24054 6000 124 Avg. 1600 S .F. 24055 7200 47 26426 7200 73 SUBTOTAL 328 37% 24056 7200 103 Min. 1500 S . F. r 24057 7200 92 Avg. 1750 S . F. 26427 7200 92 SUBTOTAL 287 33% GRAND TOTAL 879 1r 3442tk" 111W ADDENDUM 1992-2 TO EXHIBIT "A" "EXISTTNG DEVELOPMENTAL APPROVALS" PHASE II RANCHO SAN JACINTO DEVELOPMENT PLAN Tentative tract maps r24050 , 24051 , 24052 Minimum dwelling size 1 , 231 sq. ft . Average size dwelling size 1 , 400 sq. ft. Tentative tract maps �24053 , 24054 , 24055 , 26426 Minimum dwelling size 1, 360 sq. ft. Average size dwelling size 1 , 600 sq. ft . Tentative tract maps ;24056 , 24057 , 26427 Minimum dwelling size 1 , 500 sq . ft . Average size dwelling size 1 , 750 sq . ft. NOTE: The Ultimate average dwelling unit size should be no less than 95% of the model average for the related tract to allow for changes in the .. mix brought (in by market pressures . 3g-1296 low ADDENDUM 1992-2 TO EXHIBIT "A" "EXISTING DEVELOPMENTAL APPROVALS" PHASE II RANCHO SAN JACINTO DEVELOPMENT PLAN Tentative tract maps #24050, 24051, 24052 Minimum dwelling size 10231 sq. ft. Average size dwelling size 1,400 sq. ft. Tentative tract maps 424053, 24054 , 24055, 26426 Minimum dwelling size 1, 360 sq. ft. Average size dwelling size 1, 600 sq. ft. Tentative tract maps �24056, 24057 , 26427 Minimum dwelling size 1, 500 sq. ft. Average size dwelling size 1 , 750 sq. ft. Note: The average dwelling unit size should be allowed to vary at least 5% to allow for changes in the mix brought on by market pressures. NOW RECORDING REQUESTED BY AND WHEN RECORDED MAIL TO: CITY OF SAN JACINTO City Clerk ' s Office 2D1 East Main Street San Jacinto, California 92383 Attn: DEVELOPMENT AGREEMENT (California Government Code Sections 65864-65869 . 5) This Development Agreement ( "Agreement" ) is entered into effective on September 19 . , 1989 , by and between PR EQUITIES, LTD. , a California limited partnership ( "OWNER" ) , and the CITY OF SAN JACINTO , a municipal corpora- tion ( "CITY" ) . �.. RECITALS A. When used in these recitals , each of the terms defined in Article 1 of this Agreement shall have the meaning given to it therein. B. California Government Code sections 65864 throuch 65869 . 5 authorize CITY to enter into binding development agreements with persons having legal or equitable interests zn real property for the development of such property , in order to, among other things : encourage and provide for the development of public facilities in order to support the development of ne_w housing; provide certainty in the approval of development projects in order to avoid the waste of resources and the escalation of the cost of housing and other development to the consumer and encourage investment in and commitment to comprehensive planning which will make maximum efficient utilization of resources at the least economic cost to the public ; and provide assurance to developers ( 1 ) that they may proceed with their projects in accordance with existing policies , rules and regulations , subject to their conditions of approval and ( 2 ) in order to strengthen the public planning process and encourage private participation in comprehensive planning and reduce the economic costs of development . 1 C. OWNER is the holder of a legal or equitable interest in that certain Property (hereinafter defined ) and desires and intends to develop the Property as a large-scale , mixed use development €or the uses and purposes set forth in the Specific Plan ( as defined below ) . The development of the Property requires suhst.antial early and major capital expen- ditures and investments with respect to the construction and installation of major infrastructure facilities , both on-site and off-site, of sufficient capacity to serve the residents and others using the Property as anticipated by the Specific Plan and this Agreement . D. On July 19 , 1988 , the development of the Property was authorized by Resolution No. 1772 of the City Council of CITY approving the Specific Plan . E. On August lt , 1988 , CITY adopted Ordinance No. 846 amending zoning map of CITY establishing planned community development zoning overlaying the Specific Plan - F . OWNER Intends to proceed with the development of the Property as soon as 'is feasible. G. OWNER and CITY intend to enter intn this Agreement relating to the development of the Property to provide some `r► certainty in the land use regulations and policies applicable to the Property, to provide for the orderly development of the Property, to ensure progressive installation of necessary improvements , provide for public services appropriate for the development of the Property, and generally serve the purposes for which development agreements under sections 65864 , et seq . , of the California Government Code are intended . H . On January 3 , 1989 , pursuant to California Government Code, Sections 53311 et seq. ( "Mello Roos Community Facilities Act of 1982 " ) Community Facilities District No_ 2 _( "CFD" ) was formed by City Resolutions Nos . 1795 , 1796 , 1797 and 1798 . The CFD was formed pursuant to a petition , executed by OWNER, requesting the district to be formed to provide a financing mechanism to pay for the construction of certain Public Improvements (as hereinafter defined) that would benefit the Property . OWNER advanced those mUnies needed to pay all costs associated with forming the CFD and retained and paid civil engineers to design and engineer the public facilities to be constructed . Said public facilities were designed to benefit the Property and certain of the facilities are over-sized to benefit adjacent properties and the public at large . OWNER consented to the formation of the CFD. 2 1 , OWNER has incurred and will in the future incur substantial costs in order to ensure development of the Property in accordance with this Agreement . J _ On 08-16-89 , 1989 , CITY' s Planning Commission, after giving notice pursuant to California Government Code sections 65854 , 65854 . 