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Agenda - Agenda Packets - Regular Meeting 4/24/2003 (2)
REQUEST TO SPEAK CITY COUNCIL AGENDA ITEM #: SUBJECT: 7 DATE: 14 Name: IN FAVOR: ❑ 3M ( 4 NEUTRAL: ❑ IN OPPOSITION: gP Representing: fe� Address: Lg9 lt%r7 City: Telephone No.: 0 gi Individual speakers are limited to three minutes for their presentation. Organized presentations with more than one speaker are limited to 15 minutes, at the discretion of the Mayor and Council. When speaking, be brief, stay on the subject. The Mayor will call you to speak at the appropriate time. Please make your presentation from the microphone. HAND SPEAKER SLIPS TO THE CITY CLERK PRIOR TO THE START OF THE MEETING. REQUEST TO SPEAK CITY COUNCIL AGENDA ITEM #: DATE: Z `f, Z a3 IN FAVOR: ❑ SUBJECT: NEUTRAL: ❑ Name: Z- Representing: ,e/ v Jh VA << LSD C-4 - Address: (lc/ 0_ / ArC IN OPPOSITION: ❑ City: s Telephone No.: g s 8 - s - 34 1-3 Individual speakers are limited to three minutes for their presentation. Organized presentations with more than one speaker are limited to 15 minutes, at the discretion of the Mayor and Council. When speaking, be brief, stay on the subject. The Mayor will call you to speak at the appropriate time. Please make your presentation from the microphone. HAND SPEAKER SLIPS TO THE CITY CLERK PRIOR TO THE START OF THE MEETING. CITY COUNCI DATE: 1, AGENDA ITEM #: REQUEST TO SPEAK r 4, SUBJECT. IN FAVOR: NEUTRAL: CIName: 67-gvr % a rt., d c'i%-. Representing: Address: 4 City: Hcpy, e 84/ I:t/, p(P F7c -;'c/4i 9 IN OPPOSITION: ❑ Telephone No.: 6 5 8 ` 172 Individual speakers are limited to three minutes for their presentation. Organized presentations with more than one speaker are limited to 15 minutes, at the discretion of the Mayor and Council. When speaking, be brief, stay on the subject. The Mayor will call you to speak at the appropriate time. Please make your presentation from the microphone. HAND SPEAKER SLIPS TO THE CITY CLERK PRIOR TO THE START OF THE MEETING. REQUEST TO SPEAK CITY COUNCIL AGENDJA ITEM #: £• Z SUBJECT:`�CJ DATE: ;�f'2 IN FAVOR: Lt//L(' Representing: 1 7kk.. ©4,i /i1 a Name: NEUTRAL: ❑ IN OPPOSITION: ❑ Address: /,3-3 1 41c5-I/,5' ( _ Telephone No.: City: Aleedea--y—logrki Individual speakers are limited to three minutes for their presentation. Organized presentations with more than one speaker are limited to 15 minutes, at the discretion of the Mayor and Council. When speaking, be brief, stay on the subject. The Mayor will call you to speak at the appropriate time. Please make your presentation from the microphone. HAND SPEAKER SLIPS TO THE CITY CLERK PRIOR TO THE START OF THE MEETING. REQUEST TO SPEAK CITY COUNCIL AGENDA ITEM #: 5 1 SUBJECT: I6do DATE: cut 2-4-, a IN FAVOR: jj �rr Name: .bc r\ n w NEUTRAL: ❑ IN OPPOSITION: ❑ Representing: Address: 4 Z9 1G City: 1—C . v4 �CQ Telephone No.: 1 01, O) U% % SS Individual speakers are limited to three minutes for their presentation. Organized presentations with more than one speaker are limited to 15 minutes, at the discretion of the Mayor and Council. When speaking, be brief, stay on the subject. The Mayor will call you to speak at the appropriate time. Please make your presentation from the microphone. HAND SPEAKER SLIPS TO THE CITY CLERK PRIOR TO THE START OF THE MEETING. REQUEST TO SPEAK CITY COUNCIL AGENDA ITEM #: SUBJECT: DATE: IN FAVOR: U . / NEUTRAL: Name: Representing: Address: City: Individual speakers are limited to three minutes for their at the discretion of the MayoPand Coulons ncil with more than one speaker are limited to 15 minutes, When speaking, be brief, stay on the subject. The Mayor will call you to speak at the appropriate time. Please make your presentation from the microphone. HAND SPEAKER SLIPS TO THE CITY CLERK PRIOR TO THE START OF THE MEETING. )e&v IN OPPOSITION: U Y32, Telephone No.: `7 7 REQUEST TO SPEAK CITY COUNCIL AGENDA ITEM #: 4 \ SUBJECT: C OJc% DATE: IN FAVOR: Name: Representing: Address: SPrivs NEUTRAL: ❑ IN OPPOSITION: Cl .6R. City: Telephone No.: 505 6 5 S }-� Individual speakers are limited to three minutes for their presentation. Organized presentations with more than one speaker are limited to 15 minutes, at the discretion of the Mayor and Council. When speaking, be brief, stay on the subject. The Mayor will call you to speak at the appropriate time. Please make your presentation from the microphone. HAND SPEAKER SLIPS TO THE CITY CLERK PRIOR TO THE START OF THE MEETING. REQUEST TO SPEAK CITY COUNCIL AGENDA ITEM #: SUBJECT: DATE: LH 2 Name: IN FAVOR: ❑ hul NEUTRAL: ❑ Representing: fZ Ut-‹ Address: LP--( IN OPPOSITION: ❑ City: %l1Lf h� is Telephone No.:-.1(pb — �3 Individual speakers are limited to three minutes for their presentation. Organized presentations with more than one speaker are limited to 15 minutes, at the discretion of the Mayor and Council. When speaking, be brief, stay on the subject. The Mayor will call you to speak at the appropriate time. Please make your presentation from the microphone. HAND SPEAKER SLIPS TO THE CITY CLERK PRIOR TO THE START OF THE MEETING. REQUEST TO SPEAK CITY COUNCIL GE A ITEM #: SUBJECT: DATE: 1 ��' IN FAVOR: ❑ Name: 1 /t Representing: Address: 1. City: Telephone No.: 5� a-�t '5 976 �,� �� Individual speakers are limited to three their at the discretion o©the MayoPand Counc I with more than one speaker are limited to 15 minutes, When speaking, be brief, stay on the subject. The Mayor will call you to speak at the appropriate time. Please make your presentation from the microphone. HAND SPEAKER SLIPS TO THE CITY CLERK PRIOR TO THE START OF THE MEETING. NEUTRAL: ❑ IN OPPOSITION: ❑ REQUEST TO SPEAK CITY COUNCIL AGENDA ITEM #: ' °"` SUBJECT: 0E0;14/Aar 4- DATE: /f/UL 7,0°y Oort--'° PM41 Name: IN FAVOR: /'fit K6k Representing: °C6bItir Address: 6(( 4 st) 6 City: C.o574- EYA' NEUTRAL: C1 IN OPPOSITION: U eli)r G6voi 5Ui ty(36 Telephone No.: hoi Lit 3 L/1.5� Individual speakers are limited to three minutes for their presentation. Organized presentations with more than one speaker are limited to 15 minutes, at the discretion of the Mayor and Council. When speaking, be brief, stay on the subject. The Mayor will call you to speak at the appropriate time. Please make your presentation from the microphone. HAND SPEAKER SLIPS TO THE CITY CLERK PRIOR TO THE START OF THE MEETING. AGENDA ADJOURNED REGULAR MEETING OF THE SAN JACINTO CITY COUNCIL ADJOURNED SPECIAL MEETING OF THE SAN JACINTO PLANNING COMMISSION AND SPECIAL JOINT MEETING OF THE SAN JACINTO CITY COUNCIL AND PLANNING COMMISSION April 24, 2003 - 7:00 P.M. San Jacinto Unified School District Board Room 2045 South San Jacinto Avenue San Jacinto, California 1.0 ORGANIZATION 1.1 CALL TO ORDER 1.2 FLAG SALUTE 1.3 ROLL CALL NOTICE TO THE PUBLIC All members of the public who wish to speak in favor of, or in opposition to an agenda item, should: 1. Submit a request to speak slip prior to the meeting. 2. Step forward to the lectern upon invitation from the Chairman. 3. State name and spelling of same. 4. Place of residence/business and City. 2.0 ORAL COMMUNICATIONS 2.1 Public Comments 3.0 CONSENT CALENDAR None 4.0 CITY COUNCIL AND PLANNING COMMISSION PUBLIC HEARINGS (CONTINUED FROM APRIL 17, 2003) 4.1 Development Agreement between City of San Jacinto and Cove One Partners LLC 1. Planning Commission Resolution No. / Development Agreement No. 03-01 / A Resolution of the Planning Commission of the City of San Jacinto California recommending City Council approval of a Negative Declaration and a Development Agreement between the City of San Jacinto and Cove One Partners LLC Page 1 Approve and Adopt Resolution No. Development Director / Community 2. City Council Ordinance No. / Development Agreement No. 03-01/ An Ordinance of the City Council of the City of San Jacinto, California approving a Development Agreement between City of San Jacinto and Cove One Partners LLC / Community Development Director Adopt Negative Declaration for Development Agreement Introduce and Approve first reading of Ordinance No. and by further motion approve reading of ordinance by title only: An Ordinance of the City Council of the City of San Jacinto, California approving a Development Agreement between City of San Jacinto and Cove One Partners LLC 5.0 NEW PUBLIC HEARINGS San Jacinto City Council and San Jacinto Planning Commission will hold public hearings to consider amending one existing development agreement and entering into three new development agreements. 5.1 Amendment No. 8 to Development Agreement 1-89, pertaining to the Rancho San Jacinto Specific Plan, located east of Hewitt Street, north of Washington Avenue, south of Evans Street — Tower Development Co., LLC 1. Planning Commission Resolution No. / Development Agreement 1-89/ A Resolution of the Planning Commission of the City of San Jacinto California recommending City Council approval of an amendment to the Development Agreement between the City of San Jacinto and Tower Development Co., LLC Approve and Adopt Resolution No. / Community Development Director City Council Ordinance No. / Development Agreement 1-89 / An Ordinance of the City Council of the City of San Jacinto, California Approving an amendment to the Development Agreement between the City of San Jacinto and Tower Development Co., LLC Introduce and Approve first reading of Ordinance No. and by further motion approve reading of ordinance by title only: An Ordinance of the City Council of the City of San Jacinto, California approving an Page 2 amendment to the Development Agreement between City of San Jacinto and Tower Development Co., LLC 5.2 Development Agreement 03-02, pertaining to Tract 28858, located on Ramona Boulevard at Savory Lane; Tentative Tract 29917, located on the south side of Park Avenue, just east of Hewitt; Tentative Tract 30136, located on the south side of Main Street, just west of the Ramona Expressway; and a 29,000 square foot commercial parcel located on the east side of San Jacinto Street, just south of Esplanade Avenue — Osborne Development Corporation. 1. Planning Commission Resolution No. / Development Agreement 03-02 / A Resolution of the Planning Commission of the City of San Jacinto California recommending City Council approval of a Development Agreement between the City of San Jacinto and Osborne Development Corporation Approve and Adopt Resolution No. / Community Development Director 2. City Council Ordinance No. / Development Agreement 03-02 / An Ordinance of the City Council of the City of San Jacinto, California Approving a Development Agreement between the City of San Jacinto and Osborne Development Corporation Introduce and Approve first reading of Ordinance No. and by further motion approve reading of ordinance by title only: An Ordinance of the City Council of the City of San Jacinto, California approving a Development Agreement between City of San Jacinto and Osborne Development Corporation 5.3 Development Agreement 03-03, pertaining to Tract 29314, located on the southwest corner of Meridian and Washington; Tentative Tract 30644 and Tentative Tract 31035, located on the west side of San Jacinto Street, just south of the Ramona Expressway; and a future residential project on the northwest corner of Main Street and Ramona Expressway — Empire Homes, Inc. 1. Planning Commission Resolution No. / Development Agreement 03-03 / A Resolution of the Planning Commission of the City of San Jacinto California recommending City Council approval of a Development Agreement between the City of San Jacinto and Empire Homes, Inc. Page 3 Approve and Adopt Resolution No. Development Director 2. City Council Ordinance No. / Development Agreement 03-03 / An Ordinance of the City Council of the City of San Jacinto, California Approving a Development Agreement between the City of San Jacinto and Empire Homes, Inc. Introduce and Approve first reading of Ordinance No. and by further motion approve reading of ordinance by title only: An Ordinance of the City Council of the City of San Jacinto, California approving a Development Agreement between City of San Jacinto and Empire Homes, Inc. 5.4 Development Agreement 03-04, pertaining to Tentative Tract 30944, located on the northwest corner of Cottonwood Avenue and Lyon Avenue — Riverside Valley Land Company 1. Planning Commission Resolution No. / Development Agreement 03-04 / A Resolution of the Planning Commission of the City of San Jacinto California recommending City Council approval of Development Agreement between the City of San Jacinto and Riverside Valley Land Company, LLC Approve and Adopt Resolution No. / Community Development Director 2. City Council Ordinance No. / Development Agreement 03-04 / An Ordinance of the City Council of the City of San Jacinto, California Approving a Development Agreement between the City of San Jacinto and Riverside Valley Land Company, LLC Introduce and Approve first reading of Ordinance No. /and by further motion approve reading of ordinance by title only: An Ordinance of the City Council of the City of San Jacinto, California approving a Development Agreement between City of San Jacinto and Riverside Valley Land Company, LLC 6.0 CLOSED SESSION — CITY COUNCIL (CONTINUED FROM APRIL 17, 2003) 6.1 CONFERNECE WITH LABOR NEGOTIATORS Agency designated representatives: Peter Cosentini Page 4 Employee Organization: Police Officers Association 6.2 CONFERNECE WITH LABOR NEGOTIATORS Agency designated representatives: Peter Cosentini Employee Organization: Service Employees International Union 6.3 CONFERNECE WITH LABOR NEGOTIATORS Agency designated representatives: Peter Cosentini Employee Organization: Sergeants Association 6.4 CONFERNECE WITH LABOR NEGOTIATORS Agency designated representatives: Peter Cosentini Employee Organization: Management Association 7.0 ADJOURNMENT I, Tim Hults, do hereby certify that I caused to be posted the foregoing agenda this 18th day of April 2003, as required by law. Tim Hults, Community Development Director Page 5 TO: FROM: SUBJECT: AGENDA ITEM April 24, 2003 Honorable Mayor and Members of the City Council Honorable Chairman and Members of the Planning Commission Tim Hults, Community Development Director Development Agreement No. 03-01, a Development Agreement establishing the responsibilities of the parties and certain financial arrangements related to "The Cove" Specific Plan, a proposal of up to 561 detached single family residences without a school or 491 detached single family residences with a school on 246 acres located at the northwest corner of Warren Road and Cottonwood Avenue. RECOMMENDATION: Staff recommends that the: 1. Planning Commission adopt Resolution PC 03-24 recommending approval of a Development Agreement for "The Cove" Specific Plan; and 2. City Council adopt a Negative Declaration for this project and introduce Ordinance No. approving a Development Agreement for "The Cove" Specific Plan and waive further reading. BACKGROUND: On April 17, 2003 the Planning Commission and City Council conducted a joint public hearing to consider a development agreement for "The Cove" Specific Plan. The Planning Commission and City Council ultimately continued action on the development agreement to this meeting in order to receive clarification on the financial arrangements associated with the project. Staff has provided an analysis of the development impact fees associated with the project and fee credits associated with those fees. Also, Staff has presented two alternatives that were discussed at the meeting. Approvals City Manager: Finance Director: Page 1 of 6 RVPUB\JSB\651190 Although always contemplated to be paid, the previous Staff Report dated April 17, 2003, did not provide a breakdown of the City's development impact fees that will also have to be paid. The previous Staff Report only discussed the Development Agreement fee and the requested credits. In order to clarify the issue and hopefully alleviate some of the confusion about the numbers and the deal points, Staff has provided a breakdown of all the fees associated with the project. The following breakdowns assume two scenarios, the first is the scenario based upon Staff's recommended fees and credits and the second is based upon the Staff compromise fees and credits. 1. City Staff recommended the following fees and credits: Development Agreement Fee ($3,200/Unit) Development Impact Fees (DIF) DIF Credit Warren Road Credit - Impts./Conditions Total 2. Staff Compromise Development Agreement Fee ($1,000/Unit) Development Impact Fees (DIF) DIF Credit Total $1,571,200 $1,251,159.80 [$484,717.84] f$750,0001 $1,587,642/$3,233.69/Unit $491,000 $1,251,159.80 f$384,717.841 $1,357,442/$2,764.65/Unit Attached is the City's Development Impact Fee Schedule with the Staff Recommended and Staff Compromise credits noted. In addition to the financial deal points outlined above, the following issues were also discussed at the Council meeting. 1. Set a maximum cost obligation for Warren Road 2. Include covenants to condition adjacent properties to pay a fair - share recapture fee for signal improvements and Cottonwood/Street "A" improvements Page 2 of 6 RVPUB\JSB\651190 FINDINGS OF FACT 1. The Development Agreement is consistent with the objectives, policies, general land uses and programs specified in the general plan and The Cove Specific Plan because the General Plan Land Use Element Policy No 13 encourages Specific Plans for all large-scale planned developments and the Development Agreement will aid in the implementation of the specific plan. 2. The Development Agreement is compatible with the uses authorized in, and the regulations prescribed for, the land use district in which the real property is located because the Planning Commission found the Specific Plan to be compatible with said regulations and the Development Agreement aids in the implementation of said Specific Plan. The Development Agreement is in conformity with public convenience, general welfare and good land use practice as it provides for the development of infrastructure and public safety facilities per City standards as are necessary to serve said Specific Plan development. 4. The Development Agreement will be beneficial to the health, safety and general welfare as it sets forth mechanisms to provide public improvements, services and public safety facilities. 