5 and 65856 , held a public hearing on this Agreement . Council of CITY, after providing public notice as required by law, similarly held a public hearing nn 09_05-89 + 1989 . K . CITY has found that this Agreement is consistent with the Specific Plan, as well as all other applicable policies and regulations of CITY , and that completion of the Development (as hereinafter defined) is consistent with the specific Plan and all specific plans within the CITY and will provide balanced land uses and economically sound communities so as to maintain the overall quality of life and environment within the CITY . L_ On (B- 19-89 1989 , the City Council of CITY adopted Ordinance Na . A approving this Agreement ; the Ordinance took effect on 10-19-89 1989 ( "Effective Date" ) . NOW, THEREFORE, in consideration of the above-recited facts and of the mutual covenants hereinafter contained and for other good and valuable consideration, receipt and sufficiency of which is hereby acknowledged, the parties agree as follows : ARTICLE 1 DEFINITIONS 1 . 1 "Agreement " means this Development Agreement . 1 . 2 "Assumption Agreement" shall have the meaning ascribed to it in Section 2 . 4 . 2 . 1 . 3 "CITY" means the City of San Jacinto, County of Riverside, State of California , a municipal corporation. 1 . 4 "City Council" shall mean the City Council of CITY as duly composed from time to time . 1 . 5 "CFD" shall have the meaning ascribed to it in Paragraph H of the Recitals . 3 1 . 6 "Development" means the improvement of the Property for the purposes of completing structures , improve- ments and facilities thereon , and the construction of infra- structure and other Public Facilities related thereto whether located within or outside the Property. "Development" does not include the maintenance, repair , reconstruction or redevelopment of any building, structure, improvement or facility after the construction , completion and acceptance thereof . 1 . 7 "Development Approvals" means site specific plans , maps , permits and other entitlements to use, of every kind and nature, approved or granted by CITY in connection with the Development , including , without limitation , feature plans , area plans , site plans , tentative and final subdivi- sion tract maps , conditions of approval , parcel maps , vesting tentative maps, conditional and special use permits, grading , building and other similar permits , and zoning . 1 . 8 "Development Fee" means 1 . 8 . 1 Requirements of CITY in connection with or pursuant to any Land Use Regulation or Development Approval for the payment of fees or money or the construction or improvement of Public Facilities in order to lessen, offset , mitigate or compensate for the adverse impacts of the Project on the environment or other public concerns or interests ; 1 . 8 . 2 Assessments and levies by CITY for the improvement , construction or acquisition of any public infrastructure, facilities or property imposed as a condition of the Development , other than general real property , sales and ad valorem taxes , or 1 . 8 . 3 Building Permit Fees . 1 . 9 "Devel-opment Plan" means all ordinances , resolu- tions, codes , rules , regulations, general plan and official policies of CITY in effect on the Effective Date of this Agreement relating to growth management and environmental considerations of CITY and/or which govern the permitted uses and development of the Property, and/or the density, design, improvement and construction standards and specifications applicable to the Development and/or to the Property , and all permits or approvals issued or granted by CITY in uQnnection with any of the foregoing. The Development Plan includes, without limitation, the Specific Plan and approved sub- division tract maps relating to the Project . 1 . 10 "Effective Date" shall have the meaning ascribed to it in Paragraph L of the Recitals . 4 L 11 "Existing Development Approvals" means those certain Development Approvals in effect on the Effective Date with respect to the Property and/or the Development , includ- ing without limitation, the Existing Development Approvals which are listed on Exhibit "A" , attached hereto and incor- porated herein by this reference . 1 . 12 "Existing Land Use Regulations" means those certain Land use Regulations in effect on the Effective Date , including without limitation , City Ordinance 34C , the General Plan as amended by City Resolution No. 1772 and the approved conceptual anc comprehensive Development Plan . 1 . 13 "Land Use Regulations" means all ordinances , resolutions , codes , rules , regulations and official policies of CITY governing the development and use of land , including without limitation, growth management and environmental considerations , 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 all design , improvement and construction standards and specifi- cations applicable to the Development and/or to the Property . w■. 1 . 14 "Mortgage" means a mortgage , deed of trust , sale and leaseback arrangement or other transaction in which the Prope.rty or a portion thereof or an interest therein is pledged as security, contracted for in good faith and for fair value . 1 . 15 "Mortgagee" means the holder of the beneficial interest under a Mortgage or the owner of the Property or interest therein under a Mortgage . 1 . 16 "OWNER" means the person or legal entity having a legal or equitable interest in the Property and includes PR EQUITIES, LTD. , a California limited partnership, and its successors in interest . 1 . 17 "Property" means that certain real property , consisting of approximately four hundred seventy-one ( 471 ) acres , located north of Park Hill , southwest of the San Jacinto River and southeast of the center of the City of San .Jacinto, Riverside County, California , as more particu- larly described and shown on Exhibit "S" , attached hereto and incorporated herein by this reference . 1 . 18 "Public Facilities" shall have the meaning ascribed to it in Section 3 . 1 herein . 5 1 . 