5. The Development Agreement will not adversely affect the orderly development of property or the preservation of property values as it aids in the implementation of The Cove Specific plan which has been found by the Planning Commission to be consistent with the City's general plan. ATTACHMENTS: Development Impact Fees/Fee Credits Page 3 of 6 RVPUB\JSB\651190 Development Impact Fees/Fee Credits Type Amount Payment Timing Assuming 491 Dwelling Units ("DU")/ 246 Acres Fee Credit Public Buildings $65.00/acre Final Occupancy Issuance $15,990 None (1)(2) Regional Transportation $820.00/acre Final Occupancy Issuance $201,720 None (1)(2) Local Transportation $500.00/acre Final Occupancy Issuance $123,000 $100,000 (1) None (2) Flood Control Improvements Area 1 Area 2 $5,990/acre $4,975/acre Final Occupancy Issuance N/A None (1)(2) Traffic Signalization SF Units MF Units Subdivision Commercial $150.00/DU $100.00/DU $2,700/acre $2,700/acre Final Occupancy Issuance $73,650.00 $36,825 (1)(2) Carpool Mitigation $90.00/DU Final Occupancy Issuance $44,190 None (1)(2) Water Capital Improvement Residential Commercial $2,930/DU Same as EMWD Final Occupancy Issuance N/A None (1)(2) City Sewer Fee Residential Commercial $200.00/DU $200.00/ 15 PFU Final Occupancy Issuance $98,200 None (1)(2) Public Safety Structures Residential Commercial $50.00/DU $0.01/sf of lot area Final Occupancy Issuance $24,550 None (1)(2) Public Safety Equipment Residential Commercial $10.00/DU $0.01/sf of lot area Final Occupancy Issuance $4,910 None (1)(2) Park Fee SF Detached SF Attached 2-4 Units 5+ Units Mobilehomes $525.24/DU $314.46/DU $460.62/DU $402.48/DU $290.52/DU Final Occupancy Issuance $257,892.84 $257,892.84 (1)(2) Page 4 of 6 RVPUBUSB \651190 Undergrounding Fee $50.00/lineal foot (street frontage) N/A Installed by OWNER Installed by OWNER None (1)(2) Street Trees $250.00/tree N/A Installed by OWNER Installed by OWNER None (1)(2) Building Permit Surcharge 1% of Total Permit Fee (minimum of $1.00, maximum of $50.00) Final Occupancy Issuance $24,550 Max. None (1)(2) Fire Station Mitigation Fee Residential Commercial/Industrial $577.00/DU $527.00 (Rancho San Jacinto) $0.34/sf of building area Final Occupancy Issuance $283,307 Fair Market Value of 2 acre dedicated Fire Station site, up to $90,000 (1)(2) Current Planning Residential Commercial $50.00/DU $0.02/sf of building area Final Occupancy Issuance $24,550 None (1)(2) Advanced Planning Residential Commercial $150.00/DU $0.06/sf of building area Final Occupancy Issuance $73,650 None (1)(2) Lighting, Landscaping and Maintenance District $1.00/linear foot (street frontage) Payable at time of recordation of final map $1,000 None (1)(2) Fire Hydrant Paint and Blue Dot $200.00 minimum, up to four $50.00 for each additional Optional Installed per CDF and EMWD standards None (1)(2) Fire Sprinklers $160.00 + $0.50/head Final Occupancy Issuance N/A N/A Water Meters 3/i , , 1" 1-3/4" 2" $400.00 each $500.00 each $750.00 each $1,000.00 each Payable at Request N/A N/A Page 5 of 6 RVPUBUSB\651190 Total. $1,251,159.80 $484,717.84 (1) $384,717.84 (2) (1) Staff Recommended Credits (2) Staff Compromise Credits • .Figures are provided based on current Development Impact Fee amounts, assume 491 dwelling units and 246 acres, and thus are subject to change in accordance with the express tennis of the Development Agreement. Page 6 of 6 RVPUB\JSB\651190 AGENDA ITEM April 24, 2003 TO: The Honorable Mayor and Members of the City Council FROM: Bernie Simon'Finance Director SUBJECT: Capital Improvement Loan from County of Riverside RECOMMENDATION: Adopt Resolution to accept $1 Million Capital Improvement Loan from the County of Riverside. BACKGROUND: The County desires to grant a $1 Million Capital Improvement Loan for the purpose of assisting the City with the funding of public projects. The loan would be available to the City at zero percent interest with a term of five years. The City may use these funds for certain projects as identified on the Five Year Capital Improvement Project Plan or the City may use such funds for any other Capital Projects that the City Council may desire. The Mayor has identified Main Street as a potential project for which $1 Million could be used to augment the current scope of the project to include repaving of the entire east side of Main Street to the Ramona Expressway. Other potential projects could be Sanderson Avenue or Kirby Avenue. The City needs to make a decision and adopt a resolution no later than this week, due to County budgetary reviews next week. Staff recommends that such loan may be repaid from sources such as future Measure A Revenue and future CDBG funds. Page 1 of 2 JUSTIFICATION: Loan funds could accelerate the period in which needed Capital Projects could be completed. BUDGETARY IMPACT: No immediate budgetary impact. Certain future funds received would be allocated for repayment of loan. ATTACHMENTS: List of Five Year Capital Improvement Plan 2003-2007 Resolution No. Page 2 of 2 RIVERSIDE COUNTY TRANSPORTATION COMMISSION MEASURE 'A' LOCAL FUNDS PROGRAM FY 2003 — 2007 Agency: City of San Jacinto Prepared by: Habib Motlagh, City Engineer Phone #: (909) 487-7342 Date: April 30, 2002 East Main Street (San Jacinto Ave. to Jordan Avenue) Ramona Boulevard (State Street to Sanderson Avenue) West Main Street (San Jacinto Ave. to Seventh Street) Kirby Avenue (Cottonwood Ave. to Esplanade Avenue) Miscellaneous Traffic Control Devices and Traffic Studies Page 1/2 Miscellaneous Pavement Repairs throughout the City Community College Dr. (State to Eagle Dr.) Miscellaneous Sidewalk Projects (First, Sixth & Seventh Streets) Sanderson Avenue Pavement Rehabilitation — Ph. II Pavement Rehabilitation Pavement Rehabilitation Pavement Rehabilitation Pavement Rehabilitation Curb, gutter, and drainage repairs Sidewalk Installation & ADA Ramps Pavement Rehabilitation STATE OF CALIFORNIA) COUNTY OF RIVERSIDE)ss CITY OF SAN JACINTO ) RESOLUTION NO. A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SAN JACINTO, CALIFORNIA, TO ACCEPT CAPITAL IMPROVEMENT LOAN FROM THE COUNTY OF RIVERSIDE WHEREAS, the City of San Jacinto is in need of funding for Capital Improvement projects such as East Main Street Revitalization, Sanderson Avenue, Kirby Avenue and other projects included in, but not limited to, the Five Year Capital Improvement Plan filed with RCTC, and WHEREAS, the City of San Jacinto has an opportunity to receive a $1 Million non interest bearing loan from the County of Riverside for the purpose of public improvements in the City of San Jacinto, and WHEREAS, it is in the public interest to accept a Capital Improvement Loan from the County of Riverside to accelerate public projects, and WHEREAS, the City shall repay said loan from the County of Riverside within a period not to exceed five years from the date of such loan, and WHEREAS, the City would repay said loan from future Measure A Transportation Funds, CDBG Funds or any other City or Redevelopment funds available and unencumbered. NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of San Jacinto as follows: Section 1. The City shall accept a non interest bearing Capital Improvement Loan from the County of Riverside. Section 2. The City shall repay said loan on or before five years from the date of funding. Section 3. The City shall use loan proceeds only for Capital Improvements such as roads or other infrastructure. APPROVED AND ADOPTED this 24th day of April, 2003 Ayes: Page 1 of 2 ATTEST: Dorothy L. Chouinard, City Clerk City of San Jacinto bxJim Ayres, Mayor Page 2ufo AGENDA ITEM 5- I April 24, 2003 TO: Honorable Mayor and Members of the City Council Honorable Chairman and Members of the Planning Commission FROM: Tim Hults, Community Development Director SUBJECT: Amendment No. 8 to Development Agreement 1-89, pertaining to the Rancho San Jacinto Specific Plan RECOMMENDATION: Staff recommends that the: 1. Planning Commission adopt Resolution PC 03- recommending approval of Amendment No. 8 to Development Agreement 1-89; and 2. City Council introduce Ordinance No. approving Amendment No. 8 to Development Agreement 1-89. BACKGROUND: On February 20, 2003, the City Council conducted a public hearing and ultimately approved Amendment No. 7 to Development Agreement 1-89. The action effectively acknowledged that the required improvements for the specific plan were completed, provided new indemnification provisions into the Development Agreement, added a 24-acre site located at Villines and Esplanade to the Development Agreement and extended the term of the Development Agreement by 7 years to February 14, 2010. The request before you today is add a provision to exempt the Ranch San Jacinto Specific Plan from the Transportation Uniform Mitigation Fee (TUMF) and the MSHCP. As the development agreement is presently worded, any increases in development impact fees that applicable to other developments in the City shall be assessed to those developments in Rancho San Jacinto. As such, Tower Development is requesting a modification of this provision. Approvals City Manager: Finance Director: Page 1 of 3 Staff is supportive of the request due to the long history of the project. However, to be consistent with other similar development agreements in the process, Staff recommends that a development agreement fee be assessed. The development agreement fee being recommended for the other projects is $3,200 per dwelling unit. There are approximately 1,017 units left to be built in Rancho San Jacinto, which could result in the overall payment of $3,254,400 in development agreement fees. An additional provision being recommended for other projects is that they be annexed to a Community Facilities District (CFD) for public safety services. The same provision is also being recommended in this case for consistency reasons and because the public safety component of CFD #2 was eliminated. Furthermore, Staff is recommending that the existing City fee structure be implemented with this agreement, locked in for five years as required by the City Development Agreement guidelines. ENVIRONMENTAL ANALYSIS: The amendment of this Development Agreement is exempt from further review under the California Environmental Quality Act because, pursuant to Title 14 of the California Code of Regulations section 15378, subdivision (a), the amendment of this Agreement does not have the potential for resulting in either a direct physical change in the environment, or a reasonably foreseeable indirect change in the environment because it does not attempt to affect the physical development of property. FINDINGS OF FACT: 1. The amendment to the Development Agreement is consistent with the objectives, policies, general land uses and programs specified in the general plan and any specific plan because the development agreement provides for financial considerations that will ensure adequate services are provided, pursuant to the policies of the General Plan that provide for the exploration of new funding sources and that the costs for new public facilities and services shall be borne by the new users rather than by the existing community. 2. The Development Agreement is compatible with the uses authorized in, and the regulations prescribed for, the land use district in which the real property is located because as it provides a financing tool for the provision of public services that are necessary to serve the future development of the site, pursuant to the policies of the General Plan that provide for the exploration of new funding sources and that the costs for new public facilities and services shall be borne by the new users rather than by the existing community. Page 2 of 3 3. The Development Agreement is in conformity with public convenience, general welfare and good land use practice as it provides for as it provides a financing tool for the provision of public services that are necessary to serve the future development of the site, pursuant to the policies of the General Plan that provide for the exploration of new funding sources and that the costs for new public facilities and services shall be borne by the new users rather than by the existing community. 4. The Development Agreement will be beneficial to the health, safety and general welfare as it sets forth a funding mechanism to provide for adequate public services to serve the future development of the site, pursuant to the policies of the General Plan that provide for the usage of new funding sources and that the costs for new public facilities and services shall be borne by the new users rather than by the existing community. 5. The Development Agreement will not adversely affect the orderly development of property or the preservation of property values as it aids in the implementation of the City's General Plan and Zoning Ordinance through the financing of public facilities and services, as it provides the funds needed to cover the costs for new public facilities and services shall be borne by the new users rather than by the existing community. ATTACHMENTS: Planning Commission Resolution City Council Ordinance Development Agreement Page 3 of 3 RESOLUTION NO. PC A RESOLUTION OF THE PLANNING COMMISSION OF THE CITY OF SAN JACINTO, CALIFORNIA, RECOMMENDING APPROVAL OF AMENDMENT 8 TO THE DEVELOPMENT AGREEMENT BETWEEN THE CITY OF SAN JACINTO AND TOWER INVESTMENTS WHEREAS, CITY 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, CITY and PR Equities, Ltd. ("Developer") entered into that certain Development Agreement dated September 19, 1989 and effective as of October 19, 1989 and amended on September 1, 1992 (the "Development Agreement"), on file with the City Clerk and incorporated by reference herein; and WHEREAS, OWNER is now the legal or equitable owner of the real property ("Property") subject to the Development Agreement, has assumed all of the duties and obligations of the Developer under the Development Agreement and is therefore the successor in interest under the Development Agreement; and WHEREAS, OWNER has requested CITY to enter into an amendment ("Amendment") amending the Development Agreement pursuant to Section 9.2 thereof in order to exempt the Development from TUMF and MSHCP Fees, defined below, while subjecting the Development to any and all other Development Fees, as defined in the Development Agreement WHEREAS, proceedings have been taken in accordance with the rules and regulations of CITY in order to so amend the Development Agreement; and WHEREAS, by electing to enter into this Amendment, CITY shall bind future City Councils of CITY by the obligations specified herein and limit the future exercise of certain governmental and proprietary powers of CITY; and WHEREAS, the terms and conditions of this Amendment have undergone extensive review by CITY and the City Council and have been found to be fair, just and reasonable; and WHEREAS, the best interests of the citizens of the City of San Jacinto and the public health, safety and welfare will be served by entering into this Amendment; and RVPUBUSB\651 187 WHEREAS, all of the procedures of the California Environmental Quality Act have been met with respect to the Amendment pursuant to a determination by the CITY that the approval of this Amendment is exempt from further review under the California Environmental Quality Act because, pursuant to Title 14 of the California Code of Regulations section 15378, subdivision (a), the approval of this Amendment does not have the potential for resulting in either a direct physical change in the environment, or a reasonably foreseeable indirect change in the environment because it does not attempt to affect the physical development of property; and WHEREAS, all of the procedures of the California Environmental Quality Act have been met with respect to the Amendment pursuant to a determination by the CITY that the approval of this Amendment is exempt from further review under the California Environmental Quality Act because, pursuant to Title 14 of the California Code of Regulations section 15378, subdivision (b)(4), the approval of this Amendment is not a project because it is merely the creation of government funding mechanisms or other governmental fiscal activity; and WHEREAS, this Amendment is exempt from further review under the California Environmental Quality Act because, pursuant to Title 14 of the California Code of Regulations section 15273, CEQA does not require further environmental review because this Amendment constitutes the establishment, modification, structuring or restructuring of charges by the City that the City Council hereby finds are necessary for the purpose of meeting police, fire and road maintenance operating expenses and obtaining funds necessary for capital projects in order to maintain service within existing service areas of the City; and WHEREAS, in connection with the conclusion reached above concerning Title 14 of the California Code of Regulations section 15273, the City Council finds that, based on recent meetings, including a recent joint Planning Commission and City Council meeting, the City requires additional funding in order to meet fire and police public safety and road maintenance needs within, among other areas, the Property; and WHEREAS, the physical effects, if any, of the Development have been separately analyzed pursuant to CEQA in connection with the approval of the Development Agreement that is being amended hereby and therefore, this Amendment is exempt from further review under CEQA; and WHEREAS, this Amendment and the Development are consistent with the San Jacinto Comprehensive General Plan and the Rancho San Jacinto Specific Plan; and WHEREAS, all actions taken and approvals given by CITY have been duly taken or approved in accordance with all applicable legal requirements for notice, public hearings, findings, votes, and other procedural matters; and RVPUDUSB\651187 WHEREAS, development of the Property in accordance with this Amendment will provide substantial benefits to CITY and will further important policies and goals of CITY; and WHEREAS, this Amendment 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, and generally serve the purposes for which development agreements under Section 65864, et seq. of the Government Code are intended; and WHEREAS, OWNER has incurred and will in the future incur substantial costs in order to assure development of the Property in accordance with this Amendment; and 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 Amendment. NOW, THEREFORE, THE PLANNING COMMISSION OF THE CITY OF SAN JACINTO RESOLVES AS FOLLOWS: SECTION 1. Based on the entire record before the Commission, all written and oral evidence presented to the Commission, and the findings set forth in this Resolution, the Commission recommends that the City Council of the City of San Jacinto approve the Amendment No. 8 ("Amendment") to the Development Agreement ("Development Agreement") as set forth in Exhibit "A" and incorporated by reference herein, based upon the following findings: A. The Amendment is consistent with the objectives, policies, general land uses and programs specified in the general plan and any specific plan because the development agreement provides for financial considerations that will ensure adequate services are provided, pursuant to the policies of the General Plan that provide for the exploration of new funding sources and that the costs for new public facilities and services shall be borne by the new users rather than by the existing community. B. The Amendment is compatible with the uses authorized in, and the regulations prescribed for, the land use district in which the real property is located because as it provides a financing tool for the provision of public services that are necessary to serve the future development of the site, pursuant to the policies of the General Plan that provide for the exploration of new funding sources and that the costs for new public facilities and services shall be borne by the new users rather than by the existing community. RVPUBUSB\65l 187 C. The Amendment is in conformity with public convenience, general welfare and good land use practice as it provides for as it provides a financing tool for the provision of public services that are necessary to serve the future development of the site, pursuant to the policies of the General Plan that provide for the exploration of new funding sources and that the costs for new public facilities and services shall be borne by the new users rather than by the existing community. D. The Amendment will be beneficial to the health, safety and general welfare as it sets forth a funding mechanism to provide for adequate public services to serve the future development of the site, pursuant to the policies of the General Plan that provide for the usage of new funding sources and that the costs for new public facilities and services shall be borne by the new users rather than by the existing community. E. The Amendment will not adversely affect the orderly development of property or the preservation of property values as it aids in the implementation of the City's General Plan and Zoning Ordinance through the financing of public facilities and services, as it provides the funds needed to cover the costs for new public facilities and services shall be borne by the new users rather than by the existing community. SECTION 2. Based on the entire record before the Commission and all written and oral evidence presented to the Commission, the Commission finds the Amendment complies with the California Environmental Quality Act for the following reasons: A. Pursuant to a determination by the CITY that the approval of this Amendment is exempt from further review under the California Environmental Quality Act because, pursuant to Title 14 of the California Code of Regulations section 15378, subdivision (a), the approval of this Amendment does not have the potential for resulting in either a direct physical change in the environment, or a reasonably foreseeable indirect change in the environment because it does not attempt to affect the physical development of property. B. Pursuant to a determination by the CITY that the approval of this Amendment is exempt from further review under the California Environmental Quality Act because, pursuant to Title 14 of the California Code of Regulations section 15378, subdivision (b)(4), the approval of this Amendment is not a project because it is merely the creation of government funding mechanisms or other governmental fiscal activity. C. Pursuant to Title 14 of the California Code of Regulations section 15273, CEQA does not require further environmental review because this Amendment constitutes the establishment, modification, structuring or restructuring of charges by the City that the City Council hereby finds are necessary for the RVPUBVISB\651187 purpose of meeting police, fire and road maintenance operating expenses and obtaining funds necessary for capital projects in order to maintain service within existing service areas of the City. D. Based on recent meetings, including a recent joint Planning Commission and City Council meeting, the City requires additional funding in order to meet fire and police public safety and road maintenance needs within, among other areas, the Property. E. The physical effects, if any, of the Project have been or will be separately analyzed pursuant to CEQA and therefore, this Amendment is exempt from further review under CEQA. Therefore, the Planning Commission recommends that the City Council determine that the Amendment is exempt from CEQA and direct staff to file a Notice of Exemption upon adoption of the ordinance approving the Amendment. SECTION 3. The location and custodian of the documents and any other material which constitute the record of proceedings upon which the Planning Commission based its decision is as follows: Community Development Director, City of San Jacinto Planning Department, 248 E. Main Street, San Jacinto, CA 92583. (909) 487-7330. PASSED, APPROVED AND ADOPTED THIS TH DAY OF APRIL, 2003. Planning Commission Chairperson ATTEST: Planning Commission Secretary RVPUBUSB\651187 STATE OF CALIFORNIA ) COUNTY OF RIVERSIDE)ss CITY OF SAN JACINTO ) ORDINANCE NO. AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF SAN JACINTO, CALIFORNIA APPROVING AMENDMENT 8 TO THE DEVELOPMENT AGREEMENT BETWEEN THE CITY OF SAN JACINTO AND TOWER INVESTMENTS WHEREAS, CITY 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, CITY and PR Equities, Ltd. ("Developer") entered into that certain Development Agreement dated September 19, 1989 and effective as of October 19, 1989 and amended on September 1, 1992 (the "Development Agreement"), on file with the City Clerk and incorporated by reference herein; and WHEREAS, OWNER is now the legal or equitable owner of the real property ("Property") subject to the Development Agreement, has assumed all of the duties and obligations of the Developer under the Development Agreement and is therefore the successor in interest under the Development Agreement; and WHEREAS, OWNER has requested CITY to enter into an amendment ("Amendment") amending the Development Agreement pursuant to Section 9.2 thereof in order to exempt the Development from TUMF and MSHCP Fees, defined below, while subjecting the Development to any and all other Development Fees, as defined in the Development Agreement WHEREAS, proceedings have been taken in accordance with the rules and regulations of CITY in order to so amend the Development Agreement; and WHEREAS, by electing to enter into this Amendment, CITY shall bind future City Councils of CITY by the obligations specified herein and limit the future exercise of certain governmental and proprietary powers of CITY; and WHEREAS, the terms and conditions of this Amendment have undergone extensive review by CITY and the City Council and have been found to be fair, just and reasonable; and WHEREAS, the best interests of the citizens of the City of San Jacinto and the public health, safety and welfare will be served by entering into this Amendment; and WHEREAS, all of the procedures of the California Environmental Quality Act have been met with respect to the Amendment pursuant to a determination by the CITY that the approval of this Amendment is exempt from further review under the California Environmental Quality Act because, pursuant to Title 14 of RVPUBVSB\651185 the California Code of Regulations section 15378, subdivision (a), the approval of this Amendment does not have the potential for resulting in either a direct physical change in the environment, or a reasonably foreseeable indirect change in the environment because it does not attempt to affect the physical development of property; and WHEREAS, all of the procedures of the California Environmental Quality Act have been met with respect to the Amendment pursuant to a determination by the CITY that the approval of this Amendment is exempt from further review under the California Environmental Quality Act because, pursuant to Title 14 of the California Code of Regulations section 15378, subdivision (b)(4), the approval of this Amendment is not a project because it is merely the creation of government funding mechanisms or other governmental fiscal activity; and WHEREAS, this Amendment is exempt from further review under the California Environmental Quality Act because, pursuant to Title 14 of the California Code of Regulations section 15273, CEQA does not require further environmental review because this Amendment constitutes the establishment, modification, structuring or restructuring of charges by the City that the City Council hereby finds are necessary for the purpose of meeting police, fire and road maintenance operating expenses and obtaining funds necessary for capital projects in order to maintain service within existing service areas of the City; and WHEREAS, in connection with the conclusion reached above concerning Title 14 of the California Code of Regulations section 15273, the City Council finds that, based on recent meetings, including a recent joint Planning Commission and City Council meeting, the City requires additional funding in order to meet fire and police public safety and road maintenance needs within, among other areas, the Property; and WHEREAS, the physical effects, if any, of the Development have been separately analyzed pursuant to CEQA in connection with the approval of the Development Agreement that is being amended hereby and therefore, this Amendment is exempt from further review under CEQA; and WHEREAS, this Amendment and the Development are consistent with the San Jacinto Comprehensive General Plan and the Rancho San Jacinto Specific Plan; and WHEREAS, all actions taken and approvals given by CITY 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 Amendment will provide substantial benefits to CITY and will further important policies and goals of CITY; and RVPUB\JSB\651185 WHEREAS, this Amendment 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, and generally serve the purposes for which development agreements under Section 65864, et seq. of the Government Code are intended; and WHEREAS, OWNER has incurred and will in the future incur substantial costs in order to assure development of the Property in accordance with this Amendment; and 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 Amendment. THE CITY COUNCIL OF THE CITY OF SAN JACINTO DOES ORDAIN AS FOLLOWS: Section 1. On April 24, 2003, the Planning Commission conducted a joint public hearing with the City Council and recommended approval of a proposed amendment ("Amendment") to the Development Agreement, as shown on Exhibit "A" attached hereto and incorporated by reference herein. Section 2. At said joint public hearing, the City Council found that: A. The Amendment is consistent with the objectives, policies, general land uses and programs specified in the general plan and any specific plan because the development agreement provides for financial considerations that will ensure adequate services are provided, pursuant to the policies of the General Plan that provide for the exploration of new funding sources and that the costs for new public facilities and services shall be borne by the new users rather than by the existing community. B. The Amendment is compatible with the uses authorized in, and the regulations prescribed for, the land use district in which the real property is located because as it provides a financing tool for the provision of public services that are necessary to serve the future development of the site, pursuant to the policies of the General Plan that provide for the exploration of new funding sources and that the costs for new public facilities and services shall be borne by the new users rather than by the existing community. C. The Amendment is in conformity with public convenience, general welfare and good land use practice as it provides for as it provides a financing tool for the provision of public services that are necessary to serve the future development of the site, pursuant to the RVPUBUSB\651185 policies of the General Plan that provide for the exploration of new funding sources and that the costs for new public facilities and services shall be borne by the new users rather than by the existing community. D. The Amendment will be beneficial to the health, safety and general welfare as it sets forth a funding mechanism to provide for adequate public services to serve the future development of the site, pursuant to the policies of the General Plan that provide for the usage of new funding sources and that the costs for new public facilities and services shall be borne by the new users rather than by the existing community. E. The Amendment will not adversely affect the orderly development of property or the preservation of property values as it aids in the implementation of the City's General Plan and Zoning Ordinance through the financing of public facilities and services, as it provides the funds needed to cover the costs for new public facilities and services shall be borne by the new users rather than by the existing community. Section 3. Based on the findings contained in this Ordinance, the City Council hereby adopts the Amendment attached hereto as Exhibit "A" and incorporated by reference herein. Section 4. Section 5. This Ordinance shall take effect 30 days after its final passage. The City Council hereby finds that the adoption of the Amendment will not have a significant effect on the environment for the following reasons: A. Pursuant to a determination by the CITY that the approval of this Amendment is exempt from further review under the California Environmental Quality Act because, pursuant to Title 14 of the California Code of Regulations section 15378, subdivision (a), the approval of this Agreement does not have the potential for resulting in either a direct physical change in the environment, or a reasonably foreseeable indirect change in the environment because it does not attempt to affect the physical development of property. B. Pursuant to a determination by the CITY that the approval of this Amendment is exempt from further review under the California Environmental Quality Act because, pursuant to Title 14 of the California Code of Regulations section 15378, subdivision (b)(4), the approval of this Agreement is not a project because it is merely the creation of government funding mechanisms or other governmental fiscal activity. RVPUBUSB\651185 C. Pursuant to Title 14 of the California Code of Regulations section 15273, CEQA does not require further environmental review because this Agreement constitutes the establishment, modification, structuring or restructuring of charges by the City that the City Council hereby finds are necessary for the purpose of meeting police, fire and road maintenance operating expenses and obtaining funds necessary for capital projects in order to maintain service within existing service areas of the City. D. Based on recent meetings, including a recent joint Planning Commission and City Council meeting, the City requires additional funding in order to meet fire and police public safety and road maintenance needs within, among other areas, the Property. E. The physical effects, if any, of the Development have been separately analyzed pursuant to CEQA in connection with the approval of the Development Agreement that is being amended hereby and therefore, this Amendment is exempt from further review under CEQA. Therefore, staff is directed to file a Notice of Exemption upon adoption of this Ordinance. Section 6: The City Clerk shall certify the adoption of this ordinance and cause the same to be published in he County of Riverside, State of California. Introduced at a regular meeting of the City Council on the Hi day of April, 2003 by the following vote: AYES: NAYS: ABSENT: ABSTAIN: City of San Jacinto by Jim Ayres, Mayor ATTEST: Dorothy L. Chouinard, City Clerk RVPUBlJSB\651185 Recorded at request of: Clerk, City Council City of San Jacinto When recorded return to: City of San Jacinto 201 East Main Street San Jacinto, CA 92583 Attention: City Clerk Section 6103 ) ) ) ) ) ) ) ) ) ) Exempt from Filing Fees, Government Code AGREEMENT AMENDING DEVELOPMENT AGREEMENT NO. 1-89 A DEVELOPMENT AGREEMENT BETWEEN CITY OF SAN JACINTO and TOWER DEVELOPMENT CO., LLC RVPUBUSB\651318 AGREEMENT AMENDING DEVELOPMENT AGREEMENT NO. 1-89 This Agreement Amending Development Agreement No. 1-89 (hereinafter "Agreement") is entered into as of this day of , 2003 by and between the City of San Jacinto, California (hereinafter "CITY"), and Tower Development Co., LLC, a California limited liability company (hereinafter "OWNER"): RECITALS WHEREAS, CITY 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, CITY and PR Equities, Ltd. ("Developer") entered into that certain Development Agreement dated September 19, 1989 and effective as of October 19, 1989 and amended on September 1, 1992 (the "Development Agreement"), on file with the City Clerk and incorporated by reference herein; and WHEREAS, OWNER is now the legal or equitable owner of the real property ("Property") subject to the Development Agreement, has assumed all of the duties and obligations of the Developer under the Development Agreement and is therefore the successor in interest under the Development Agreement; and WHEREAS, OWNER has requested CITY to amend the Development Agreement pursuant to Section 9.2 thereof in order to exempt the Development from TUMF and MSHCP Fees, defined below, while subjecting the Development to any and all other Development Fees, as defined in the Development Agreement WHEREAS, proceedings have been taken in accordance with the rules and regulations of CITY in order to so amend the Development Agreement; and WHEREAS, by electing to enter into this Agreement, CITY shall bind future City Councils of CITY by the obligations specified herein and limit the future exercise of certain governmental and proprietary powers of CITY; and WHEREAS, the terms and conditions of this Agreement have undergone extensive review by CITY and the City Council and have been found to be fair, just and reasonable; and WHEREAS, the best interests of the citizens of the City of San Jacinto 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 Agreement pursuant to a determination by the CITY that the approval of this Development Agreement is exempt from further review under the California RVPUBUSB\651318 -1- Environmental Quality Act because, pursuant to Title 14 of the California Code of Regulations section 15378, subdivision (a), the approval of this Agreement does not have the potential for resulting in either a direct physical change in the environment, or a reasonably foreseeable indirect change in the environment because it does not attempt to affect the physical development of property; and WHEREAS, all of the procedures of the California Environmental Quality Act have been met with respect to the Agreement pursuant to a determination by the CITY that the approval of this Development Agreement is exempt from further review under the California Environmental Quality Act because, pursuant to Title 14 of the California Code of Regulations section 15378, subdivision (b)(4), the approval of this Agreement is not a project because it is merely the creation of government funding mechanisms or other governmental fiscal activity; and WHEREAS, this Development Agreement is exempt from further review under the California Environmental Quality Act because, pursuant to Title 14 of the California Code of Regulations section 15273, CEQA does not require further environmental review because this Agreement constitutes the establishment, modification, structuring or restructuring of charges by the City that the City Council hereby finds are necessary for the purpose of meeting police, fire and road maintenance operating expenses and obtaining funds necessary for capital projects in order to maintain service within existing service areas of the City; and WHEREAS, in connection with the conclusion reached above concerning Title 14 of the California Code of Regulations section 15273, the City Council finds that, based on recent meetings, including a recent joint Planning Commission and City Council meeting, the City requires additional funding in order to meet fire and police public safety and road maintenance needs within, among other areas, the Property; and WHEREAS, the physical effects, if any, of the Development have been or will be separately analyzed pursuant to CEQA and therefore, this Agreement is exempt from further review under CEQA; and WHEREAS, this Agreement and the Development are consistent with the San Jacinto Comprehensive General Plan and the Rancho San Jacinto Specific Plan; and WHEREAS, all actions taken and approvals given by CITY 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 CITY and will further important policies and goals of CITY; and RVPUBUSB\651318 -2- 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, and generally serve the purposes for which development agreements under Section 65864, et seq. of the Government Code are intended; and WHEREAS, OWNER has incurred and will in the future incur substantial costs in order to assure development of the Property in accordance with this Agreement; and 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. 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: SECTION 1: This Agreement shall be effective immediately upon the effective date of the ordinance approving this Agreement ("Effective Date"). SECTION 2: Upon the Effective Date of this Agreement, the Development Agreement shall be deemed amended in accordance with terms expressed herein. Except to the extent expressly amended hereby, the Development Agreement shall remain in full force and effect. All capitalized terms not otherwise defined herein shall have the meanings ascribed to them in the Development Agreement. SECTION 3: Article 5 of the Development Agreement is hereby amended in its entirety to read as follows: "ARTICLE 5 DEVELOPMENT FEES. 5.1 Amount and Components of Fee. Except as provided in Section 5.5 hereof, the Development Fees currently charged by CITY, or as subsequently adopted, amended or otherwise altered, shall be charged to the Development at the rate in effect at of the time of payment as set forth in Existing Land Use Regulations. 5.2 Time of Payment. Except as otherwise specifically provided for in this Agreement, in accordance with Section 202 of the Development Agreement Policies all Development Fees shall be paid to CITY in accordance with the applicable time frames set forth in Existing Land Use Reg ulations. RVPUBUSB\651318 -3- 5.3 Fee Credits. In accordance with Section 202 of the Development Agreement Policies, OWNER shall not be entitled under this Agreement to any credits against the Development Fees required pursuant to this Article 5 for the dedication of land, the construction of improvements or the payment of fees. 5.4 Future Fees. Except as expressly provided in Section 5.5 hereof, CITY hereby agrees that the Development shall be subject to any Development Fee that CITY may enact, amend, alter, adopt, or impose before or after the Effective Date. 5.5 TUMF Fee and MSHCP Fee. Notwithstanding any provision herein to the contrary, the Development shall not be subject to the CITY's Transportation Uniform Mitigation Fee ("TUMF") or, if adopted, the Multi - Species Habitat Conservation Plan Fee ("MSHCP Fee"). Nothing contained in this Section 5.5 shall be construed as affecting OWNER's obligation to pay all other Development Fees, whether existing as of the Effective Date or adopted, amended or otherwise altered thereafter. 