19 "Reservations of Authority" means the rights and authority excepted from the assurances and rights provided to OWNER under this Agreement and reserved to CITY in Section 4 . 6 . 1. 20 "Specific Plan" shall mean, collectively , the San Jacinto Valley I Specific Plan and the San Jacinto Valley II Specific Plan, also known as Specific Plans 1-88 and 2-8B, as approved by CITY Resolution No. 1772, adopted on July 19 , 1988 . A copy of said Resolution No. 1772 is attached hereto as Exhibit "C" and incorporated herein by this reference . 1 . 21 "SubsequenL Development Approvals" means all Development Approvals required subsequent to the Effective Date in connection with the Development . 1 . 22 "Subsequent Land Use Regulations" means any Land. Use Regulations which may be adopted and/or become effective after the Effective Date . ARTICLE 2 GENERAL PROVISIONS 2 . 1 Interest of OWNER. OWNER represents and warrants to CITY that , as of the Effective Date , OWNER is the record fee title holder of the Property and that all other persons holdine a legal or equitable interest in the Property, if any, shall be bound by this Agreement . 2 . 2 Binding Effect of Agreement . The Property is hereby made subject to this Agreement and the Development is hereby authorized and shall be carried out only in accordance with the terms of this Agreement . 2 . 3 Term. The term of this Agreement shall commence on the Effective -Date and , unless earlier terminated pursuant to the express provisions hereof , shall continue for a period of twelve ( 12 ) years thereafter unless this term is modified or extended pursuant to the provisions of this Agreement . 2 . 4 Assignment . OWNER shall have the right to sell , assign or transfer the Property in whole or in part , to any person, partnership, joint venture, firm or corporation at any time during the term of this Agreement , provided that any such sale, assignment or transfer shall include the pro rata assignment and assumption of those rights, duties and obliga- tions arising under or from this Agreement applicable to the Property or portions thereof being sold , assigned or trans- ferred and shall be made in strict compliance with the following conditions precedent : 6 2 . 4 . 1 No sale , transfer or assignment of any right or interest under this Agreement shall be made unless made togetY.er with the sale, transfer or assignment of all or a part of the Property. 2 . 4 . 2 Within thirty ( 30 ) days after any such sale, transfer or assignment , OWNER shall notify CITY, in writing , of such sale , transfer or assignment and shall provide CITY with an executed assumption agreement ( "Assump- tion Agreement " ) , in a form reasonably acceptable to CITY, by the purchaser , transferee or assignee in which such pur- chaser , transferee or assignee expressly and unconditionally assumes all of the duties and obligations of OWNER under this Agreement . 2 . 4 . E Any sale , transfer or assignment not made in strict compliance with the foregoing conditions shall constitute a default by OWNER under this Agreement . Notwith- standing the failure of any purchaser , transferee or assignee to execute the Assumption Agreement required above, the burdens of this Agreement shall be binding upon such pur- chaser , transferee or assignee but the benefits of this Agreement shall not inure to such purchaser , transferee or assignee until and unless such Assumption Agreement is executed . 2 . 5 Release of Transferring OWNER. The execution of an Assumption Agreement by an assignee , transferee or pur- chaser shall , without any act of or concurrency by CITY, relieve OWNER of its legal duty to perform said obligations under this Agreement . CITY shall not impose any conditions on or otherwise have any rights of approval over any such sale, assignment or transfer . Any and all successors and assigns of OWNER shall have all of the same rights , benefits and obligations of OWNER under this Agreement . It is- understood and agreed by the parties that the Property may be further subdivided after the Effective Date of this Agreement . One or more of such subdivided parcels may be sold, assigned or transferred to persons or entities for development by them in accordance with the provisions of this Agreement . Effective upon such sale, assignment or transfer , the obligations of OWNER and the persons or entities to whom such parcels are sold , assigned or transferred shall become several and not joint . Noncom- pliance by any such persons or entities with the terms and conditions of this Agreement or with applicable CITY rules and regulations shall be deemed a default by such noncomply- ing person or entity with respect to the portion of the Property owned by such noncomplying person or entity, but shall not be deemed to be a default by OWNER hereunder or 7 .r. grounds for termination hereof , or constitute cause for CITY to initiate enforcement action against other persons or entities then owning or holding interest in the Property or any portion thereof and not themselves in default here- under . Upon completion of any phase or tract of the Development as determined by CITY , CITY may release that completed phase or tract from any further obligations under this Agreement . 2 . 6 Termination of Agreement with Respect to Individ- ual Lots upon Sale to Public and Completion of Construc- tion. The provisions of Section 2 . 4 shall not apply to the sale, or lease for a period longer than one ( 1 ) 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 provision of this Agreement to the contrary , this Agreement shall terminate with respect to any lot and such lot shall be released and no longer subject to this Agreement without the execution or recordation of any further document , upon satisfaction of both of the following conditions : 2 . 6 . 1 The lot has been finally subdivided and individually ( and not in bulk ) sold , or leased for a period longer than one ( 1 ) year , to a member of the public or other ultimate user , suhject to --he CFD. 2 . 6 . 