5.6 Expiration of Development Fee Limitation Period. In accordance with Section 202 of the Development Agreement Policies, upon and after expiration of the Development Fee Limitation Period, the full amount of Development Fees, including, without limitation, any TUMF Fee and/or MSHCP Fee, shall be required to be paid for the Development in accordance with Land Use Regulations then in effect for those portions of the Development for which the applicable Development Fee has not already been paid. For purposes of this Agreement, the term "Development Impact Fee Limitation Period" means the period that commences on the Effective Date and expires on the date that is five (5) years following the Effective Date. 5.7 Residential Traffic Mitigation Fee. In consideration for the benefits provided in this Agreement and in addition to any other Development Fees required by this Article 5, OWNER shall, in accordance with the time frame set forth in the Land Use Regulations, pay to the CITY a residential traffic mitigation fee in the total amount of Three Thousand Two Hundred Dollars ($3,200) per residential dwelling unit. Nothing contained in this Agreement shall be construed as reducing or otherwise limiting OWNER's obligation to pay any and all other Development Fees imposed by the CITY. RVPUBUSB\651318 -4- 5.8 Services CFD. CITY will cooperate with OWNER in the formation of one or more community facilities districts (individually a "CFD") for the purpose of financing CITY's provision of certain public services to the Development. It is the intent of the parties that any such community facilities district will levy a special tax on the Property in an amount not to exceed that amount that the City Council determines is necessary to provide public safety fire and police services and road maintenance services within such CFD. Such CFD shall include, at a minimum, an automatic two percent (2%) increase over the special tax for immediately preceding fiscal year in the Special Tax used to fund such CFD, to the extent permitted under applicable law. Notwithstanding the foregoing, it is acknowledged and agreed by the parties that nothing contained in this Section 5.8 shall be construed as requiring CITY or the City Council to act as the lead agency in the formation of any such community facilities districts or to issue and sell bonds. Notwithstanding the foregoing, it is acknowledged and agreed by the parties that nothing contained in this Agreement shall be construed as relieving OWNER from paying all Development Fees required under Existing Land Use Regulations, as amended pursuant to this Agreement, including, without limitation, all public safety structures and equipment fees. 5.9 Non -Development Lots. To the extent other owners of projects with tentative maps already approved by CITY or with tentative maps currently being processed by CITY have not included or have not agreed to include such projects in the Services CFD, OWNER shall use its reasonable best efforts to cause such owners of such projects to agree to their projects in the Services CFD; provided, however, that special assessment to be levied on such projects under the Services CFD shall not exceed the amount paid by property owners within the Development. 5.10 Adopted City Policies. In accordance with Section 201(g) of the Development Agreement Policies, any formation of any community facilities district or annexation of property into an existing community facilities district, or through another similar financing mechanism conducted pursuant to this Agreement shall be conducted in accordance with and shall not deviate from adopted CITY policies regarding the same in effect at the time." SECTION 7: Section 9.9 of the Development Agreement is hereby amended in its entirety to read as follows: "9.9 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. RVPUB\JSB\651318 -5- (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 CITY: City of San Jacinto 201 East Main Street San Jacinto, CA 92583 Attn: City Manager Telephone: (909) 487-7342 Facsimile: (909) 654-3728 Copy to: Best, Best & Krieger, LLP 3750 University Ave. Riverside, CA 92501 Attn: City Attorney Telephone: (909) 686-1450 Facsimile: (909) 686-3083 If to OWNER: Tower Development Co., LLC P.O. Box 1200 Woodland, CA 95776 (c) Either party may, by notice given at any time, require subsequent notices to be given to another person or 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." SECTION 8: The introductory paragraph of Section 4.6.3 of the Development Agreement is hereby amended in its entirety to read as follows: "4.6.3 Modification or Suspension by State or Federal Law. In the event that State, County 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, including any County law or regulation that prohibits or, in the CITY's reasonable discretion, materially RVPUB\JSB\651318 -6- affect the CITY's authority to limit the imposition of the MSHCP Fee in accordance with Section 5.5 hereof, then the following shall apply:" SECTION 9: Section 9.11 of the Development Agreement is hereby added to read as follows: "9.11 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." SECTION 10: Section 9.12 of the Development Agreement is hereby added to read as follows: "9.12 Authority to Execute. The person or persons executing this Agreement on behalf of OWNER warrants and represents that he or she/they have the authority to execute this Agreement on behalf of his or her/their corporation, partnership or business entity and warrants and represents that he or she/they has/have the authority to bind OWNER to the performance of its obligations hereunder." IN WITNESS WHEREOF, the parties hereto have executed this Development Agreement on the last day and year set forth below. RVPUBUSB\651318 -7- OWNER TOWER DEVELOPMENET CO., a California limited liability company By: Its: Dated: CITY CITY OF SAN JACINTO By: Name: Title: Dated: [Signature Page to Amendment to Development Agreement No. 1-89] RVPUBUSB\651318 -8- EXHIBIT "A" (Development Fees) Type Amount Payment Timing Public Buildings $65.00/acre Final Occupancy Issuance Regional Transportation $820.00/acre Final Occupancy Issuance Local Transportation $500.00/acre Final Occupancy Issuance Flood Control Improvements Area 1 Area 2 $5,990/acre $4,975/acre Final Occupancy Issuance Traffic Signalization SF Units MF Units Subdivision Commercial $150.00/DU $100.00/DU $2,700/acre $2,700/acre Final Occupancy Issuance Carpool Mitigation $90.00/DU Final Occupancy Issuance Water Capital Improvement Residential Commercial $2,930/DU Same as EMWD Final Occupancy Issuance City Sewer Fee Residential Commercial $200.00/DU $200.00/ 15 PFU Final Occupancy Issuance Public Safety Structures Residential Commercial $50.00/DU $0.01/sf of lot area Final Occupancy Issuance Public Safety Equipment Residential Commercial $10.00/DU $0.01/sf of lot area Final Occupancy Issuance Park Fee SF Detached SF Attached 2-4 Units 5+ Units Mobilehomes $525.24/DU $314.46/DU $460.62/DU $402.48/DU $290.52/DU Final Occupancy Issuance Undergrounding Fee $50.00/1ineal foot (street frontage) N/A Installed by OWNER Street Trees $250.00/tree N/A Installed by OWNER Building Permit Surcharge 1% of Total Permit Fee (minimum of $1.00, Final Occupancy Issuance RVPUB\JSB\651318 Exhibit A maximum of $50.00) Fire Station Mitigation Fee Residential Commercial/Industrial $577.00/DU $527.00 (Rancho San Jacinto) $0.34/sf of building area Final Occupancy Issuance Current Planning Residential Commercial $50.00/DU $0.02/sf of building area Final Occupancy Issuance Advanced Planning Residential Commercial $150.00/DU $0.06/sf of building area Final Occupancy Issuance Lighting, Landscaping and Maintenance District $1.00/1inear foot (street frontage) Payable at time of recordation of final map Fire Hydrant Paint and Blue Dot $200.00 minimum, up to four $50.00 for each additional Optional Fire Sprinklers $160.00 + $0.50/head Final Occupancy Issuance Water Meters 1" 1-3/4" 2" $400.00 each $500.00 each $750.00 each $1,000.00 each Payable at Request RVPUB\JSB\651318 Exhibit A RVPUBUSB \65 13 18 Exhibit E TO: FROM: SUBJECT: AGENDA ITEM 5.2 April 24, 2003 Honorable Mayor and Members of the City Council Honorable Chairman and Members of the Planning Commission Tim Hults, Community Development Director Development Agreement No. 03-02, a Development Agreement by and between the City of San Jacinto and Osborne Development establishing certain financial arrangements for the following developments; Tract 28858 - located on Ramona Boulevard at Savory Lane; Tentative Tract 29917 — located on the south side of Park Avenue, just east of Hewitt; Tentative Tract 30136 — located on the south side of Main Street, just west of the Ramona Expressway; and a 29,000 square foot commercial parcel located on the east side of San Jacinto Street, just south of Esplanade Avenue RECOMMENDATION: Staff recommends that the: 1. Planning Commission adopt Resolution PC 03- recommending approval of a Development Agreement 03-02; and 2. City Council introduce Ordinance No. approving Development Agreement 03-02. BACKGROUND: The processing and implementation of development agreements is authorized by California Government Code Section 65864 through 65869.5. In addition, on July 18, 2002, the City Council adopted rules and regulations concerning the processing of development agreements. The rules and regulations prescribe what may be included in a development agreement, a process for consideration (public hearings before the Planning Commission and City Council), the findings to be made to approve the agreement, the process required to amend the agreement, and a periodic review procedure. Approvals City Manager: Finance Director: Page 1 of 4 ENVIRONMENTAL ANALYSIS: The approval of this Development Agreement is exempt from further review under the California Environmental Quality Act because, pursuant to Title 14 of the California Code of Regulations section 15378, subdivision (a), the approval of this Agreement does not have the potential for resulting in either a direct physical change in the environment, or a reasonably foreseeable indirect change in the environment because it does not attempt to affect the physical development of property. DISCUSSION: The proposed development agreement would cover and pertain to each of the projects noted above. The following is a description of each of the projects; Tract 28858 is located on Ramona Boulevard at Savory Lane. This development includes a total of 86 lots, 21 of which were developed by Howard Roberts Development. Osborne Development has acquired the remaining 65 unimproved and vacant lots. Tentative Tract 29917 is located on the south side of Park Avenue, just east of Hewitt Street. The project proposes 135 single family residential lots. Tentative Tract 30136 is located on the south side of Main Street, just west of the Ramona Expressway. This project would generate 143 single family residential lots. This project has yet to be considered and approved by the Planning Commission. The last of the sites to be included and covered by this agreement is a 29,000 square foot commercial parcel located on the east side of San Jacinto Street, just south of Esplanade Avenue. The piece is triangular is shape, is immediately adjacent to the Metropolitan Theaters and could accommodate approximately 20,000 square feet of office area. This project has also yet to be approved. The development agreement only defines the basic financial terms of each project. The agreement does not lock in any development rights, standards or existing City fees for the individual projects. The agreement merely exempts the projects from the payment of the TUMF. If the Council elects to enter into the development agreement, future Councils will be bound by the terms and provisions of this agreement for 10 years. Page 2 of 4 In exchange for exempting the projects from the future regional fee, the project proponent has agreed to pay $3,200 per dwelling unit and $15,000 for the commercial piece. If the Council authorizes protection for the approved, unapproved and unsubmitted projects, the projects would generate Development Agreement fees in the amount $1,112,600. If the Council opts not to cover the unapproved/unsubmitted projects, the remaining approved lots (200) would generate Development Agreement fees in the amount of $640,000. Whether or not to include the unapproved projects is a policy decision by the Council, as State Law and the City's Development Agreement guidelines are silent with regard to this issue. Furthermore, the project proponent has agreed to cooperate in the formation of a community facilities districts "CFD") for the purpose of financing the provision of certain public services to the Project. The public services may include fire and police services and road maintenance services within such CFD. FINDINGS OF FACT 1 The Development Agreement is consistent with the objectives, policies, general land uses and programs specified in the general plan and any specific plan because the development agreement provides for financial considerations that will ensure adequate services are provided, pursuant to the policies of the General Plan that provide for the exploration of new funding sources and that the costs for new public facilities and services shall be borne by the new users rather than by the existing community. 2. The Development Agreement is compatible with the uses authorized in, and the regulations prescribed for, the land use district in which the real property is located because as it provides a financing tool for the provision of public services that are necessary to serve the future development of the site, pursuant to the policies of the General Plan that provide for the exploration of new funding sources and that the costs for new public facilities and services shall be borne by the new users rather than by the existing community. 3. The Development Agreement is in conformity with public convenience, general welfare and good land use practice as it provides for as it provides a financing tool for the provision of public services that are necessary to serve the future development of the site, pursuant to the policies of the General Plan that provide for the exploration of new funding sources and that the costs for new public facilities and services shall be borne by the new users rather than by the existing community. Page 3 of 4 4. The Development Agreement will be beneficial to the health, safety and general welfare as it sets forth a funding mechanism to provide for adequate public services to serve the future development of the site, pursuant to the policies of the General Plan that provide for the usage of new funding sources and that the costs for new public facilities and services shall be borne by the new users rather than by the existing community. 5. The Development Agreement will not adversely affect the orderly development of property or the preservation of property values as it aids in the implementation of the City's General Plan and Zoning Ordinance through the financing of public facilities and services, as it provides the funds needed to cover the costs for new public facilities and services shall be borne by the new users rather than by the existing community. ATTACHMENTS: Planning Commission Resolution City Council Ordinance Development Agreement Page 4 of 4 RESOLUTION NO. PC A RESOLUTION OF THE PLANNING COMMISSION OF THE CITY OF SAN JACINTO, CALIFORNIA, RECOMMENDING APPROVAL OF A DEVELOPMENT AGREEMENT BETWEEN THE CITY OF SAN JACINTO AND OSBORNE DEVELOPMENT CORPORATION WHEREAS, Resolution No. 2358 of the City Council of the City of San Jacinto provides for the consideration of development agreements as permitted by Government Code Sections 65864 through 65869.5 inclusive; and WHEREAS, Osborne Development Corporation ("Owner") has submitted an application for a development agreement ("Application") for consideration regarding the development of certain real property in which the Owner has a legal or equitable interest, which development agreement is attached hereto as Exhibit "A" and incorporated by reference herein ("Development Agreement"); and WHEREAS, the Application was viewed, studied, and found to comply with the California Environmental Quality Act ("CEQA") as more fully described below; and WHEREAS, on April 24, 2003, the Planning Commission of the City of San Jacinto ("Commission") conducted a duly noticed public hearing on the Application at which time all persons wishing to testify in connection with the Application were heard and the Application was comprehensively reviewed; and WHEREAS, all other legal prerequisites to the adoption of this Resolution have occurred. NOW, THEREFORE, THE PLANNING COMMISSION OF THE CITY OF SAN JACINTO RESOLVES AS FOLLOWS: SECTION 1. Based on the entire record before the Commission, all written and oral evidence presented to the Commission, and the findings set forth in this Resolution, the Commission recommends that the City Council of the City of San Jacinto approve the Development Agreement as set forth in Exhibit "A" and incorporated by reference herein, based upon the following findings: A. The Development Agreement is consistent with the objectives, policies, general land uses and programs specified in the general plan and any specific plan because the development agreement provides for financial considerations that will ensure adequate services are provided, pursuant to the policies of the General Plan that provide for the exploration of new funding sources and that the costs for new public facilities and services shall be borne by the new users rather than by the existing community. RVPUBUSB1651187 B. The Development Agreement is compatible with the uses authorized in, and the regulations prescribed for, the land use district in which the real property is located because as it provides a financing tool for the provision of public services that are necessary to serve the future development of the site, pursuant to the policies of the General Plan that provide for the exploration of new funding sources and that the costs for new public facilities and services shall be borne by the new users rather than by the existing community. C. The Development Agreement is in conformity with public convenience, general welfare and good land use practice as it provides for as it provides a financing tool for the provision of public services that are necessary to serve the future development of the site, pursuant to the policies of the General Plan that provide for the exploration of new funding sources and that the costs for new public facilities and services shall be borne by the new users rather than by the existing community. D. The Development Agreement will be beneficial to the health, safety and general welfare as it sets forth a funding mechanism to provide for adequate public services to serve the future development of the site, pursuant to the policies of the General Plan that provide for the usage of new funding sources and that the costs for new public facilities and services shall be borne by the new users rather than by the existing community. E. The Development Agreement will not adversely affect the orderly development of property or the preservation of property values as it aids in the implementation of the City's General Plan and Zoning Ordinance through the financing of public facilities and services, as it provides the funds needed to cover the costs for new public facilities and services shall be borne by the new users rather than by the existing community. SECTION 2. Based on the entire record before the Commission and all written and oral evidence presented to the Commission, the Commission finds the Development Agreement complies with the California Environmental Quality Act for the following reasons: A. Pursuant to a determination by the CITY that the approval of this Development Agreement is exempt from further review under the California Environmental Quality Act because, pursuant to Title 14 of the California Code of Regulations section 15378, subdivision (a), the approval of this Agreement does not have the potential for resulting in either a direct physical change in the environment, or a reasonably foreseeable indirect change in the environment because it does not attempt to affect the physical development of property. RVPUBUSB\651187 B. Pursuant to a determination by the CITY that the approval of this Development Agreement is exempt from further review under the California Environmental Quality Act because, pursuant to Title 14 of the California Code of Regulations section 15378, subdivision (b)(4), the approval of this Agreement is not a project because it is merely the creation of government funding mechanisms or other governmental fiscal activity. C. Pursuant to Title 14 of the California Code of Regulations section 15273, CEQA does not require further environmental review because this Agreement constitutes the establishment, modification, structuring or restructuring of charges by the City that the City Council hereby finds are necessary for the purpose of meeting police, fire and road maintenance operating expenses and obtaining funds necessary for capital projects in order to maintain service within existing service areas of the City. D. Based on recent meetings, including a recent joint Planning Commission and City Council meeting, the City requires additional funding in order to meet fire and police public safety and road maintenance needs within, among other areas, the Property. E. The physical effects, if any, of the Project have been or will be separately analyzed pursuant to CEQA and therefore, this Agreement is exempt from further review under CEQA. Therefore, the Planning Commission recommends that the City Council determine that the Development Agreement is exempt from CEQA and direct staff to file a Notice of Exemption upon adoption of the ordinance approving the Development Agreement. SECTION 3. The location and custodian of the documents and any other material which constitute the record of proceedings upon which the Planning Commission based its decision is as follows: Community Development Director, City of San Jacinto Planning Department, 248 E. Main Street, San Jacinto, CA 92583. (909) 487-7330. PASSED, APPROVED AND ADOPTED THIS 24TH DAY OF APRIL, 2003. Planning Commission Chairperson ATTEST: Planning Commission Secretary RVPUBVSB\651187 STATE OF CALIFORNIA ) COUNTY OF RIVERSIDE)ss CITY OF SAN JACINTO ) ORDINANCE NO. AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF SAN JACINTO, CALIFORNIA APPROVING A DEVELOPMENT AGREEMENT BETWEEN THE CITY OF SAN JACINTO AND OSBORNE DEVELOPMENT CORPORATION THE CITY COUNCIL OF THE CITY OF SAN JACINTO DOES ORDAIN AS FOLLOWS: Section 1. On April 24, 2003, the Planning Commission conducted a joint public hearing with the City Council and recommended approval of a proposed Development Agreement, as shown on Exhibit "A" attached hereto and incorporated by reference herein. Section 2. At said joint public hearing, the City Council found that: A. The Development Agreement is consistent with the objectives, policies, general land uses and programs specified in the general plan and any specific plan because the development agreement provides for financial considerations that will ensure adequate services are provided, pursuant to the policies of the General Plan that provide for the exploration of new funding sources and that the costs for new public facilities and services shall be borne by the new users rather than by the existing community. B. The Development Agreement is compatible with the uses authorized in, and the regulations prescribed for, the land use district in which the real property is located because as it provides a financing tool for the provision of public services that are necessary to serve the future development of the site, pursuant to the policies of the General Plan that provide for the exploration of new funding sources and that the costs for new public facilities and services shall be borne by the new users rather than by the existing community. C. The Development Agreement is in conformity with public convenience, general welfare and good land use practice as it provides for as it provides a financing tool for the provision of public services that are necessary to serve the future development of the site, pursuant to the policies of the General Plan that provide for the exploration of new funding sources and that the costs for new public facilities and services shall be borne by the new users rather than by the existing community. RVPUB\JSB\651185 D. The Development Agreement will be beneficial to the health, safety and general welfare as it sets forth a funding mechanism to provide for adequate public services to serve the future development of the site, pursuant to the policies of the General Plan that provide for the usage of new funding sources and that the costs for new public facilities and services shall be borne by the new users rather than by the existing community. E. The Development Agreement will not adversely affect the orderly development of property or the preservation of property values as it aids in the implementation of the City's General Plan and Zoning Ordinance through the financing of public facilities and services, as it provides the funds needed to cover the costs for new public facilities and services shall be borne by the new users rather than by the existing community. Section 3. Based on the findings contained in this Ordinance, the City Council hereby adopts the Development Agreement attached hereto as Exhibit "A" and incorporated by reference herein. Section 4. This Ordinance shall take effect 30 days after its final passage, except as noted below. This Ordinance and the Development Agreement affected thereby shall not become effective unless and until the City of San Jacinto has received full reimbursement from Applicant for all costs and fess associated with the negotiation, drafting and execution of the Development Agreement. Section 5. The City Council hereby finds that the adoption of the Development Agreement will not have a significant effect on the environment for the following reasons: A. Pursuant to a determination by the CITY that the approval of this Development Agreement is exempt from further review under the California Environmental Quality Act because, pursuant to Title 14 of the California Code of Regulations section 15378, subdivision (a), the approval of this Agreement does not have the potential for resulting in either a direct physical change in the environment, or a reasonably foreseeable indirect change in the environment because it does not attempt to affect the physical development of property. B. Pursuant to a determination by the CITY that the approval of this Development Agreement is exempt from further review under the California Environmental Quality Act because, pursuant to Title 14 of the California Code of Regulations section 15378, subdivision (b)(4), the approval of this Agreement is not a project because it is merely the creation of government funding mechanisms or other governmental fiscal activity. RVPUB \JSB \651185 C. Pursuant to Title 14 of the California Code of Regulations section 15273, CEQA does not require further environmental review because this Agreement constitutes the establishment, modification, structuring or restructuring of charges by the City that the City Council hereby finds are necessary for the purpose of meeting police, fire and road maintenance operating expenses and obtaining funds necessary for capital projects in order to maintain service within existing service areas of the City. D. Based on recent meetings, including a recent joint Planning Commission and City Council meeting, the City requires additional funding in order to meet fire and police public safety and road maintenance needs within, among other areas, the Property. E. The physical effects, if any, of the Project have been or will be separately analyzed pursuant to CEQA and therefore, this Agreement is exempt from further review under CEQA. Therefore, staff is directed to file a Notice of Exemption upon adoption of this Ordinance. Section 6: The City Clerk shall certify the adoption of this ordinance and cause the same to be published in he County of Riverside, State of California. Introduced at a regular meeting of the City Council on the 24th day of April, 2003 by the following vote: AYES: NAYS: ABSENT: ABSTAIN: City of San Jacinto by Jim Ayres, Mayor ATTEST: Dorothy L. Chouinard, City Clerk RVPUBUSB\651185 Recorded at request of: ) Clerk, City Council ) City of San Jacinto ) ) When recorded return to: ) City of San Jacinto ) 201 East Main Street ) San Jacinto, CA 92583 ) Attention: City Clerk ) ) Exempt from Filing Fees, Government Code Section 6103 DEVELOPMENT AGREEMENT NO. A DEVELOPMENT AGREEMENT BETWEEN CITY OF SAN JACINTO and OSBORNE DEVELOPMENT CORPORATION R.VPUB\JSB\651318 DEVELOPMENT AGREEMENT NO. This Development Agreement (hereinafter "Agreement") is entered into as of this day of , 2003 by and between the City of San Jacinto, California (hereinafter "CITY"), and Osborne Development Corporation, a California corporation (hereinafter "OWNER"): RECITALS WHEREAS, CITY 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, OWNER has requested CITY to enter into a development agreement and proceedings have been taken in accordance with the rules and regulations of CITY; and WHEREAS, by electing to enter into this Agreement, CITY shall bind future City Councils of CITY by the obligations specified herein and limit the future exercise of certain governmental and proprietary powers of CITY; and WHEREAS, the terms and conditions of this Agreement have undergone extensive review by CITY and the City Council and have been found to be fair, just and reasonable; and WHEREAS, the best interests of the citizens of the City of San Jacinto 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 Agreement pursuant to a determination by the CITY that the approval of this Development Agreement is exempt from further review under the California Environmental Quality Act because, pursuant to Title 14 of the California Code of Regulations section 15378, subdivision (a), the approval of this Agreement does not have the potential for resulting in either a direct physical change in the environment, or a reasonably foreseeable indirect change in the environment because it does not attempt to affect the physical development of property; and WHEREAS, all of the procedures of the California Environmental Quality Act have been met with respect to the Agreement pursuant to a determination by the CITY that the approval of this Development Agreement is exempt from further review under the California Environmental Quality Act because, pursuant to Title 14 of the California Code of Regulations section 15378, subdivision (b)(4), the approval of this Agreement is not a project because it is merely the creation of government funding mechanisms or other governmental fiscal activity; and WHEREAS, this Development Agreement is exempt from further review under the California Environmental Quality Act because, pursuant to Title 14 of the California Code of Regulations section 15273, CEQA does not require further environmental review because this Agreement constitutes the establishment, modification, structuring or restructuring of charges by the RVPUBVSB\651318 -1- City that the City Council hereby finds are necessary for the purpose of meeting police, fire and road maintenance operating expenses and obtaining funds necessary for capital projects in order to maintain service within existing service areas of the City; and WHEREAS, in connection with the conclusion reached above concerning Title 14 of the California Code of Regulations section 15273, the City Council finds that, based on recent meetings, including a recent joint Planning Commission and City Council meeting, the City requires additional funding in order to meet fire and police public safety and road maintenance needs within, among other areas, the Property; and WHEREAS, the physical effects, if any, of the Project have been or will be separately analyzed pursuant to CEQA and therefore, this Agreement is exempt from further review under CEQA; and WHEREAS, this Agreement and the Project are consistent with the San Jacinto Comprehensive General Plan and any Specific Plan applicable thereto; and WHEREAS, all actions taken and approvals given by CITY 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 CITY and will further important policies and goals of CITY; 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 Section 65864, et seq. of the Government Code are intended; and WHEREAS, OWNER has incurred and will in the future incur substantial costs in order to assure development of the Property in accordance with this Agreement; and 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. 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 adequacy of which are hereby acknowledged, the parties agree as follows: RVPUBUSB\651318 -2- DEFINITIONS AND EXHIBITS. 1.1 follows: California. commences. Definitions. The following terms when used in this Agreement shall be defined as 1.1.1 "Agreement" means this Development Agreement. 1.1.2 "CITY" means the City of San Jacinto, a political subdivision of the State of 1.1.3 "City Council" means the duly elected city council of the City of San Jacinto. 1.1.4 "Commencement Date" means the date the Term of this Agreement 1.1.5 "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 1.1.6 "Development Agreement Policies" means those certain development agreement policies approved by CITY pursuant to Resolution No. 2358, adopted on July 18, 2002. 1.1.7 "Development Approvals" means all permits and other entitlements for use subject to approval or issuance by CITY 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. 1.1.8 "Development Exaction" means any requirement of CITY 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 to lessen, offset, mitigate or compensate for the impacts of development on the environment or other public interests. RVPUBUSB\651318 -3- 1.1.9 "Development Impact Fee" a monetary exaction other than a tax or special assessment, whether established for a broad class of projects by legislation of general applicability or imposed on a specific project on an ad hoc basis, that is charged by a local agency to the applicant in connection with approval of a development project for the purpose of defraying all or a portion of the cost of public facilities related to the development project, but does not include fees specified in Government Code Section 66477, fees for processing applications for governmental regulatory actions or approvals, fees collected under development agreements adopted pursuant to Article 2.5 of the Government Code (commencing with Section 65864) of Chapter 4, or fees collected pursuant to agreements with redevelopment agencies which provide for the redevelopment of property in furtherance or for the benefit of a redevelopment project for which a redevelopment plan has been adopted pursuant to the Community Redevelopment Law (Part 1 (commencing with Section 33000) of Division 24 of the Health and Safety Code). The term "Development Impact Fee" expressly includes any impact, public facilities or impact fee as set forth in Section 202 of the Development Agreement Policies. 1.1.10 "Development Plan" means the plan for development of the Property as set forth in Exhibit C. 1.1.11 "Development Impact Fee Limitation Period" means the period that commences on the Effective Date and expires on the date that is five (5) years following the Effective Date. 1.1.12 "Effective Date" means the date the ordinance approving and authorizing this Agreement becomes effective. 1.1.13 "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, 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 CITY 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 that provide for the use of or the entry upon public property; RVPUB\JSB\651318 (e) the exercise of the power of eminent domain. -4- 1.1.14 "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. 1.1.15 [intentionally left blank.] 1.1.16 "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. 1.1.17 "Project" means the development of the Property contemplated by the Development Plan as such Plan may be further defined, enhanced or modified pursuant to the provisions of this Agreement. 1.1.18 "Property" means the real property described on Exhibit "A" and shown on Exhibit "B" to this Agreement. 1.1.19 "Reservation of Rights" means the rights and authority excepted from the assurances and rights provided to OWNER under this Agreement and reserved to CITY under Section 3.6 of this Agreement. 1.1.20 [intentionally left blank.] 1.1.21 fintentionally left blank.1 1.2 Exhibits. The following documents are attached to, and by this reference made apart of, this Agreement: Exhibit "A" -- Legal Description of the Property. Exhibit "B" -- Map showing Property and its location. Exhibit "C" -- Development Plan. Exhibit "D" [intentionally left blank.] Exhibit "E" — Development Impact Fees. 2. GENERAL PROVISIONS. 2.1 Binding Effect of Agreement. The Property is hereby made subject to this Agreement. Development of the Property is hereby authorized and shall be carried out in accordance with the terms of the Development Plan and this Agreement. 2.2 Ownership of Property. OWNER represents and covenants that it is the owner of the fee simple title to, or has an equitable interest in, the Property or a portion thereof RVPUBUSB\651318 -5- 2.3 Term. The initial term of this Agreement shall commence on the date (the "Commencement Date") that is the earlier of: (i) the date CITY approves the first tentative tract map for the Project; or (ii) the Effective Date, and shall continue for a period often (10) years thereafter unless this term is modified or extended pursuant to the provisions of this Agreement. Notwithstanding the foregoing, the term of this Development Agreement may be extended for and additional five (5) years following expiration of the initial term, provided the following have occurred: (a) OWNER provides at least one hundred eighty (180) days written notice to CITY prior to the expiration of the initial term; (b) OWNER shall have obtained building permits for at least sixty-seven percent (67%) of the units contemplated by the Development Plan; and (c) OWNER is not then in uncured default of this Agreement. The initial term and, if and upon extension, the 5-year extension, shall sometimes be referred to herein collectively as the "Term." 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, et seq.) 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 o f all or a part of the Property. (b) Concurrent with 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 agreement ("Assigment and Assumption Agreement"), in a form reasonably acceptable to CITY, by the purchaser, transferee or assignee and providing therein that the purchaser, transferee or assignee expressly and unconditionally assumes all the duties, obligations, agreements, covenants, waivers of OWNER under this Agreement, including, without limitation, the covenant not to sue and waiver contained in Section 8.5 hereof 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. RVPUBUSB \65 13 18 -6- 2.4.2 Release of Transferring Owner. Notwithstanding any sale, transfer or assignment, a transferring OWNER shall continue to be obligated under this Agreement with respect to the transferred Property or any transferred portion thereof, unless such transferring OWNER is given a release in writing by CITY, which release shall be provided by CITY upon the full satisfaction by such transferring OWNER of the following conditions: (a) OWNER no longer has a legal or equitable interest in all or any part of the Property subject to the transfer. (b) OWNER is not then in default under this Agreement. (c) OWNER has provided CITY with the notice and executed agreement required under Paragraph (b) of Subsection 2.4.1 above. (d) The purchaser, transferee or assignee provides CITY with security equivalent to any security previously provided by OWNER to secure performance of its obligations hereunder. 2.4.3 Subsequent Assignment. 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 Utilities. In accordance with Section 201(h) of the Development Agreement Policies, the Project shall be connected to all utilities necessary to provide adequate water, sewer, gas, electric, and other utility service to the Project. OWNER shall contract with the CITY for CITY -owned or operated utilities serving the Project for such prices and on such terms as may be mutually agreed to between the parties. 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 that has been finally subdivided and is individually (and not in "bulk") sold or leased to a member of the public or other ultimate user. Subject to Sections 8.1 through 8.6, 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 (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 for such lot set forth in this Agreement have been paid. RVPUBUSB\651318 -7- 2.5 Amendment or Cancellation of Agreement. This Agreement may be amended or canceled in whole or in part only by written consent of all parties in the manner provided for in Government Code Section 65868 and Article 5 of the Development Agreement Policies. This provision shall not limit any remedy of CITY 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 this Agreement. (d) Completion of the Project in accordance with the terms of this Agreement including issuance of all required occupancy permits and acceptance by CITY or applicable public agency of all required dedications. (e) Termination of this Agreement based on any default of OWNER and following the termination proceedings required by Articles 7 and 8 of the Development Agreement Policies. 