2 A certificate of occupancy has been issued for a building on the lot. ARTICLE 3 PUBLIC IMPROVEMENTS 3 . 1 Public Improvements , Facilities and Services . Pursuant to the conditions of approval for the Specific Plan , OWNER will pay for or arrange to pay for its fair share of the financing of the on-site and off-site public improvements facilities and services ( "Public Facilities" ) , as described in Exhibit "D" attached hereto and incorporated herein by this reference . OWNER intends to finance all or a portion of the Public Facilities through the CFD. 3 . 2 Phasing . CWNER shall phase construction of the Public Facilities in the manner and in accordance with the time frames and conditions set forth in the Development Plan. OWNER reserves the right to accelerate construction of the private portion of the Project so long as construction of the Public Facilities associated therewith meets , ar is also accelerated to meet , the community public infrastructure needs relating to the Development in a manner permitted by 8 and in accordance with the CFD. CITY hereby acknowledges that improvement =heduling , dates or times of performance by either party hereto may be subject to revision from time to time due to economic conditions and other causes beyond the control of OWNER. Such scheduling revisions shall be mutually agreed upon in writing and shall be deemed to be within the framework of this Agreement as presently drafted and executed and shall not constitute grounds for termination of this Agreement or amendments to this Agreement requiring new notice and hearings under state law and/or city ordi- nances . 3 . 3 Implementaticn Schedule. The parties recognize that the construction of the Public Facilities is dependent upon many variables . CITY shall use its best efforts to act in conformance with the phased implementation schedules ccntained in Exhibit 'E" , attached hereto and incorporated herein by this reference , or any revised schedules as they reflect the actual cash flow, status of development and other factors - 3 . 4 Procedure for Payment of OWNER' s Share for Public Facilities . rr 3 . 4 . 1 OWNER ' s Fair and Reasonable Share . OWNER ' s fair and reasonable share of fees and costs for the Public Facilities has been estimated for the creation of the CFD. if adjustments to individual lot boundaries are made , this Agreement will. be amended accordingly , apportioning the total fees among the lots as adjusted on a reasonable basis . 3 . 4 . 2 Collection by CITY from Other Property Owners of Fair share . CITY shall collect fees ( like or similar to the tees which are paid by OWNER pursuant to this Agreement ) from other owners of properties deriving benetit from the Public Facilities ( including , without limitation, purchasers or other transferees of improved or unimproved land and finished homes constructed by OWNER) , so that OWNER shall not be placed in an unfair , disadvantageous or non- competitive situation_ 3 . 5 Reservations and Dedications . Except as expressly set forth in this Agreement and the Development Plan, no dedications or reservations of the Property shall be required by CITY of OWNER in connection with -.he Development other than for one school , normal streets, sidewalks or public utility and util_ty access easements customarily required by the CITY . 9 ARTICLE 4 DEVELOPMENT OF THE PROPERTY 4 . 1 Public Eenefits . The CITY, by entering into this Agreement , will receive the benefit of land dedications and the construction and installation of the Public Facilities in accordance with the Development Plan. OWNER ' s obligation to dedicate land and provide such Public Facilities is in consideration of and subject to receipt by OWNER of the benefits of this Agreement . 4 . 2 Vested Right to Develop. Notwithstanding any future action of CITY , whether by ordinance , resolution, initiative or, otherwise , during the term of this Agreement the rules , regulations and official policies applicable to and governing the Development shall be the Existing Land Use Regulations . Subject to the terms of this Agreement, OWNER shall have a vested right to develop the Property in accor- dance with and to the extent of the Development Plan. 4 . 3 Affect of Agreement on Land Use Regulations . Except as otherwise provided under the terms of this Agreement , 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 con- struction . standards and specifications applicable to the Development of the Property shall be the Existing Land Use Regulations. In connection with any Subsequent Development Approval , CITY shall exercise its discretion or take action in accordance with the Development Plan, except as otherwise provided in this Agreement . CITY shall accept for proces- sing, review and action all applications _`or Subsequent Development Approvals and such applications shall proceed in the normal manner for processing such matters . 4 . 4 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 deci- sions 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 Company v . City of Camarillo, 37 Cal . 3d 475 ( 1984 ) , 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 10 appropriate within the exercise of its subjective business judgment . 4 . 5 C'hangas and Amendments . The parties acknowledge that retinPment and further, work on the Development 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 CITY shall process and act on such application in accordance with the Existing Land Use Regulations , except as otherwise provided by thin Agreement including the Reservations of Authority _ If approved , any such change in the Existing development Apprcvals sha- 1 be incorporated herein as an addendum of Exhibit "A" , and may be further changed from time to time as provided in this section . Unless otherwise required by law, as determined in CITY ' 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. 4 . 6 Reservations of Authority. 4 . 6 . 1 Limitations , Reservations and Excep- tions . Notwithstanding any provision of this Agreement to the contrary, CITY may, from time to time , adopt Subsequent Land use Regulations which shall apply to the Development and the property , but only if both of the following apply : (a ) the Subsequent Land Use Regulation is applied ❑n a CITY-wide or community-wide basis; and 11 ( b ) the Subsequent Land Use Regulation is not in conflict with Existing Land Use Regulations or the Development Plan. Any Subsequent Land Use Regulation, whether adopted by initiative or otherwise , limiting the rate or timing of the Development shall be deemed to conflict with the Development Plan. 4 . 6 . 2 Su_hsequent Development Approvals . This Agreement shall not prevent CITY , 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 CITY from denying or condi- tionally approving any Suhsequent Development Approval on the basis of the Existing Land Use Regulations or any Subsequent Land Use Regulation not in conflict with the Development Plan . 4 . 6 . 3 Modification or Suspension by State or Federal Law . In the event that State or Federal laws or regulations , enacted or amended after the Effective Date of this Agreement ( "Subsequent State or Federal Regulations" ) , prevent or preclude compliance with one or more of the provisions of this Agreement , or require changes in plans , maps or permits approved by CITY , then the following shall apply : ( a ) Delivery of Notice of Subsequent State or Federal Regulation . The party first becoming aware of such Subsequent State or Federal Regulation shall, within fifteen ( 15) days thereafter , give the other party written notice of such Subsequent State or Federal Regulation --ogether with a copy thereof and a statement of the provision( s ) of this Agreement with which such Subsequent State or Federal Regulation is in conflict ; - ( b) Negotiation by Parties . The parties shall , within thirty ( 30 ) days of delivery of such notice , meet and confer in good faith in a reasonable attempt to modify this Agreement to comply with the Subsequent State or Federal Regulation; and ( c ) City Council Hearing . Thereafter , regardless of whether the parties reach an agreement on the effect of such Subsequent State or Federal Regulation upon this Agreement , the matter shall be scheduled for hearing before City Council ; ten ( 10 ) days written notice of such hearing shall be given pursuant to California Government Code Section 65854 . 5 and San Jacinto ordinance No. 831 . The City Council , at such hearing , shall determine the exact modification or 12 suspension which is necessary because of the Subsequent State or Federal Regulation . At the hearing, OWNER sha 11 have the right to offer testimony . Any modifi- cation or suspension of this Agreement shall be under- taken only upon the affirmative vote of not less than a majority of the authorized voting members of the City council . Any such suspension or modification shall be subject to judicial review under Section 9 . 9 of this Agreement . ( d ) This Agreement shall remain in full force and effect to the extent it is not inconsistent with such Subsequent State ❑r Federal Regulations and to the extent such Subsequent State or Federal Regulations do not render such remaining provisions impractical to enforce. A . 7 Provision of Real Property Interests._Ijy CITY. In anv instance where OWNER is required to construct any Public Facilities on land not owned by OWNER, CITY shall negotiate the purchase of the necessary easements or other real prop- erty interests to allow OWNER to construct the Public Facilities as required by this Agreement and, if necessary, in accordance with the procedures established by law, use its power of eminent domain to condemn such required easements or other real property interests , provided that OWNER shall pay all legal fees and other costs involved in such condemnation. 4 . 8 Tentative Tract Map Extension. Notwithstanding the provisions of Section 66452 . 6 of the Government Code , any tentative subdivision map or tentative parcel map, heretofore or hereafter approved in connection with the Development , shall be granted an extension of time in accordance with the Existing Land use Regulations . 4 . 9 Vesting Tentative Maps - If any tentative or final subdivision map, -or tentative or final parcel map, heretofore or hereafter approved in connection with the Development of the Property, is a vesting map under the Subdivision Map Act (Government Code Section 66410 , et sec . ) and if this Agreement is determined by a final judgment to be invalid or unenforceable insofar 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 , the Development shall occur only as provided in this Agreement , and the provisions in this Agreement shall be controlling over any conflicting provisions of law or ordinance concern- ing vesting maps . 13 .r, 4 . 10 Moratoriums . If CITY is unable to satisfy itself that CITY is capable of financing required public facilities and thus must declare a limited development moratorium until such time as the financing for such facilities is available , OWNER shall he exempt from any such limited development moratorium, because OWNER, by this Agreement, has secured payment of its fair share of the Public facilities . 4 . 11 Cooperation in Securing Governmental Permits/Con- flicts of Laws . CITY shall cooperate with OWNER in the securing of all permits which may be required by CITY or any other qovernmental agency for the Development pursuant to this Agreement . ARTICLE 5 DEVELOPMENT FEES 5 . 1 Development Fees . In connection with the develop- ment of the Property certain Public Facilities will be constructed pursuant to the conditions of approval of the Specific Plan. CITY acknowledges and agrees that the cost to construct these Public Facilities equals or exceeds the total" _ Development Fees related to the Public Facilities . CITY further agrees to accept the Public Facilities listed below in lieu of any and all Development Fees related thereto . 5 . 1 . 1 Construction of four ( 4 ) eight-phase traffic signals in lieu of all signalization fees . 