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 that has occurred prior to such termination or with respect to any obligations that are specifically set forth as surviving this Agreement. Upon such termination, any Development Impact Fees paid pursuant this Agreement by OWNER to CITY for residential units on which construction has not yet begun shall be refunded to OWNER by CITY. 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. RVPUBUSB\651318 -8- (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 CITY: City of San Jacinto 201 East Main Street San Jacinto, CA 92583 Attn: City Manager Telephone: (909) 487-7342 Facsimile: (909) 654-3728 Copy to: Best, Best & Krieger, LLP 3750 University Ave. Riverside, CA 92501 Attn: City Attorney Telephone: (909) 686-1450 Facsimile: (909) 686-3083 If to OWNER: Osborne Development Corp. 30001 Coinercio Rancho Santa Margarita, California 92688 Attn: Robert E. Osborne, President Telephone: (949) 888-3822 Facsimile: (949) 888-3820 Copy to: Rutan & Tucker, LLP 611 Anton Blvd., Suite 1400 Costa Mesa, California 92626 Attn: Philip D. Kohn, Esq. Telephone: (714) 641-5100 Facsimile (714) 546-9035 (c) Either party may, by notice given at any time, require subsequent notices to be given to another person or 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. RVPUB\JSB1651318 -9- 3. DEVELOPMENT OF THE PROPERTY. 3.1 Rights to Develop. Subject to the terms of this Agreement including the Reservation of Rights, OWNER shall have a vested right to develop the Property in accordance with, and to the extent of, this Agreement. Except as expressly provided otherwise herein, the Project shall remain subject to all Land Use Regulations and Development Approvals, whether in effect on the Effective Date or subsequently adopted or amended, that are required to complete the Project as contemplated by the Development Plan. In addition, except as provided in Section 3.3 hereof, the Project shall remain subject to any Development Impact Fees that are required to complete the Project as contemplated by the Development Plan, whether in effect as of the Effective Date or subsequently adopted, amended or otherwise altered. Except as otherwise provided in this Agreement and notwithstanding the authority of the CITY to further pursuant to Government Code section 65866, 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 Land Use Regulations and Development Approvals, whether in effect on the Effective Date or subsequently adopted. 3.2 Effect of Agreement on Land Use Regulations. Except as otherwise provided under the terms of this Agreement including the Reservation of Rights, 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 Land Use Regulations and Development Approvals, whether in effect on the Effective Date or subsequently adopted. In connection with any subsequently imposed Development Approvals and except as specifically provided otherwise herein, CITY may exercise its discretion in accordance with the Land Use Regulations then in effect, as provided by this Agreement, including, but not limited to, the Reservation of Rights. CITY shall accept for processing, review and action all applications for Subsequent Development Approvals, and such applications shall be processed in the same manner and the CITY shall exercise its discretion, when required or authorized to do so, to the same extent it would otherwise be entitled in the absence of this Agreement. 3.3 TUMF Fee and MSHCP Fee. Notwithstanding any provision herein to the contrary, the Project shall not be subject to the CITY's Transportation Uniform Mitigation Fee ("TUMF") or, if adopted, the Multi -Species Habitat Conservation Plan Fee ("MSHCP Fee"). Nothing contained in this Section 3.3 shall be construed as affecting OWNER's obligation to pay all other Development Impact Fees, whether existing as of the Effective date or adopted, amended or otherwise altered thereafter. 3.4 [intentionally left blank.] 3.5 [intentionally left blank.] 3.6 Reservation of Rights. RVPUB\JSB\6513I8 -10- 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 CITY to cover the estimated actual costs to CITY of processing applications for Development Approvals or for monitoring compliance with any Development Approvals granted or issued. (b) Procedural regulations relating to hearing bodies, petitions, applications, notices, findings, records, hearings, reports, recommendations, appeals and any other matter of procedure. (c) Regulations, policies and rules governing engineering and construction standards and specifications applicable to public and private improvements, including, without limitation, all uniform codes adopted by the City and any local amendments to those codes adopted by the CITY, including, without limitation, the CITY's Building Code, Plumbing Code, Mechanical Code, Electrical Code, Fire Code and Grading Code. (d) Regulations that may be in material conflict with this Agreement but that are reasonably necessary to protect the residents of the project or the immediate community from a condition perilous to their health or 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. (e) Regulations that are not in material conflict with this Agreement or 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 materially conflict with the Development Plan and shall therefore not be applicable to the development of the Property. (f) Regulations that are in material conflict with the Development Plan; provided OWNER has given written consent to the application of such regulations to development of that Property in which the OWNER has a legal or equitable interest. (g) Regulations that impose, levy, alter or amend fees, charges, or Land Use Regulations relating to consumers or end users, including, without limitation, trash can placement, service charges and limitations on vehicle parking. 3.6.2 Subsequent Development Approvals. This Agreement shall not prevent CITY, in acting on subsequent Development Approvals and to the same extent it would otherwise be authorized to do so absent this Agreement, from applying subsequently adopted or amended Land Use Regulations that do not materially conflict with this Agreement. RVPUBUSB\651318 -11- 3.6.3 Modification or Suspension by State or Federal Law. In the event that State, County 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, including any County law or regulation that prohibits or, in the CITY's reasonable discretion, materially affect the CITY's authority to limit the imposition of the MSHCP Fee in accordance with Section 3.3 hereof, 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 CITY is restricted in its authority to limit certain aspects of its police power by contract and that the foregoing limitations, reservations and exceptions are intended to reserve to CITY all of its police power that cannot be or are not expressly so limited. This Agreement shall be construed, contrary to its stated terms if necessary, to reserve to CITY all such power and authority that cannot be or is not by this Agreement's express terms so restricted. 3.7 [intentionally left blank.' 3.8 Regulation by Other Public Agencies. It is acknowledged by the parties that other public agencies not within the control of CITY possess authority to regulate aspects of the development of the Property separately from or jointly with CITY and this Agreement does not limit the authority of such other public agencies. 3.9 [intentionally left blank.] 3.10 [intentionally left blank.] 3.11 Senate Bill 221. To the extent the Development Plan includes one or more tentative maps for a subdivision as the term "subdivision" is defined in Government Code Section 66473.7(a) and to the extent the Project, or any part thereof, is not exempt under Government Code Section 66473.7(i), each such tentative map shall comply with the provisions of Government Code Section 66473.7. 4. PUBLIC BENEFITS. 4.1 Intent. The parties acknowledge and agree that development of the Property will result in substantial public needs that will not be fully met by the Development Plan and further acknowledge and agree that this Agreement confers substantial private benefits on OWNER that 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. RVPUBUSB\651318 -12- 4.2 Development Impact Fees. 4.2.1 Amount and Components of Fee. Except as provided in Section 3.3 hereof, the Development Impact Fees currently charged by CITY, or as subsequently adopted, amended or otherwise altered, shall be charged to the Project at the rate in effect at of the time of payment as set forth in Existing Land Use Regulations. 4.2.2 Time of Payment. Except as otherwise specifically provided for in this Agreement, in accordance with Section 202 of the Development Agreement Policies all Development Impact Fees shall be paid to CITY in accordance with the applicable time frames set forth in Existing Land Use Regulations. No Development Impact Fees shall be payable prior to the Commencement Date of this Agreement. 4.2.3 Fee Credits. In accordance with Section 202 of the Development Agreement Policies, OWNER shall not be entitled under this Agreement to any credits against the Development Impact Fees required pursuant to Subsection 4.2 for the dedication of land, the construction of improvements or the payment of fees. 4.2.4 Future Fees. Except as expressly provided in Section 3.3 hereof, CITY hereby agrees that the Project shall be subject to any Development Impact Fee that CITY may enact, amend, alter, adopt, or impose before or after the Effective Date. 4.2.5 Expiration of Development Impact Fee Limitation Period. In accordance with Section 202 of the Development Agreement Policies, upon and after expiration of the Development Impact Fee Limitation Period, the full amount of Development Impact Fees, including, without limitation, any TUMF Fee and/or MSHCP Fee, shall be required to be paid for the Project in accordance with Land Use Regulations then in effect for those portions of the Project for which the applicable Development Impact Fee has not already been paid. 4.3 Development Agreement Fee. 4.3.1 Development Agreement Fee. In consideration for the benefits provided in this Agreement and in addition to any other Development Impact Fees required by Section 4.2, OWNER shall, upon the issuance of building permits, pay to the CITY a fee in the total amount of Three Thousand Two Hundred Dollars ($3,200) per residential dwelling unit. Nothing contained in this Agreement shall be construed as reducing or otherwise limiting OWNER's obligation to pay any and all other Development Impact Fees imposed by the CITY. 4.3.2 Commercial Fee. In consideration for the benefits provided in this Agreement and in addition to any other Development Impact Fees required by Section 4.2, OWNER shall, upon the issuance of building permits, pay to the CITY a commercial fee in the total amount of Fifteen Thousand ($15,000). Nothing contained in this Agreement shall be construed as reducing or otherwise limiting OWNER's obligation to pay any and all other Development Impact Fees imposed by the CITY. RVPUBUSB\651318 -13- 5. FINANCING OF PUBLIC IMPROVEMENTS. 5.1 Community Facilities Districts. 5.1.1 SERVICES CFD. CITY will cooperate with OWNER in the formation of one or more community facilities districts (individually a "CFD") for the purpose of financing CITY's provision of certain public services to the Project. It is the intent of the parties that any such community facilities district will levy a special tax on the Property in an amount not to exceed that amount that the City Council determines is necessary to provide public safety fire and police services and road maintenance services within such CFD. Such CFD shall include, at a minimum, an automatic two percent (2%) increase over the special tax for immediately preceding fiscal year in the Special Tax used to fund such CFD, to the extent permitted under applicable law. Notwithstanding the foregoing, it is acknowledged and agreed by the parties that nothing contained in this Section 5.1.1 shall be construed as requiring CITY or the City Council to act as the lead agency in the formation of any such community facilities districts or to issue and sell bonds. Notwithstanding the foregoing, it is acknowledged and agreed by the parties that nothing contained in this Agreement shall be construed as relieving OWNER from paying all Development Impact Fees required under Existing Land Use Regulations, as amended pursuant to this Agreement, including, without limitation, all public safety structures and equipment fees. 5.1.2 Non -Project Lots. To the extent other owners of proj ects with tentative maps already approved by CITY or with tentative maps currently being processed by CITY have not included or have not agreed to include such projects in the Services CFD, OWNER shall use its reasonable best efforts to cause such owners of such projects to agree to their projects in the Services CFD; provided, however, that special assessment to be levied on such projects under the Services CFD shall not exceed the amount paid by property owners within the Project. 5.1.3 Adopted City Policies. In accordance with Section 201 (g) of the Development Agreement Policies, any formation of any community facilities district or annexation ofproperty into an existing community facilities district, or through another similar financing mechanism conducted pursuant to this Agreement shall be conducted in accordance with and shall not deviate from adopted CITY policies regarding the same in effect at the time. 5.2 [intentionally left blank.] 5.3 [intentionally left blank.' 5.4 [intentionally left blank.] RVPUBUSB\651318 -14- REVIEW FOR COMPLIANCE. 6.1 Periodic Review. The CITY 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 in accordance with Article 7 of the Development Agreement Policies. OWNER shall submit an Annual Monitoring Report, in a form acceptable to the City Manager, within ten (10) days after written notice from the City Manager. 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 City Council. 6.2 Special Review. A special review of compliance with this Agreement may be made either by agreement of the parties or by initiation in one or more of the following ways: (a) Recommendation of the Planning staff; (b) Affirmative vote of at least four (4) members of the Planning Commission; or (c) Affirmative vote of at least three (3) members of the City Council. 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. (b) Upon completion of a periodic review or a special review, the Community Development Director shall submit a report to the Planning Commission setting forth the evidence concerning good faith compliance by OWNER with the terms of this Agreement and his or her recommended finding on that issue. The Planning Commission shall consider such report at a public hearing. The City Manager shall provide notice to OWNER at least ten (10) days prior to the hearing by the Planning Commission. (c) If the Planning Commission finds and determines 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 Planning Commission finds and determines on the basis of substantial evidence that OWNER has not complied in good faith with the terms and conditions of this Agreement, the Commission may recommend to the City Council to modify or terminate this Agreement. OWNER may appeal a Planning Commission determination pursuant to this Section 6.3(d) pursuant to CITY's rules for consideration of appeals in zoning matters then in effect. Notice of default as provided under Section 7.4 of this Agreement shall be given to OWNER prior to or concurrent with proceedings under Section 6.4 and Section 6.5. RVPUBVSB\651318 -15- 6.4 Proceedings Upon Modification or Termination. If, upon a finding under Section 6.3, CITY determines to proceed with modification or termination of this Agreement, CITY 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 CITY proposes to terminate or to modify the Agreement; and, (c) Such other information that the City considers 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 teiins and conditions of this Agreement. The burden of proof on this issue shall be on OWNER. If the City Council finds, based upon substantial evidence, that OWNER has not complied in good faith with the terms or conditions of the Agreement, the City Council may terminate this Agreement or modify this Agreement and impose such conditions as are reasonably necessary to protect the interests of the CITY. The decision of the City Council shall be final, subject only to judicial review pursuant to Section 1094.5 of the Code of Civil Procedure. 6.6 Certificate of Agreement Compliance. If, at the conclusion of a Periodic or Special Review, OWNER is found to be in compliance with this Agreement, CITY shall, upon request by OWNER, issue a Certificate of Agreement Compliance ("Certificate") to OWNER stating that after the most recent Periodic or Special Review and based upon the information known or made known to the Community Development Director and City Council 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, CITY 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 Community Development Director or City Council. 7. DEFAULT AND REMEDIES. 7.1 Remedies in General. It is acknowledged by the parties that CITY would not have entered into this Agreement if it were to be liable in damages under this Agreement, or with respect to this Agreement or the application thereof. RVPUBUSB\651318 -16- 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 CITY 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 that arises out of this Agreement; or (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. 7.2 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 CITY as provided in Section 7.1 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 that would adequately compensate OWNER for such efforts. 7.3 Termination or Modification of Agreement for Default of OWNER. CITY 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, CITY may teiniinate or modify 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. RVPUBUSB\651318 -17- 7.4 Termination of Agreement for Default of CITY. OWNER may terminate this Agreement only in the event of a default by CITY in the performance of a material teiiii of this Agreement and only after providing written notice to CITY of default setting forth the nature of the default and the actions, if any, required by CITY to cure such default and, where the default can be cured, CITY 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. LITIGATION. 8.1 General Plan Litigation. CITY has determined that this Agreement is consistent with its Comprehensive General Plan (hereinafter the "General Plan") and that the General Plan meets all requirements of law. CITY shall defend, at its expense, including attorneys' fees, indemnify, and hold harmless OWNER, its agents, officers and employees from any claim, action or proceeding against CITY, its agents, officers, or employees to attack, set aside, void, or annul the approval of the General Plan. OWNER shall promptly notify CITY of any such claim, action or proceeding, and OWNER shall cooperate in the defense. If OWNER fails to promptly notify CITY of any such claim, action or proceeding, or if OWNER fails to cooperate in the defense, CITY shall not thereafter be responsible to defend, indemnify, or hold harmless OWNER. OWNER may in its discretion participate in the defense of any such claim, action or proceeding. 8.2 Third Party Litigation Concerning Agreement. OWNER shall defend, at its expense, including attorneys' fees, indemnify, and hold harmless CITY, its agents, officers and employees from any claim, action or proceeding against CITY, 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. CITY shall promptly notify OWNER of any such claim, action or proceeding, and CITY shall cooperate in the defense. If CITY fails to promptly notify OWNER of any such claim, action or proceeding, or if CITY fails to cooperate in the defense, OWNER shall not thereafter be responsible to defend, indemnify, or hold harmless CITY. CITY may in its discretion participate in the defense of any such claim, action or proceeding. 8.3 Environment Assurances. OWNER shall indemnify and hold CITY, 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, CITY, its officers, agents and employees in any action based or asserted upon any such alleged act or omission. CITY may in its discretion participate in the defense of any such action. RVPUBVSB\651318 -18- 8.4 Reservation of Rights. With respect to Section 8.1 herein, Owner reserves, and with respect to Sections 8.2 and 8.3 herein, CITY reserves, the right to either (1) approve the attorney(s) that the indemnifying party selects, hires or otherwise engages to defend the indemnified party hereunder, which approval shall not be unreasonably withheld, or (2) conduct its own defense; provided, however, that the indemnifying party shall reimburse the indemnified party forthwith for any and all reasonable expenses incurred for such defense, including attorneys' fees, upon billing and accounting therefor. 8.5 Challenge to Existing Land Use Approvals. By accepting the benefits of this Agreement, OWNER, on behalf of itself and its successors in interest, hereby expressly agrees and covenants not to sue or otherwise challenge the Existing Land Use Approvals. Such agreement and covenant includes, without limitation, the covenant against any direct suit by OWNER or its successor in interest, or any participation, encouragement or involvement whatsoever that is adverse to CITY by OWNER or its successor in interest, other than as part of required response to lawful orders of a court or other body of competent jurisdiction. OWNER hereby expressly waives, on behalf of itself and its successors in interest, any claim or challenge to the Existing Land Use Approvals. In the event of any breach of the covenant or waiver contained herein, CITY shall, in addition to any other remedies provided for at law or in equity, be entitled to: (a) impose and recover (at any time, including after sale to a member of the public or other ultimate user) from the party breaching such covenant or waiver, the full amount of Development Impact Fees that the breaching party would have been required to pay in the absence of this Development Agreement; and (b) impose any Subsequent Land Use Regulation on those Land Use Approvals for which the breaching party had not, as of the time of such breach, obtained a building permit. OWNER hereby acknowledges that it has read and is familiar with the provisions of California Civil Code Section 1542, which is set forth below: "A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR." By initialing below, OWNER hereby waives the provisions of Section 1542 in connection with the matters that are the subject of the foregoing waivers and releases. RVPUBUSB\651318 Owner's Initials -19- 8.6 Survival. The provisions of Sections 8.1 through 8.6, inclusive, shall survive the termination of this Agreement. 9. MORTGAGEE 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, deed of trust or other security device 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: (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 CITY in the manner specified herein for giving notices, shall be entitled to receive written notification from CITY of any default by OWNER in the performance of OWNER's obligations under this Agreement. (c) 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. (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 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 CITY, the performance thereof shall continue to be a condition precedent to CITY'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. RVPUBUSB\651318 -20- 10. MISCELLANEOUS PROVISIONS. 10.1 Recordation of Agreement. This Agreement and any amendment or cancellation thereof shall be recorded with the Riverside County Recorder by the Clerk of the City Council within ten (10) days after the City enters into the Agreement, in accordance with Section 65868.5 of the Government Code. If the parties to this Agreement or their successors in interest amend or cancel this Agreement, or if the CITY terminates or modifies this Agreement as provided herein for failure of the OWNER to comply in good faith with the terms and conditions of this Agreement, the City Clerk shall have notice of such action recorded with the Riverside County Recorder. 10.2 Entire Agreement. 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 that 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. 10.3 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 Sections 4 and 5 of this Agreement, including the payment of the Development Impact Fees set forth therein, are essential elements of this Agreement and CITY 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. 10.4 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. 10.5 Section Headings. All section headings and subheadings are inserted for convenience only and shall not affect any construction or interpretation of this Agreement. 10.6 Singular and Plural. As used herein, the singular of any word includes the plural. 10.7 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 that has RVPUBUSB\651318 -21- 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 expressly provided for herein. 10.8 Time of Essence. Time is of the essence in the performance of .the provisions of this Agreement as to which time is an element. 10.9 Waiver. Failure by a party to insist upon the strict perfoiiiiance 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 teims of this Agreement thereafter. 10.10 No Third Party Beneficiaries. This Agreement is made and entered into for the sole protection and benefit of the parties and their successors and assigns. No other person shall have any right of action based upon any provision of this Agreement. 10.11 Force Majeure. 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 injunctions), 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. 10.12 Mutual Covenants. The covenants contained herein are mutual covenants and also constitute conditions to the concurrent or subsequent performance by the party benefitted thereby of the covenants to be performed hereunder by such benefitted party. 10.13 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. 10.14 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. RVPUBUSB\651318 -22- 10.15 Jurisdiction and Venue. Any action at law or in equity arising under this Agreement or brought by a 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. 10.16 Project 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 CITY and OWNER is that of a government entity regulating the development of private property and the owner of such property. 10.17 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 acknowledgment 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. 10.18 Eminent Domain. No provision of this Agreement shall be construed to limit or restrict the exercise by CITY of its power of eminent domain. 10.19 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 Community Development 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. OWNER for itself, assigns and successors hereby waives the provisions of the Hague Convention (Convention on the Service Abroad of Judicial and Extra Judicial Documents in Civil or Commercial Matters, 20 U.S.T. 361, T.I.A.S. No. 6638). RVPUB\JSB\651318 -23- 10.20 Authority to Execute. The person or persons executing this Agreement on behalf of OWNER warrants and represents that he or she/they have the authority to execute this Agreement on behalf of his or her/their corporation, partnership or business entity and warrants and represents that he or she/they has/have the authority to bind OWNER to the performance of its obligations hereunder. RVPUBUSB\651318 -24- IN WITNESS WHEREOF, the parties hereto have executed this Development Agreement on the last day and year set forth below. RVPUBUSB\651318 OWNER OSBORNE DEVELOPMENT CORPORATION a California corporation By: Robert E. Osborne President Dated: CITY CITY OF SAN JACINTO By: Name: Title: Dated: [Signature Page to Development Agreement No. -25- RVPUB\JSB\651318 EXHIBIT "A" (Legal Description of the Property) Exhibit A LEGAL DESCRIPTION TENTATIVE TRACT 28858 BEING A SUBDIVISION OF A PORTION OF FAM LOTS 19 AND 21, OF THE LANDS OF THE SAN JACINTO LAND ASSOCIATION, AS SHOWN BY MAP ON FILE IN BOOK 8, PAGE 357, OF MAP RECORDS OF SAN DIEGO COUNTY, CALIFORNIA LEGAL DESCRIPTION TENTATIVE TRACT 29917 BEING A SUBDIVISION OF A PORTION OF LOTS 19 THROUGH 24, INCLUSIVE, OF PARK HILL SUBDIVISION, IN THE HEMET IRRIGATION DISTRICT, AS SHOWN BY MAP OF THE HEMET LANDS COMPANY, RECORDED IN BOOK 1, PAGE 14 OF MAPS, RECORDS OF RIVERSIDE COUNTY, CALIFORNIA. Legal Description Tentative Tract 31036 PARCEL 1: THE NORTH HALF OF LOT 5, KILMER RANCH TRACT ADDITION, IN THE COUNTY OF RIVERSIDE, STATE OF CALIFORNIA, AS PER MAP RECORDED IN BOOK 8, PAGE(S) 51 OF MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY. EXCEPT THAT PORTION CONDEMED TO THE COUNTY OF BY FINAL DECREE OF CONDEMNATION, A CERTIFIED COPY OF WHICH WAS RECORDED JUNE 21, 1935 IN BOOK 234, PAGE(S) 578 OF OFFICIAL RECORDS. PARCEL 2: THE SOUTH HALF OF LOT 5 OF KILMER RANCH TRACT ADDITION, IN THE OCUNTY OF RIVERSIDE, STATE OF CALIFORNIA, AS PER MAP RECORDED IN BOOK 8, PAGE(S) 51 IN THE MAPS, IN THE OFFICE OF THE CONTY RECORDER OF SAID COUNTY. PARCEL 3: FARM LOT 61 OF THE LANDS OF THE SAN JACINTO LAND ASSOCIATION, IN THE CITY OF SAN JACINTO, COUNTY OF RIVERSIDE, STATE OF CALIFORNIA, AS PER MAP RECORDED IN BOOD 8, PAGE(S) 357 OF PAS, IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO COUNTY. LEGAL DESCRIPTION PARCEL 2 THAT PORTION OF THE NORTHERLY RECTANGULAR ONE HALF OF FARM LOT 78 OF THE LANDS OF THE SAN JACINTO LAND ASSOCIATION, IN THE CITY OF SAN JACINTO, COUNTY OF RIVERSIDE, STATE OF CALIFORNIA, AS PER MAP RECORDED IN BOOK 8, PAGE 357 OF MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO COUNTY, CALIFORNIA, MORE PARTICULARLY DESCRIBED AS FOLLOWS: BEGINNING AT THE SOUTHEAST CORNER OF SAID PARCEL 2 OF PARCEL MAP NO. 19362, RECORDED IN BOOK 122, PAGES 57 AND 58 OF THE COUNTY RECORDER, SAID POINT ALSO BEING NORTHEAST CORNER OF SAID FARM LOT 78; THENCE SOUTH 89°59'04" WEST 188.56 FEET ALONG THE SOUTH LINE OF PARCEL 2 OF SAID PARCEL MAP NO. 19362; THENS SOUTH 31 °27'O8" EAST, 361.92 FEET TO THE EAST LINE OF THE NORTHERLY RECTANGUALR ONE HALF OF SAID FARM LOT 78, SAID POINT BEING DISTANT NORTH 00°03'08" WEST, 21.11 FEET FROM THE SOUTH LINE OF THE NORHTERLY RECTANGULAR ONE HALF OF SAID FARM LOT 78; THENCE NORTH 00°03'08" WEST, 308.80 FEET ALONG SAID EAST LINE TO THE POINT OF BEGINNING. RVPUBUSB\651318 EXHIBIT "B" (Map of the Property) Exhibit B THIS MAP WAS PREPARED FOR ASSESSMENT PURPOSES ONLY. NO LIABILITY IS ASSUMED FOR THE ACCURACY ON\THE DATA SHOA. ASSESSOR'S PARCEL MAY NOT COMPLY WITH LOCAL LOT—SPNT OR BUILDING SITE ORDINANCES. DATA; RS IS/RO I1/11, 83/15 INNS 6fAP 1TB- 5, DIIAL. 1-21, SON -I ASSESSOR'S MAP BK431 PG.05 Riverside Counly, Colil, ,h,) POR,SEC 21 T,4S,,R,1W CITY OF SAN JACINTO T.R.A. 010-097 1 010-098 010-181 010-191 010-193 MB 8/357 SD SAN JACINTO LAND ASSOCIATION PM 183/49-50 PARCEL MAP 27723 Mar 2001 21-IS 1 /22 803 EP4 21/P2 33/12 22/82 28/84 21/84 22 9IS MAP WAS PREPARED FOR ASSESSMENT PURPOSES ONLY, NO LIABILITY ASSUMED FOR THE ACCURACY OF THE DATA SIMI, ASSESSOR'S PARCEL ye NOT COMPLY WITH LOCAL LOT -SPLIT DR BUILDING SITE ORDINANCES. SEC.1 11 12 2 T.5S.,R,1W CITY OF SAN JACINTO i,1U, 010-119 010-118 1JO-LO 13-24 0 OA1A: R.S. 1/27 S.D. Pcrk Hill Subcf, ASSESSOR'S MAP B14438 PG.28 Riveraid Coanly, Coli[. Lb,b CD M8 1/14-15 Hemet Land Co, 07 May 2002 LGLF 1°' aaII ROHWER 05/G 21,2,11,20-1-33 K.R.TA. TR. A. 0/0 - /7/ 091 -060 09/ - 06/ 0/0 - 057 0/0- 060 0/0- 0 6/ Lot 60 FOR RO. SAN ✓ACINTO VIE✓O (Por. Sec .36, T4S., R./W. ) TRA 09/-O6O TR ► AT/i/" aq/-os/ ,v8r 1� -� e if S TREET-, - b TRA O/0-06/ TRA -"' 010-060- AUGUST 1970 `: l 4/5.62 Par. 2 _3 SJL.A. K.R.T. z_ 65-95 \ i3A 2/-9 P.M. /3//60 jOO.Oo / A .1 2°tl ( S.5.'AC '-fe — ) M.B. 8/357 S.D. San Jacinto Land Association R.M. /31/60-63 Parcel Map 20795. M.B. 8/5/ Kum/er Ranch Tract Addition DATA: R.S. 33/48-62 R' s¢6o /3 2. !8± AC. 0 ti TH/S MAP IS FOR ASSESSMENT PURPOSES ONLY FOR, PAR. 8, P. M•/3//60 0.22�4C. ' -s Par. 6 3.80 AC. sr 2z• 9!�^ R= _ CENTER OF SEC.36 ASSESSORS MAP BR' 433 PG./6 RIVERSIDE COUNTY, CALIF r, J8o/J0D-JOJ LA ENTRADA STREET N 88°04'31" E 155.59' N B9459'04" E LICENSED LAND SURVEYOR NO. 6054 REGISTRATION EXPIRES: 6-30-07 B 0 Scale DRAWN BY: M.L,L EGAL DESCR 260,00' N 8959'04" E N 00°01'21" W 29.00' 270,00' pARcEL GRANT DBE) llis1.4 43-4266 080, 26, 1005 NUMBER DIRECTION DISTANCE Li N 8959'04" E 10.00' L2 N 00400'5G" W 22.27' L3 N 00'03'08" W 25,00' L4 N 21'45'18" E 13,46' DATE: DEC 09, 2000 DWG. NO.: APPROVED BY: pAR, 3 p,M, J9-1/84 = 80' REVISIONS PT PAR, 2 325,73' ION LAT P,j\jL J22/57-68 Lo-f 78 S J. L. A. MA, 8/357 S,D, CO. N 89°59'10" E 109.00' 1 S 89°59'04" W 10.00' S. LINE NIT REC. 1/2 FARM LOT 78 99.00' 145, 0' N 89°59'10" E 400,00' FARM Lo-f 78 L. A. M,B, 13/357 S,D, CO, PROJECT CITY OF SAN JACINTO LOT B" CITY LEASE N 8 P.O.C. S.E. COR PARCEL 2 RN. 122/57-58 PARCEL 2 GRANT 1)8a) 4B42156 20, 1985 0,4293 ACRES 42 PARKING STALLS AREA OF CITY LEASE T.P.O.B. LOT B " Lancaster Contract Survey Co Licensed Land Surveyors P.D. BOX 409 SAN JACINTO. CA 09691 - (400) 4117-1161 SHT. NO. EXHIBIT "C" (Development Plan) Tentative Tract Map 28858 (approved for up to 65 residential lots) ("Tract 28858"); Tentative Tract Map 29917 (approved for up to 135 residential lots) ("Tract 29917"); Tentative Tract Map 31036 (in development approval process for up to 135 residential lots) ("Tract 31036"); and Approximately 20,000 square feet of commercial uses on approximately 29,000 square foot parcel at the corner of San Jacinto Avenue and Esplanade Avenue RVPUBUSB\651318 Exhibit C 6'SIDEW� LK CURB A.C.PAVEMENT CURB -'-.i '. i. STREET' SECTION AS REQUIRED BY GEOTECI INICAL ENGINEER ' --COMPACTED SUBGRADii TYPICAL STREET SECTION 6' 101 03 20 7TH STREET & MAIN STREET NOT TO SCALE 5644 NORTH GRAPHIC SCALE 'A EMERGENCY OVERFLOW TO MAIN ST. fry Ah d 5 !/ -SUMP /JPUMP. R 6 51D1 0.5% IN THE CITY OF SAN JACINTO, CALIFORNIA TENTATIVE TRACT MAP NO. 31036 10' ALK 4 'U C PAVEMENT CURB- 'TREE' SECTION AS REQUIRED BY CEOT'ECHNICAL ENGINEER ['ACTED SUDGRADE TYPICAL STREET SECTION a' SIL) B W ALR '91 /1 97' '4 ), 759 PROPOSED 10 YEAR STORM RETENTION BASIN. RETAINED -Jy- VOL=72,700 CF DEPTH= 5.0'--� oaF+EJ 4 33-1 ,11-6 4 emir. s;-1 CAMINO ILOS BANOS - 100 IL 660'S w a. 116. 187.51 [Tv .7 1.9 'SD l LOT 'A' PARK RETENTION BASIN 2.65 AC 100 YR STROM RETAIN VOL.=142,950 CF '- MAX PONDING DEPTH=2.5' 66 89. 107' 65 o 9 n1 110' 64 N 63 90 110' 62 r0.91 61 9 110' 60 1.41 N 10' '59 [91.7 N 58 92,61 9 CZ V) 30' of 12 280' M1 9 67 89.t1 n0' 118 [8.7 110' p0 N 110' 117 89.01 116 188.3 110__ 115 110' 71 N [Tin]- 110' 114 159.9I n 105' 72 LoJ� 110' 73 2 191.5] 110' 74 S Laioal 110' 113 LO.,I TOfi 112 to 190.3 I h/ 111 S 141' 30' ce 81 w r-' STREETS 'A - I' NOT TO SCALE N 09'46'24 68 3 ' Lard 66 188.2] 2 MAIN STRE 5 iia-31 1323.16' / 70' 70 CB„ STRE 04% So 95 119 (07-9 1 L 4 110' 1 20 10 121 110 122 I ass 110' 134 L0i 31 ' le 132 L89_6] 110' 131 [ail/ 11 a' 123 [fl9.I I o% 130 9a.21 110' 124 )P.9.4 11 110' fl 29 190.51 110' 125 -„ 128 N e. N 190.8 110'/ 126 /T, troOIVII 95' 9 71' 110 9 70' 'n 280' a41. 110' 127 LA as 95' ti/;4 70' 70 0' 6 7 8... 9 . 1 ROT) LW 7a 95' / (- 97 Lo9 � (o 10 98 189.31 95 LT] 10' • -99-- 189.61 10' 94 110' 93 L2, 1 92 a TM 110' • 102 7, A FOOT A 10' • 103 - - 115 104 09 0 108 107, �9:]1- ND]S 9i.3J 70' 72' �750 19581 7 76 0 L3,11 \ • . 57' I 71' 65 71' 71' 77 0 �a 71' 78J0 71' 0511 412: 52 0 51 N 13351 TOT51 Ip_. a'S._ ti5' 6 93.9 71' 7 79 - 80 I94.3 ::i/E - 71' / 71' 2.y 57 49 r94:3I 70' 114' 71' 71' 105' 105 (9t.3] rn 1 06 191--4i � 66' 110' 91 [91.3 1 90 91.51 110 89 1:9 110' 88 192� 110' 87 92.31 m 110' L2� n 0' 81 0 82 94,61: 71' 71' 7 83 (9d t I 71' 0.45 71' 84 - Ego e I- 428' 72' �I CB 1 1 0 4 17 72' 18 7 0.4% 88' 16 190.41 TREE- T 'F' •q9 86' 0.4X 70 171 17 [TS J 13 LoT] 109' 53 1 1 5 all1 . 90.4J 19 191.4 oST-11 7y�'A 24 0 191.4 72' 70' 2 26 2 9a. 1 57 -00 19�U51 'b 21 211J. 100'" 53 '\s71 23 91 7 5 92.5 STREET 'G' eq 187 0,4x 72 32 19z 172' ' 28 / [92.71 7' " / 29 1.92-A I 0 31 v' C27n l M1 57 0' OS' S7 t211, SEVENTH 89'46'06 48 r9L6 65' 47 V. 94.4 I 65' 65' 46 V. 9431 65' 45 ii 194.0 65 44 193.9 1 43 n L35J 6 65 34 L20 8' STREET 'H'Aa4 is�f 70' 35 5 93.81 36 (9a.� 42 L3_]J 6 65' 41 2 FE6R- 65' 67• 40 93.8] S 39 172 37 L94.1 110 38 94.1 1 193.9II a� 151' STREET .„1324_74_ 77 4 CO 30' S0'' LAS ROSAS OR. 'K'1',,C . 1<603198 @k,";N LLm M. 51b'0YN_ SEAL SEAL Ne. A6354 P 1,/3./a2 APPROVED BY: PREPARED BY: DATE R.C.E. N0, EXP. DATE B O PAli VAIS6dOT':i 19i(1-(1:32 OWE L:-.1 I 53)4- 163'33Y. AP'1,,:i:1-11)4- 03.4 ;,&S4c: 1::1 q 9< LEGEND 92.3 I TP CB 5D 0,4 JAC. N. RAMONA NORTH PRELIMINARY PAD ELEVATION TOP OF PAVEMENT ELEVATION CATCH BASIN STORM DRAIN DIRECTION OF FLOW & GRADIENT DESCRIPTION PARCEL I: THE NOR'I'Ii HALF OF LOT 5, KILMER RANCH TRACT ADDITION, IN TI IE COUNTY OF RIVERSIDE, STATE OP CALIFORNIA, AS PER MAD' RECORDED IN BOOK 8, PAGE(S) 51 OF MAPS, IN THE OFFICE OF TTIE COUNTY RECORDER OF SAID COUNTY. EXCEPT THAT PORTION CONDEMED TO THE COUNTY OF BY FINAL DECREE OF CONDEMNATION, A CERTIFIED COPY OF WHICH WAS RECORDED TUNE. 21, 1935 IN BOOK 234, PAGE(S) 578 OF OFFICIAL RECORDS. PARCEL 2: THE SOUTH HALF OP LOT 5 OF KILMER RANCH TRACT ADDITION, IN THE COUNTY OF RIVERSIDE, STATE OF CALIFORNIA, AO PER MAP RECORDED IN BOOK 8, PAGE(S) 51 OF MAPS, IN THE OFICE OF THE COUNTY RECORDER OP SAID COUNTY. PARCEL 3: FARM LOT 61 OP THE LANDS OF THE SAN JACINTO LAND ASSOCIATION, IN THE CITY OP SAN JACINTO, COI INTO' OF RIVERSIDE, STATE OP CALIFORNIA, AS PER MAD' RECORDED IN BOOK 8, PAGE(S) 357 OF MAPS, IN THE OFFICE OF THE COUNTY RECORDER OP SAN DIEGO COUNTY, SO EXPWY. SANN� JACINTO VICINITY MAP NTS SITE RIVER OWNER CHACON FARMS, A CALIFORNIA GENERAL PARTNERSHIP 710 CAWSTON AVE SAN JACINTO, CA, 92583 (909) 322-4198 APPLICANT 05BORNE DEV. CORP. 30001 COMERCIO RANCHO SANTA MARGARITA, CA. (949) B88-3822 ASSESSOR'S PARCEL NOS. 433-160-001, 002, 003 GROSS ACREAGE 403 ACRES NUMBER OF LOTS 135 RESIDENTIAL LOTS & 1 RETENTION BASIN LOT DENSITY 3.3B DO/ACRE EXISTING ZONING AGRICULTURE (A) PROPOSED ZONING R➢SIDEN'TIAL (R-I) ADJACENT LAND USE NORTH-V ACAN'I'(RESIDEN'I'IAL EAST -COMMERCIAL. scum-RESIDENTIAL/SCHOOL WEST -RESIDENTIAL PUBLIC PUBLIC UTILITIES GAS - SOUTHERN CALIFORNIA GAS CO. ELECTRIC - SOIHTIERN CALIFORNIA EDISON CO. WATER - EASTERN MUNICIPAL WATER DISTRICT SEWER - CITY OF SAN JACINTO TELEPI IONE - VERI7.3N CABLE - ADELPIIIA FLOOD ZONE ZONE'X' COMMUNITY PANEL N5030 OIX15 D DATED MAY 17, 1990 NOTE: 1. LOT 'A' TO BE USED FOR A PARK AND STORM WATER RETENTION. MAINTENANCE TO BE PROVIDED BY CTIY'S L.L. & P.U. 2. A SUMP PIIMI' WILL BE INSTALLED IN 'TIE DETENTION BASIN IF INFILTRATION DOES NOT PROVIDE A DRY BASIN WTHTIN 72 HOURS AFTER A STORM EVENT. 3. BASIN SIZE IS BASED ON DETENTION OPA 100 YR, 24 HOUR STORM IN THE DEVELOPED CONDITION. PREPARED NOVEMBER 25, 2002 • PLANNING BLAINE A. WOMER •SURVEYING CIVIL ENGINEERING CIVIL 'ENGINEERING • PUBLIC WORKS CITY OF SAN JACINTO OSBORNE' DEVELOPMENT Hemet, CA. 9 544, 41555 E Florida Ave.. Suite 5, Phone (909)658-1727 Fax (909)658-9347 Park City. UT 64096, 5133 Cave CAOYA 0r, #3,2, Phone/Fax (435)615-1489 DATE Cl.CPIPT/ON A7'F APPRC✓A TENTATIVE TRACT NO. 31036 SHEET NO.: 0F" 1 SHC(7S 2020 t0\TTM.dw0. 02/06/03 02:02:55 PM 9 PLANADE COMMONWEALTH AVE. ASHING TO AVE. Aq SITE A PARK HILL 4 vr. AVE. R/w VICINITY MAP CURET GUiiQR 12' 12' PAVEMENT CURB t GU ER 5: /7. COMPACTED SUBCRADE/ ''BASE COURSE TYPICAL STREET SECTION C.O.S.J. STD, NO. 104 INTERIOR STREETS MT S. CITY OF SAN JACINTO hNTATIVF, CTNO.29917 WAYNE VAUGHN BOLLENBACHER & KEL70N, INC. 2716 OCEAN PARK BLVD, /3006 SANTA MGHICA, CA 90405-5208 (310) 396-A514 SAN JACINTO DEVELOPMENT, INC. P.O. 90X 490 SAN JACINTO. CA 92561 (909) 654-731 t BEING A SUBDIVISION OF A PORTION OF LOTS 19 THROUGH 24, INCLUSIVE. OF PARK HILL SUBDIVISION, IN THE HEMET IRRIGATION DISTRICT, AS SHOWN BY MAP OF THE HEMET LANDS COMPANY, RECORDED IN BOOK 1, PAGE 14 OF MAPS, RECORDS OF RIVERSIDE. COUNTY, CALIFORNIA. NORTH - VACANT SOUTH - RESIDENTIAL EAST - VACANT/RESIDENTIAL WEST - SINGLE FAMILY RESIDENTIAL WATER - LAKE HEMET MUNICIPAL WATER DISTRICT SEWER - LAKE HEMET MUNICIPAL WATER DISTRICT ELECTRICITY - SOUTHERN CAUFORNIA EDISON CAS SOUTHERN CALIFORNIA CAS COMPANY TELEPHONE - VERIZON CABLE — ADELPHIA 'S PARCEL 438-280-001, 002, 003 A38-290-COI, 002. 