5 . 1 . 2 Construction of a storm drain system from the intersection of Evans Street and Hewitt Avenue to the Buena vista Detention basin in lieu of all drainage fees. 5 . 1 . 3 Dedication and Construction of a five-acre park located on Esplanade Avenue in accordance with the Specific Plan in -lieu of all park fees . 5 . 1 . 4 All public safety fees will be paid through a yearly assessment adopted by the City Council . Therefore, no other public safety fee will be levied or assessed on the Development or the Property during the term of this Agreement . 5 . 2 No Increases . CITY agrees not to levy any new Development Fees or increase the existing Development Fees specifically on the Development that are not levied on other developments in the CITY. Any new Development Fees or increases must be uniform city-wide so as to not put the OWNER or the Development in a disadvantageous marketing position with other developments in the CITY . 14 ARTICLE 6 MORTGAGEES 6 . 1 Mortcagee Protection. The parties hereto agree that this Agreement shall not prevent or limit OWNER, in any manner , at OWNER ' s sole discretion , from encumbering the Property or any portion thereof or any improvement thereon by any Mortgage securing financing with respect to the Property . CITY 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 . CITY 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 : 6 . 1 . 1 Neither entering into the Agreement nor a breach of this Agreement shall defeat , render invalid, diminish or impair the lien of any Mortgage on the Property ti. made jr, cccd faith and for value, unless otherwise required by law . 6 . 1 . 2 The Mortgagee and its successors and assigns , of any Mortgage encumbering the Property , or any part thereof , which has submitted a request in writing to the CITY in the manner specified herein for giving notices , shall be entitled to receive written notification from CITY ❑f any default by OWNER in the performance of OWNER ' s obligations under this Agreement . 6 . 1 . 3 If CITY timely receives a request from a Mortgagee requesting a copy of any notice of default given to OWNER under the terms of this Agreement , CITY 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 . 6 . 1 . 4 Any Mortgagee who comes into possession of the Property, or any part thereof , pursuant to foreclosure of the Mortgage or deed in lieu of such foreclosure, shall take the Property, or part thereof , subject to the terms of this Agreement . 15 ARTICLE 7 DEFAULT AND REMEDIES 7 . 1 Termination or Modification of Agreement for Default of OWNER . CITY may terminate or modify this Agreement far 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 {here- inafter referred to as "default" ) ; provided, however, CITY may terminate this Agreement pursuant to this Section only after providing a written notice of default to OWNER 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 sixty ( 60 ) days after the effective date of such notice or , in the event that such default cannot be cured within such sixty ( 60 ) day period but can be cured within a longer time , has failed to commence the actions necessary to cure such default within such sixty ( 60 ) day period and to diligently proceed to complete such actions and cure such default . 7 , 2 Termination of Agreement for Default of CITY . OWNER may terminate this Agreement only after the default by CITY in the performance of a material term of this Agreement and written notice of default by OWNER thereof to CITY and, where the default can be cured, the failure of CITY to cure such default within sixty ( 60 ) days after the effective date of such notice or , in the event that such default cannot be cured within such sixty ( 60 ) day period , the failure of CITY to commence to cure such default within such .sixty ( 60 ) day period and to diligently proceed to complete such actions and to cure such default . 7 . 2 Specific Performance . The parties acknowledge that money damages and remedies at law generally are inade- quate and specific performance is a particularly appropriate remedy for the enforcement of this Agreement and should be available to all parties because, due to the size , nature and scope of the Development , it may not be practical or possible to restore the Property to its natural condition once imple- mentation of this Agreement has begun . After such implemen- tation, 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 Development in agreeing to the terms of this Agreement and will be investing even more significant time and resources in implementing the Development in reliance upon the terms of this Agreement, and 16 it is not possible tc determine the sum of money which would adequately compensate OWNER for such efforts . 7 . 4 Failure or Dplay Not a Waiver . Failure or delay in giving notice of breach pursuant to this article shall not be a waiver of any breach. Except as otherwise expressly provided in this Agreement, any failure or delay by the other party in asserting any of its rights or remedies as to any breach shall not operate as a waiver of any breach or of any such rights or remedies or deprive such party of its right to institute and maintain any action which it may deem necessary to protect , assert or enforce any such rights or remedies . 7 . 5 Cooperation in the Event of Legal Challenge. In the event of any legal action instituted by a third party or other governmental entity or official challenging the validity of any provision of this Agreement , the parties hereby agree to cooperate fully with each other in defending said action and the validity of each provision of this Agreement ; however , OWNER shall be liable for all legal expenses and costs in such defense. 7 . 6 Cooperation in the Event of a Partial Default . In the event OWNER assigns this Agreement in connection with a transfer of a part of the Property and a default occurs which adversely impacts the development of that portion of the Property nwned by non-defaulting parties , prior to taking any action to amend or terminate this Agreement, CITY shall conduct a special review which shall be subject to the same notice provisions as provided in Article 8 for periodic reviews . As a part of the special review, the CITY shall describe the nature of the default , identify the defaulting party, and give the non-defaulting parties the right to propose alternatives to amendment or termination of this Agreement _ ARTICLE 8 PERIODIC REVIEW 8 . 1 Periodic Review by CITY . CITY shall , at least once every twelve ( 12 ) months during the term of this Agreement , determine whether OWNER is in good faith substan- tially complying with the terms ❑f this Agreement pursuant to the following provisions : 8 . 1 . 1 Delivery of Reports ; OWNER ' s Right to Be Heard. CITY shall , to the extent practical , deliver to OWNER copies of all staff reports and related exhibits concerning OWNER ' s performance under this Agreement at least thirty ( 30) 17 calendar days prior to any such review or action upon this Agreement by the Planning Commission or City Council . Upon OWNER ' s request , OWNER shall be permitted an opportunity t❑ be heard orally and in writing regarding its performance under this Agreement before any written action is taken by the Planning Commission or City Council under this Agreement . 8 . 1 . 2 OWNER ' s Duty to Demonstrate Good Faith Substantial Compliance. The parties recognize that this Agreement and the documents incorporated herein could be deemed to contain numerous requirements , including, without limitation, construction standards and landscape standards , and that evidence of compliance with each and every such requirement would be a wasteful use of the parties ' resources . Accordingly, OWNER shall be deemed to have satisfied its duty of demonstration when it presents evidence Of its good faith and substantial compliance with (a ) the provisions of the Specific Plan, (b) the CITY ' s Zoning ordinance No . 340 as amended on August 16 , 1988 , by Ordinance No. 846 , ( c) Existing Land Use Regulations concerning the uses , number , types , densities and _ sizes of structures completed , ( d ) required reservations and dedications to CITY , ( e ) the payment by OWNER of its fair share of the cost of the Public Facilities pursuant to this Agreement , and ( f ) comple- y` Lion of the Public Facilities listed in Section 5. 1 , above . Either party may address. any requirement of this Agreement . However , CITY shall deliver thirty ( 30 ) days written notice to OWNER of any requirement it desires to be addressed.. If , at any time of hearing an issue not previously identified in writing is required to be addressed by CITY, the hearing at the request of either party shall be continued to afford sufficient time for analysis and preparation . B . 1 . 3 Substantial Evidence That OWNER Has Not Complied with This Agreement . 1f , as a result of a periodic review, CITY finds, on the basis of substantial evidence , that OWNER has not complied in good faith with items described in Section 8 . 1 . 2 . CITY may terminate or modify this Agreement pursuant to the provisions of Section 7 . 1 . B . 1 . 4 Letter of Cum liance. If OWNER is fond to be in compliance with this Agreement after a periodic review, the CITY shall, upon request by OWNER, at any time after a periodic review, issue a Letter of Compliance to OWNER stating that , after the most recent periodic review and based upon information known by or made known to the CITY: (a ) this Agreement remains in effect ; and ( b) OWNER is not in default . This Letter of Compliance shall contain information necessary to communicate notice of the finding of com- 18 pli.ance . OWNER may record the Letter of Compliance in the official records of the County of Riverside. ARTICLE 9 MISCELLANEOUS 9 . 1 Endorsed Delay and Extension of Times for Perfor- mances . In addition to specific provisions of this Agreement , performance by either party hereunder shall not he deemed to be in default where delays or defaults are demonstrated to be due to acts of God, war , or omissions of other governmental agencies , or other causes beyond the reasonable control of such party. An extension of time in writing for any such cause shall be granted for the period of the enforced delay, or longer as mutually agreed upon , which period shall com- mence to run from the time or cotrunencement of the cause of delay. 9 . 2 Amendment or Cancellation of Agreement . Subject to the provisions of Section 9 . 3 , this Agreement may be amended from time to time by the mutual consent of the parties hereto and only in the same manner as its adoption by an ordinance as set forth in California Government Code sections 65867 , 65867 . 5 and 65868 . The term "Agreement" as used in this Agreement shall include any such amendment properly approved and executed . 9 . Dperating iv oranda . The parties acknowledge that refinement and further development of the Project may require that certain changes , including but not limited to relocation of density and structures within the Property , may be appro- priate and in mutual best interests of the parties . If and when the parties Lind that such changes or adjustments are necessary and/or appropriate , they shall effectuate such changes or adjustments through operating memoranda approved in writing by the parties , which, after execution, shall be attached hereto as addenda and become a part hereof , and may be further changed and amended from time to time as neces- sary, with further concurrence by CITY and OWNER. Unless required by law to maintain the enforceability of this Agreement , no such operating memoranda shall require prior notice nr hearing , or constitute an amendment to this Agreement . To the extent that CITY determines an operating memorandum is limited in its scope and effect to a portion of the Property ( such as the relocation of density or use within a single ownership, which relocation has no external effect on general infrastructure requirements or financing of other property owners ) , consent to such operating memoranda shall be sufficient if provided by CITY and the UWNER or assignee 19 ... of OWNER which owns the affected portion of the Property at the time such operating memorandum is executed . Neither OWNER nor any assignee of OWNER shall be subject to any change in obligations or entitlements pursuant to an operat- ing memorandum which OWNER or such assignee of OWNER has not executed . 9 . 4 Enforcement . Unless amended or cancelled as provided herein, this Agreement shall be enforceable by any party , notwithstanding a change in the San Jacinto General Plan or any master development plan, zoning , subdivision or building regulations adopted by CITY which alters or amends the rules, regulations or policies governing permitted uses of the Property, or the density , design, improvement and construction standards and specifications . 9 . 5 Project Is a Private Undertaking. Except as provided by law, the parties specifically understand and agree that the Project is a private development ; that the CITY has no interest or responsibility for or duty to a third party concerning any improvements until such time and only until such time that CITY, by deed of dedication, accepts the Public pacilities pursuant to the provisions of this Agreement or in connection with the various subdivision map approvals , that OWNER shall have full power over and exclu- sive control of the Property subject only to the limitations and obligations of OWNER under this Agreement and enforcement of this Agreement by CITY . 9 . 6 Hold Harmless. OWNER agrees to and shall hold CITY , its officers , agents , employees and representatives harmless from liability for damages or claims for damages for personal injury , _ncluding death, and claims for property damage which may arise from the direct or indirect operations of OWNER or those of its contractors , subcontractors, agents, employees or other persons acting on its behalf which relate to the Project . - This section applies to all damages and claims for damages suffered or alleged to have been suffered by reason of the operation referred to in this section, regardless of whether CITY has prepared, supplied or approved plans or specifications ( or both) for the Project . 9 . 7 Applicable Law; Attorneys ' Fees . This Agreement shall be construed and enforced in accordance with the laws of the State of California . In any arbitration , quasi- judicial or administrative proceedings or any action in any court of competent jurisdiction , brought by any party to enforce any covenant or any of such party ' s rights or reme- dies under this Agreement , including any action for declara- tory or equitable relief , the prevailing party shall be 132a9025pr 20 entitled to reasonable attorneys ' Lees and all costs , expenses and disbursements in connection with such action, including the costs of reasonable investigation , preparation and professional or expert consultation, which sums may be included in any judyment or decree entered in such action in favor of the prevailing party . 9 . 8 Institution of Legal Action. In addition to any other rights or remedies , either party may institute legal action to ( a ) cure, correct or remedy any default , to enforce any covenants or agreements rerein or to enjoin any threatened or attempted violation thereof , ( b) recover damages for any default , or (c) obtain any other remedies consistent with the purpose of this Agreement . Such legal actions must be instituted in the Superior Court of the County of Riverside , State of California , or in the Federal District Court of the Southern District of California . 9 . 9 Notices. All notices required or provided for under this Agreement shall be in writing and will he deemed to have been duly delivered upon personal delivery or as of the second business day after mailing by United States certified mail , return receipt requested , postage prepaid and addressed as fnllows : If to CITY : CITY OF SAN JACINTO 201 East Main Street San Jacinto, California 92383 Attention : Ross Nammar If to OWNER _ PR EQUITIES, LTD . 1655 E. Sixth Street Suite A4a Corona , California 91719 Attention : Steven R. Peacock A party may change the address by giving notice in writing to the other party and thereafter notices shall be addressed and transmitted to .the new address . 9 . 10 Rules of Construction and Miscellaneous Terms . 9 . 10 . 1 Gender ; Number . The singular includes the plural ; the masculine gender includes the feminine and neuter ; "shall " is mandatory , "may" is permissive. 9 . 10 . 2 Joint and Several Obligation. If a party to this Agreement consists of more than one person or entity, their obligations are joint and several . 132ag025pr 21 This Agreement has been executed by the parties at San Jacinto, California , on the day and year first above written . ^ITY: CITY OF SAN JACINTO, a municipal corporation By : Its : ATTEST- By; J ' �jjy Clerk pWNF.R : PR EQUITIES , LTD. , a California limited partnership By : The Peacock-Radaker Corporation, a California corporation, General Partner By Steven R. Peacock F r e.sl.�en t 9 Y : id L. Cottin n Vice President I hereby approve the form anq legality of the foregoing Agreement this T day of , 1989 . CITY ATTORNEY By: 22 EXHIBITS Exhibit "A" - Existing Development Approvals Exhibit "O" - Property Exhibit "C" - Resolution Approving Specific Plan Exhibit "D" - Public Facilities Exhibit "E" - Phased Implementation Schedules rr- 23 EXHIBIT "A" EXISTING DEVELOPMENT APPROVALS (As of the Effective Date) City Code of the City of San Jacinto; Development and Building Standards of the City of San Jacinto ; Development Plan; Specific Plans 1 -88 and 2-88 , and Conditions of Approval Thereof ; General Plan as amended by City Resolution No. 1772 ; Tentative Tract Maps and Conditions of Approval Thereof ; Final Tract Maps ; Zoning ; Easements ; Condemnations ; City Public works Specifications ; and City Ordinance No. 340 . .Exhibit "A"