003 TONE CONTIGUOUS OWNERSHIP EXISTING AND PROPOSEO GP - LDR (LOW DENSITY RESIDENTIAL) ZONE - THIS TENTATIVE MAP DOES NOT REPRESENT ALL CONTIGUOUS OWNERSHIP. PROPOSFO IANP USF RESIDENTIAL EX. SLY R/W t PROPOSED B3' EX. EX. 5'LY SLY R/W R/W P S!R I R 12' /4_/rr i-CURB t PAVEMENT, GUTTER I 5, I.5% , t.SXa: 1 COMPACTED 5U9GRADE-' '-BASE COUPS TYPICAL STREET SECTION C.O.S../ STD. NO. 103 PARK AVENUE GRADE SD. AO DNE 'C CURET AND GUTTER, SIDEWALKS. A.C. PAVING, UTILITIE JRD� OF LOTS .� 35 HEMET UNIFIED SCHOOL DISTRICT THOMAS PROS PAGE 81 i, C-5, 0-4. D-5 (1999 EDITION) NIN IRCF OF TRPOGRAPNY RIVERSIDE COUNTY FLODO CONTROL AND WATER CONSERVATION DISTRICT --CURBUTTERt G 5% 12' 12' 1 t -EX AC " PAVEMEN1 iI.5__ SR , %, CURB t GUTTER 5% NK COMPACTED SUBGRADE-1 BASE COURSE TYPICAL STREET SECTION C.O.S.J. STD. N0. 103 PARK AVENUE WESTERLY TRACT BOUNDARY TO WEST OF MONOAVI STREET MONDAVI STREET TO WILMNES AVE �• TERRABROWCE TCH PIL.70' �p TERRACE DRAIN 4-1;�1 4P TERRACE DRAIN PAD.- TERRACE DRAIN SECTION 'A' MENLO AVENUE wASHISS ROD BOUNDARY MAP HE INFORMATION CONTAINED ON THIS HAP WAS COMPILED USING MB 1/14 AND ASSESSOR MAPS ANO IS SUBJECT TO CHANGE UPON COMPLETION OF A BOUNDARY SURVEY. LOT AREAS 1 I 7,250 511 35 J 12.600 SF 69 7,200 SF 103 1 8.989 SF 2 - 7.200 SF 36 1 12,600 SF 70 I 7,200 SF 104 20.230 SF 7 7.200 Sr 37 12.48E Sr 71 7,200 SF 105 ' 19.725 OF 4 I 7.200 Sr 38 11.650 SF 77 7,200 SF 106 I 20.027 Sr 5 7,609 SF 39 9.550 SF 73 7,200 Sr 107 20,A04 Sr 6 7,41E 5F 40 6,500 SF 74 7,200 SF 108 j 10.981 SF 7 7,41E SF Al 8,500 SF 75 7,200 SF 109 9,766 SF 8 7,419 Sr 42 3,50D SF 76 I 9,068 SF 110 9,930 5F 9 7,A I 51" 43 8.500 SF 77 9,890 Sr 111 I 9,871 SF 10 /,AIR Sr AA B,500 SF 78 7,200 SF II2 9.996 51 11 7,418 Sr 45 3,500 SF 79 I 7.389 SF 113 9,940 SF 12 7,775 SF 46 8,500 SE 00 7.276 SF 114 I 9,906 5F 131 ]- B77..839173 SSFF 88,05000 8B2 77.22000 SST 1156 I Al47 SSFF 1I01,036107 S5FF 15 7.393 SF A9 I 8.500 SF 33 7,200 SF 117 16,576 Sr IS 7,393 SF 50 8.500 SF 64 I 7.200 Sr 113 16,828 Or I/ I 7,393 Sr 51 8.500 SF 85 I 7.200 SF 119 18,511 SF 18 , 7,393 SF 52 9.486 SF 86 7,200 SF 120 I 16,900 SF 19 7,200 SF 53 11,119 Sr 37 9.898 SF 121 18.088 5F 20 7,200 SF 54 11,446 SF 58 1 7,887 Sr 122 16,017 Sr 21 7,200 SF 55 9,750 5F 69 I 7,200 Sr '23 16,900 5F 22 - 8,280 SF 56 9,750 SF 90 7,200 SF 124 16,800 SF 23 I 6.65a SF 57 9,741 SF 91 7,200 SF 125 16,800 SF 24 I 10.670 SF 58 7,500 SF 92 7.355 5F 126 16,600 SF 25 10.680 SF 59 7,500 SF 93 . 7,428 SF 127 16,785 SF 26 10.080 SF 60 7.500 SF 94 7.572 5T 126 I 16,068 SF 27 10,080 SF 81 7,500 SF 95 7,572 SC 129 20,46a SF 78 ' 12.209 SF 62 9,000 SF 96 7.428 SF 130 18.480 SF 29 10,387 Sr 63 7,500 SF 97 7.428 Sr 131 18.480 SF 30 , 8.500 SF 64 23,549 Sr 98 . 7,572 SF 132 19,490 SF 31 8,700 5F 85 9,670 SF 99 I 7,572 Sr 133 I6.480 SF 32 .. 10.187 SF 66 7.200 SF 100 ' 7,510 OF 134 18.ADD SF 33 I 9.000 SF 67 7,200 SF 101 8,262 SF 13S 19.698 SF 34 I 11.821 5F 68 I 7,200 SF 102 B.34B Sr Underground Service Alert Call: TOLL FREE I-800 227-2600 RECOMMENDED TDR APPROVAL BY I LURE . APR. DATE NEER REVISIONS OTT 71 I DRAWN BY I ERECTED BY CNEC%CO BY SEAL CO SEAL APPROVED BY DAZE Ott Of SAN JACINTO _._ ESP. CATE APPROVED BY JAMEs W. 3550 E. Florida AVP. Stile 0 ASSOCIATES Hamel. COHlomlo 92544 909/652-5575, FAX 909/025-6490 = 100' EYP HIE _ 06/05/01 BENCHMARK N/A CITY OF SAN JACINTO TENTATIVE TRACT NO. 29917 38 OT A PART SHEET NC. OF 2 BOLLENBACHER t KELTON, INC. 857—CO—ODI TM A 5762 N 45'02'14" W 92.87 32.87 el Li N 30' 30' Oo 1-•: Li 0 0 rn 0 0 zin r- z 0 L19 00. o in Li ;r z LOT 'H' 21 .14 N 44'57'59" 19 W 315.37' Lo N 77.00' LOT N44'58'02"W 340. 3' 77.00' 77.00' 'F' 77.00' 43 42 'to 41 co 40 . 7665 S.F. c`fi "- 7777 S.F. b 0 • 7777 S.F. eD In 7777 S.F. 9 c0i0 0.18 AC. .... 0 0.18 AC. ' p 0.18 AC. ' ; 0.18 AC. u-) tr, 4 .00' 45.03 1,1 C a 30' 0 0 up z 62.00' z z z 0 O 77.00' 77.00' 77.00' --o in z N THE CITY OF SAN JACINTO, COUNTY OF RIVERSIDE, STATE OF CALIFORNIA TRACT NO. 28858 BEING A SUBDIVISION OF A PORTION OF FARM LOTS 19 AND 21, OF THE LANDS OF THE SAN JACINTO LAND ASSOCIATION, AS SHOWN BY MAP ON FILE IN BOOK 8, PAGE 357, OF MAP RECORDS OF SAN DIEGO COUNTY, CALIFORNIA BLAINE A. WOMER CIVIL ENGINEERING. . . . . .DECEMBER, 2002 PM1203/35-67 PAR I MI 2 N 44'58'02" W 681.53' 77777.0O' 77.00' Li 0.18 AC.SF. '-co 0.18 AC ; 0.18 AC. ,...: O. 0.18 AC. 0 0.18 AC. ' 0.17 AC. 39 =0,, 38 b 37 b 36 b 35 7777 S.F. :E",!(' 7777 S.F. - 7777 S.F.0 1,- 7777 S.F. 7601 S.F. el . 77.0Y .00 0. 77.00' rn 77 0 Li LI Li La .0 za,..3 34 75.26' Oil) c o •sr z Z co in 0 in z 77.0077.00' 77.00' 77.00' 77.00' 75.26' C2 753.26' LOT N4458'02"W 898.86' 'D' 0 -F 80.00' 120.00' Li 33 - `,0 32 7404 S.F. 0,1 8144 S.F. 0.17 AC. 0.19 AC. 1...b 31 02 10,847 S.F. 0.25 AC. 100.6 5 .00 f .,y 73.77' -244.5.1.44t6.9".KR) 44 in 8554 S.F. 0, 0.20 AC. I'11 ." .4.,.....1-.9- ...b'S 74.00' 83.06' Li ;-, 45 b - 8555 S.F. a .°0.20 AC. 2 At - z 83.06' N 45•01'58" E cn —1s3.4. C, °. 103.00' N 45`01'58" E 0 cn °. D. 0 0 P :+1 103.00' 74.00' La p''48 -0 ._-: 7622 S.F. 0, - 0.17 AC. 1,?, in Ai- A-. N44'58'02"W 74.00' 74.00' * .F,.. 1,, 49 .- 7622 S.F. 0 ''-' 0.17 AC. ;;;; ,r) At •.• z 824.06' 74,00' 74.00' y9 50 -0 „„.- 7622 S.F. 01 i-f," 0.17 AC, 60.°D At z 74.00' 74.00' ,, 51 - 7622 S.F. 0. 0.17 AC. F1 0 At A- z 74.00' 74.00' r'''' 52 -02 - 7622 S.F. 0.- ° 0.17 AC. Ki in o At z 74.00' 74.00' 53 .61,9 7622 S.F. 0 P 0.17 AC. Poo tn z 74.00' 50.00' la 1\ 54 ..- 7413 S.F. ,,,0.17 AC. "o o cci z N 75.07---N., 75.00' Li ch 55 N to • N -94 7429 S.F. t"z' P 0.17 AC. 1 p 83.06 65 .6, 7827 S.F. o • 0.18 AC. ,o 0 74.00' Li t ic?, 64 - c4 7628 S.F. 23 o • 0.18 AC. 1'5 in o "9 .1- 74.00' La , ,cp, 63 - o4 7629 S.F. -,-cv ::' 0.18 AC. 0.o ,n0 'el .1". 74.00' Li 41 , 62 A.-c, 7630 S.F. N; Po 0.18 AC. „,,..- •er At. 74.00' 61 7631 S.F.,- cp- 0.18 AC. 0.4 - A-- 4.00 4.1 „,^ 60 css 7633 S.F. - • tn° 0.18 AC. ,o At 74.00' La 59 'UP° '04 7634 S.F. "I " o • 0.18 AC. "i. u.) 0 74.00' Li cr. 58 -co 94 7635 S.F. -..„,c4 P 0.18 AC. '4,-- en 0 74.00' 41 ch 57 r 7636 S.F la 0.18 AC. At \ 1 '0 c‘: c.) W .4( to CD N..0 ,f) 6 3 .6£,Z0.04 N z 74.00' z 74.00' z 50.01' 7 .--- --‘,-.' 4 o fitN., 60.21' z 74.00' = 1094.45' 74.00' z / 74 00' z 74.00' N 44'57'21" W 74.00' = 74.00' 44.94' i� 0 45.06 LOT 7 .2 N44'57'21"W 876.17' 730.50' C ",Z 57.17' "co co 70.00' 70.00 70.00 41 Li 4.1 70.00' e t t E 01 al 0 14 -E3 f3) 15 ",„,.0 .2 16 ID -2 17 "s, .2 18 "cc; 7315 S.F.t4 61 7210 S.F.K; 0 7210 S.F.,,'0 7210 S.F. Ki 0 7210 S.F.Ki 0.17 AC. 0 in 0.17 AC. 0 to 0.17 AC. 0 to 0.17 AC. 0 in 0.17 AC. o - At .... 82.16' Li 70.00' 74.73' • 12 ".,2 c) 797193 S.F. 7,121'40 7508 S.F.0 \cu's 0.18 AC. 0 in 0.17 AC. ° 3 .75' Cl L b "'NCI 1-16c-D \ to ,./0' li-- : % / u,). V4 / (7,7 , ....-- f , -- 0 / V 'Cli \ 01 V:1 a14 / \' / V . \-31 / 4 .41 CP / et \\7-A LYON AVENUE Li 0 in z 0 70.00' 74.73' 70.00' 74.73' I 1 r 1 0 13 7473 S.F. `04 7473 0.17 AC. ° in 0.17 AC. ° "1- "t 74.73' z 74.73' 70.00' 41 " 19 17. 0 ▪ 7210 S.F.,6 in 0.17 AC. 0 70.00' 74.73' cr, "rs4 0 in z 70.00' Li 70.00' 70.00' 70.00 70.00' Li La 41 Li o t 0 cr, a, a, o, r 20 "0 ." 21 cs4 r 22 br "23 g 7210 S.F.,0 7210 S.F. oi 0 7210 S.F. 7210 S.F.05 .) • 0.17 AC. o 0.17 AC. 0 io 0.17 AC. 0 in 0.17 AC. 0 .... A. At At. 74.7 N44 57'21"W 70.00' La 74.73' 979.00' 70.00' 0 rch 9 b r 8 1:, r 7 *O o o N 7473 S.F. 0 0 7473 S.F. 0 0 7473 S.F. 0.17 AC. 'z' to 0,17 AC. 2 4, 0.17 AC. 9 -4 DE ANZA DRIVE 74.73' z z 74.73' LOT '74.73' N 44'57'21" W I 038.34' 70.00' 74.73' Li Li .0., cr, ▪ 6 5 0 7473 S.F. o 7473 • 0.17 AC. ° t4. 0.17 z z 74.73' 855.88' 855.88' Z Zw 70.00' 74.73' in Li 0�i N S.F. 0 o AC. z 74 73' 43.33 C32 La C 0 L17 t 'a Q.T. , .4 .9.... 74 26 * 25 , 5 100.60' 0 0 In o -- (-4LiJ 10 N N 30' 30 La N 0 - IN 0 in 0 0 N 3 .60 9B:277. sOk) 30 7513 S.F. a 0.17 AC. 1 00.72 ' 1/9 N N 44'57'58"W LI 1 29 7296 S.F. 0.17 AC. 103.00. N 44'57 58 tA. 28 7436 S.F. 0.17 AC. r- 1455" 1 4.12 N 44°13'34 27 9170 S.F. 0.21 AC. N N 41) 7379 S.F."' IA 7419 S.F.-' 11255 S.F. in 0.17 AC. 0.17 AC. 4- a d.26 AC. z 0 tr; in 0, 72.00' 74.73' 92.78' 74.73' vs 74.73' 74.81' Li la ecn 0'a., 4 1 P., 3 "0..0 "g 1 0 - 1,40 7473 S.F. O Fzi 7473 S.F. 00 7473 S.F. 0 0 7482 S.F. c:i 0.17 AC. 2 i4-?. 0.17 AC. e ,r) 0.17 AC. ° .4. 0.17 AC. ° At 74.73, 74.73' 330.00 z 74.73' 91 74.83' La z SEE SHEET NO. 2 FOR MONUMENTATION AND EASEMENT NOTES. HEET NO. 3 OF 3 SHEETS CURVE DATA NO. DELTA TANGENT RADIUS LENGTH Cl 14'56'29" 39.34' 300.00' 78.23' C2 07'29'41" 19.65' 300.00' 39.24' C3 15'04'54" 39.71' 300.00' 78.97' C4 4457'56" 124.16' 300.00' 235.43' C5 22'21'17 59.28' 300.00' 117.05' C6 1542'33" 41.39' 300.00' 82.25' C7 15'46'48" 41.58' 300.00' 82.62' C8 07'08'00" 20.57' 330.00' 41.09' C9 0748'28" 22.52' 330.00' 44.97' C10 14'56'28" 43.27' 330.00' 86.06' CII 15'02'06" 43.55' 330.00' 86.59' C12 22'18'20" 65.06' 330.00' 125.47' C13 22'17'17" 53.19' 270.00' 105.03' C14 12'25'19" 35.19' 330.00' 71.55' C15 031714" 9.47' 330.00' 18.93' C16 15'42'33" 45.52' 330.00' 90.48' C17 14'55'48" 35.38' 270.00' 70.36' C18 1542'33" 37.25' 270.00' 74.03' C19 15'46'48" 45.73' 330.00' 90.89' C20 101414" 8.96' 100.00' 17.87' C21 1334'43" 8.33' 70.00' 16.59' C22 35'26'54" 22.37' 70.00' 43.31' C23 36'50'13" 23.31' 70.00' 45.00' C24 2436'41" 15.27' 70.00' 30.07' C25 110'28'31" 100.86' 70.00' 134.97' C26 1014'14" 8.96' 100.00' 17.87' C27 10'14'14" 8.96' 100.00' 17.87' C28 46'05'13" 29.78' 70.00' 56.31' C29 3649'58" 23.31' 70.00' 45.00' C30 2733'53" 17.17' 70.00' 33.68' C31 110'29'04" 1 oo.aa• 70.00' 134.98' C32 10'14'14" 8.96' 100.00' 17.87' C33 00'51'00" 2.23' 300.00' 4.45' C34 19'55'49" 39.31' 300.00' 78.17' LINE DATA NO, BEARING DISTANCE LI N 18'36'40" W 19.79' L2 N 63'53'07" E 4.97' L3 N 89'59'47" W 2 1 . 2 3 ' L4 N 00'00'13" E 21.20' L5 N 139'36'30" E 21.37' L6 N 00'02'00" E 21.21' L7 N 00'08'08" E 3 5 . 34' L8 N 45'00'44" E 29.97' L9 N 55'12'15" W 41.04' Lb N 55'16'16" E 37.15' Li 1 N 55'16'16 E 3.89' L12 N 55'16'16" E 41.04' L13 N 34'47'49" E 41.04' L14 N 00'02'00" E 35.36' L15 N 89'57'39" W 3 5.3 6 ' Li 6 N 3443'07" W 29.97' Li 7 N 34'43'07" W 1 1 .07' L18 N 34'43'07" W 41.04' Li 9 N 4457'21" W 55.00' L20 N 44'57'46" E 17.11' L21 N 45'02'02" E 49.40' L22 N 45'02'02" E 15.63' L23 N 4502'02" E 65.02' L24 N 44'57'21" W 23.08' L25 N 44'57'46" E 129.91' L26 N 63'53'07" E 14.81' L27 N 22'3629" E Al 79' GRAPHIC SCALE NORTH 120 240 ( IN FEET ) 1 Inch 90 B. LINE DATA NO. BEARING DISTANCE D1 N 45'02'14" W €92.87' M&RI D2 N 00'06'08" E 35,34' €35.361 M w to N Cr-", co wz t0 N z N N N• 0 M en w in 25'* z M ORIG. R/W '44- w * USED TO ESTABLISH m z LOT LINES BY PRORATION o V1 a m m M wz 0 GRAPHIC SCALE ( IN FEET ) Inch = 200 ft. NORTH €€N44'58'42"W 3332.71'II €N44'58'43"W 3332.93'I €686.851I €686.861 €€2010.48'II €2I10.57'1 R.S. 93/11 z O EASEMENTS NOTES: N 44'57'21" W €915.001 FARM LOT 17 €€686.28'II €686.33'I 1970.00' M&RI UN 44'57'21" W 3331.42'II Im of M Iw In I; 4 r*- X N 44'57'21" € 55.00' I A IN THE CITY OF SAN JACINTO, COUNTY OF RIVERSIDE, STATE OF CALIFORNIA TRACT NO. 24142 BEING A SUBDIVISION OF A PORTION OF FARM LOTS 19 AND 21, OF THE LANDS OF THE SAN JACINTO LAND (ASSOCIATION,AS SHOWN BY MAP ON FILE IN BOOK 8, PAGE 357, OF MAP RECORDS OF SAN DIEGO COUNTY, CALIFORNIA BLAINE A. WOMER CIVIL ENGINEERING. . .DECEMBER, 2002 11 RAMONA [[N44'58'36"W 3332.97']] [N44'58'47"W 3332.89'] €€1072.8611 €1072.90'1072.92'» �' 661.78' 661.86' 11661.85' M&RII(\ (2010.14') €144.00 EI7 1 0 TfACCT©-� 2b N MB 290/743-7(t M 1125.27' M&RI. 1 D2 61.03' -17 €61.25'I-� N44'57'59' WI N 44'57'21" W 29.97' PM 203/65-67) €330 67'II I €N44' 58'02' N €N4o'57'59"W 0 (0 008.8411 z 12008.99'I 2008.56') I €€66 •281I €661.331- .. = 661.28166133000 1038.84' TRACT PAC 211 k©=9 220 / le -21 MB 244/ 1J ©-1 (AMENDED) BOULEVARD ((N44'58'26"W 3332.91')) <N45'18'55"W 3332.79'> €€1333.0211 €1333.15'I[[1333.11']] €€1322.23'II 11322.361 z SEARCHED FD. NOTHING ESTABLISHED BY PROPORTION. 02' FARM LOT 23 €€1322.58'II €1322.66'I N 44'57'14" W 3331.65'I (N45'22'24"W) [N44'5706"W 3331.60'] <N45'17'20"W> ((44'57'26"W)) DE ANZA DRIVE FOUND MONUMENT DESCRIPTIONS AN EASEMENT IN FAVOR OF SOUTHERN SIERRAS POWER COMPANY FOR UTILITIES AND INCIDENTAL PURPOSES PER DEED RECORDED FEBRUARY 25, 1925 IN BOOK 630, PAGE 237, OF DEEDS, RIVERSIDE COUNTY RECORDS. A RIGHT OF WAY FOR ROADS RUNNING PARET.I,FL WITH CENTRAL AVENUE, ALONG THE OUTER LINES OF THE TWO TIERS OF LOTS BORDERING ON SAID AVENUE, OF THE WIDTH OF 30 FEET ON EACH SIDE OF SAID LINES, ALSO A RIGHT OF WAY OVER A STRIP OF LAND 30 FEET WIDE ON EACH SIDE OF THE SECTION AND QUARTER SECTION LINES FOR ROAD OR FOR DITCHES OR PIPES FOR CONDUCTING AND DISTRIBUTING WATER, AS RESERVED IN DEED FROM A. 0. PORTER, ET AL, TRUSPL.ES. A PERPETUAL EASEMENT FOR A RIGHT OF WAY FOR THE CONSTRUCTION, INSTALLATION, OPERATION, MATENANCE, ECT., OF PIPE LINES AS CONDEMNED BY THE UNITED STATES OF AMERICA AND CONTAINED IN THE FINAL JUDGMENT AND DECREE OF CONDEMNATION NO. 4880-WM, CIVIL DISTRICT COURT OF THE UNITED STATES, IN AND FOR THE SOUTHERN DISTRICT OF CALIFORNIA, CENTRAL DIVISION, A CERT11I.D COPY OF WHICH WAS RECORDED NOVEMBER 4, 1949 IN THE BOOK 1121 PAGE 442 OF OFFICIAL RECORDS OF RIVERSIDE COUNTY, CALIFORNIA 10. SEARCHED FOUND NOTHING, ESTABLISHED BY PROPORTION. 1" I.P. W/ RIV. CO. SURVEYOR TAG DN. 15" IN WELL PER R.S. 76/31-36, M.B. 220/19-22, M.B. 230/19-21, M.B. 244/10-13, M.B. 289/74-76 & PM 203/65-67. 1" I.D. I.P. W/PLASTIC PLUG W/30'D' NAIL, UNABLE TO READ, FLUSH, FOR THE CL INT, PER PM 203/65-67 NAIL & TAG, "NBS RP", FLUSH PER M.B. 289/74-76. 1" I.D. I.P., W/ TAG RCE 26406 DN. 5" PER M.B. 289/75-76. FD. HOLE IN PAVEMENT W/NAIL CROSS -TIES, ACCEPTED CROSS -TIE LOCATION AS CL INT PER PM 203/65-67 1" I.D. I.P. W/ TAG RCE 26406, FLUSH, PM 203/65-67 1 1/2" I.D. I.P. W/ TAG RCE 26406 DN. 18", PER M.B. 289/74-76. NAIL & TAG "LS 6054" ON TOP OF 5' BLOCK WALL, PM 203/65-67. 1\2" RE -BAR W/PLASTIC PLUG STAMPED "LS 6054", DN. 10" UNDER WOOD FENCE, PER PM 230/65-67 1" I.D. IRON PIPE W/ PLASTIC PLUG STAMPED LS 3291, FLUSH PER P.M. 203/65- 67. 1" I.P., FLUSH TAGGED "LS 6054" NO REF,ACCEPTED AS SOUTH WEST CORNER OF TR. 28858-1. PER M.B. 289/74-76. I- W 14.1 I- N w M N c0 N N O 0 O p in in M zzTv"' w 0 A O Le) • Z� N ^ w �w 0 (0 SHEET NO. 2 OF 3 SHEETS EXPRESSWAY SURVEYOR'S NOTES: THE BASIS FOR BEARINGS FOR THIS MAP IS THE CENTERLINE OF POTTER ROAD TAKEN AS N 44'57'46" E PER PM 203/65-67 2. TRACT NO. 28858 HAS 65 LOTS PLUS LOTS 'A' THROUGH 'H', INCLUSIVE. 3. TRACT NO. 28858 CONTAINS 16.53 GR. ACRES WITHIN THE DISTINCTIVE BORDER. 4. ALL PUBLIC UTILITIES AND PUBLIC SERVICES INSTALLED WITHIN THIS TRACT SHALL BE PLACED UNDERGROUND. 5. 1" I.D. IRON PIPE W/ PLASTIC PLUG STAMPED "LS 7843" SET FLUSH AT ALL REAR LOT CORNERS, UNLESS NOTED OTHERWISE. 6. LOT CORNERS ADJACENT TO STREETS REFERENCED BY LEAD & TAG, "LS 7843" ON TOP OF CURB AT EXTENSION OF LOT LINES. 7. 0 INDICATES 1' I.D. IRON PIPE W/ PLASTIC PLUG STAMPED LS 7843 SET FLUSH UNLESS OTHERWISE NOTED. 8. Q INDICATES RIV. CO. STD. 'B' MONUMENT W/ BRASS DISC STAMPED LS 7843 SET FLUSH UNLESS OTHERWISE NOTED. 9. • INDICATES FOUND MONUMENT, SIZE AND DESCRIPTION AS NOTED. 10. ( DATA PER R.S. 17/71, UNLESS 11. [ ] DATA PER R.S. 83/3. 12. < > INDICATES RECORD DATA PER P.M. 87/16. 13. (( )) INDICATES RECORD DATA PER R.S. 76/31-36. 14. [[ ]] INDICATES RECORD DATA PER M.B. 220/19-22 & M.B. 244/10-13. 15. « » INDICATES RECORD DATA (OR CALCULATED FROM RECORD DATA) PER M.B. 220/19-22, M.B. 230/19-21, AND M.B. 244/ 1 0-13. 16. € I INDICATES RECORD DATA PER M.B. 289/74-76. INDICATES RECORD OTHERWISE NOTED. INDICATES RECORD 17. ALL EXISTING EASEMENTS SHOWN ARE LOCATED BY BEST AVAILABLE RECORD AND NOT BY ANY FIELD SURVEY TO DATE. 18. 19. M&R 20. €€ II 21. S.F.N. INDICATES RESTRICTED ACCESS. INDICATES MEASURED AND RECORD AS INDICATED. INDICATES RECORD AND MEASURED PER PM 203/65-67 INDICATES SEARCHED, FOUND NOTHING. OWNER'S STATEMENT WE HEREBY STATE THAT WE ARE THE OWNERS OF THE LAND INCLUDED WITHIN THE SUBDIVISION SHOWN HEREON; THAT WE ARE THE ONLY PERSONS WHOSE CONSENT IS NECESSARY TO PASS A CLEAR TITLE TO SAID LAND; THAT WE CONSENT TO THE MAKING AND RECORDING OF THIS SUBDIVISION MAP AS SHOWN WITHIN THE DISTINCTIVE BORDER LINE. WE HEREBY DEDICATE TO THE PUBLIC FOR STREET AND PUBLIC UTILITY PURPOSES, LOTS 'A' THROUGH 'E'. WE ALSO HEREBY DEDICATE TO THE CITY OF SAN JACINTO LOTS 'F' AND 'G' FOR OPEN SPACE AND DRAINAGE PURPOSES. RAMONA BLVD, LLC A CALIFORNIA LIMITED LIABILITY COMPANY BY: MICHAEL G. RECORD, ADMINISTRATIVE GENERAL MANAGER TRUSTEE FIRST AMERICAN TITLE INSURANCE COMPANY, A CALIFORNIA CORPORATION, TRUSTEE UNDER DEED OF TRUST RECORDED APRIL, 12, 1999 AS INSTRUMENT NO. 154140 AND RERECORDED AUGUST 13, 1999 AS INSTRUMENT NO. 365257, BOTH OFFICIAL RECORDS OF RIVERSIDE COUNTY, CALIFORNIA. GARY FRANCIS ASSISTANT VICE PRESIDENT ASSISTANT SECRETARY NOTARY ACKNOWLEDGEMENT STATE OF CALIFORNIA ) COUNTY OF RIVERSIDE) S.S. ON , BEFORE ME, NOTARY PUBLIC, PERSONALLY APPEARED MICHAEL G. RECORD, PERSONALLY KNOWN TO ME (OR PROVED TO ME ON THE BASIS OF SATISFACTORY EVIDENCE) TO BE THE PERSON WHOSE NAME IS SUBSCRIBED TO THE WITHIN INSTRUMENT AND ACKNOWLEDGED TO ME THAT HE EXECUTED THE SAME IN HIS AUTHORIZED CAPACITY, AND THAT BY HIS SIGNATURE ON THE INSTRUMENT THE PERSON OR THE ENTITY UPON BEHALF OF WHICH THE PERSON ACTED, EXECUTED THE INSTRUMENT. WITNESS MY HAND AND OFFICIAL SEAL. COUNTY, CALIFORNIA MY COMMISSION EXPIRES NOTARY ACKNOWLEDGEMENT STATE OF CALIFORNIA ) COUNTY OF RIVERSIDE) S.S. ON , BEFORE ME NOTARY PUBLIC, PERSONALLY APPEARED PERSONALLY KNOWN TO ME (OR PROVED TO ME ON THE BASIS OF SATISFACTORY EVIDENCE) TO BE THE PERSON(S) WHOSE NAME(S) IS/ARE SUBSCRIBED TO THE WITHIN INSTRUMENT AND ACKNOWLEDGED TO ME THAT HE/SHE/THEY EXECUTED THE SAME IN HIS/HER/THEIR AUTHORIZED CAPACITY(IES), AND THAT BY HIS/HER/THEIR SIGNATURE(S) ON THE INSTRUMENT THE PERSON(S) OR THE ENTITY UPON BEHALF OF WHICH THE PERSON(S) ACTED, EXECUTED THE INSTRUMENT. WITNESS MY HAND AND OFFICIAL SEAL COUNTY, CALIFORNIA MY COMMISSION EXPIRES THE CITY OF SAN JACINTO, COUNTY OF RIVERSIDE, STATE OF CAI TRACT NO. 2 858 FORNIA BEING A SUBDIVISION OF A PORTION OF FARM LOTS 19 AND 21, OF THE LANDS OF THE SAN JACINTO LAND ASSOCIATION, AS SHOWN BY MAP ON FILE IN BOOK 8, PAGE 357, OF MAP RECORDS OF SAN DIEGO COUNTY, CALIFORNIA BLAINE A. WOMER CIVIL ENGINEERING. . .DECEMBER, 2002 TAX COLLECTOR'S CERTIFICATE I HEREBY CERTIFY THAT ACCORDING TO THE RECORDS OF THIS OFFICE, AS OF THIS DATE, THERE ARE NO LIENS AGAINST THIS PROPERTY SHOWN ON THE WITHIN MAP FOR UNPAID STATE, COUNTY, MUNICIPAL, OR LOCAL TAXES OR SPECIAL ASSESSMENTS. EXCEPT TAXES OR SPECIAL ASSESSMENTS COLLECTED AS TAXES NOW A LIEN BUT NOT YET PAYABLE, WHICH ARE ESTIMATED TO BE $ DATED: PAUL McDONNEL, COUNTY TAX COLLECTOR BY: DEPUTY TAX BOND CERTIFICATE I HEREBY CERTIFY THAT A'BOND IN THE SUM OF $ HAS BEEN EXECUTED AND FILED WITH THE BOARD OF SUPERVISORS OF THE COUNTY OF RIVERSIDE, CALIFORNIA, CONDITIONED UPON THE PAYMENT OF ALL TAXES, STATE, COUNTY, MUNICIPAL OR LOCAL, AND ALL SPECIAL ASSESSMENTS COLLECTED AS TAXES WHICH AT THE TIME OF FILING OF THIS MAP WITH THE COUNTY RECORDER ARE A LIEN AGAINST SAID PROPERTY BUT NOT YET PAYABLE AND SAID BOND HAS BEEN DULY APPROVED BY SAID BOARD OF SUPERVISORS. DATED: 2DD3 DATED: GERALD A. MALONEY CLERK OF THE BOARD OF SUPERVISORS �003 CASH TAX BOND PAUL McDONNEL COUNTY 7AX COLLECTOR BY: BY. DEPUTY DEPUTY PUBLIC WORKS DIRECTOR'S APPROVAL THE STREET DEDICATIONS AND UTILITY EASEMENTS SHOWN ON THE WITHIN ANNEXED MAP ARE HEREBY APPROVED THIS -DAY OF , 2003. PUBLIC WORKS DIRECTOR, CITY OF SAN JACINTO SOILS REPORT A PRELIMINARY SOILS REPORT HAS BEEM PREPARED BY INLAND FOUNDATION ENGINEERING INC. ON THE 19TH DAY OF OCTOBER, 1998, AS REQUIRED BY THE HEALTH AND SAFTEY CODE OF CALIFORNIA, SECTION 17953. SIGNATURE OMISSIONS PURSUANT TO SECTION 66436 OF THE ;SUBDIVISION MAP ACT, THE SIGNATURES OF THE FOLLOWING OWNERS OF EASEMENTS AND/OR OTHER INTERESTS HAVE BEEN OMITTED: AN EASEMENT IN FAVOR OF SOUTHERN SIERRAS POWER COMPANY FOR UTILITIES AND INCIDENTAL PURPOSES PER D(+ED RECORDED FEBRUARY 25, 1925 IN BOOK 630, PAGE 237, OF DEEDS, RIVERSIDE COUNTY RECORDS. 2. A RIGHT OF WAY FOR ROADS RUNNING PARELLEL WITH CENTRAL AVENUE, ALONG THE OUTER LINES OF THE TWO TIERS OF LOTS BORDERING ON SAID AVENUE, OF THE WIDTH OF 30 FEL'T ON EACH SIDE OF SAID LINES, ALSO A RIGHT OF WAY OVER A STRIP OF ' ND 30 FEET WIDE ON EACH SIDE OF THE SECTION AND QUARTER SECTION LIES FOR ROAD OR FOR DITCHES OR PIPES FOR CONDUCTING AND DISTRIBUTIN7 WATER, AS RESERVED IN DEED FROM A. 0. PORTER, ET AL, TRUSTEES. 3. A PERPETUAL EASEMENT FOR A RIGHT OF WAY FOR THE CONSTRUCTION, INSTALLATION, OPERATION, MATENA,MCE, ECT., OF PIPE LINES AS CONDEMNED BY THE UNITED STATES OF AMERI(A AND CONTAINED IN THE FINAL JUDGMENT AND DECREE OF CONDEMNATION NQ. 4880-WM, CIVIL DISTRICT COURT OF THE UNITED STATES, IN AND FOR THE SOUTHERN DISTRICT OF CALIFORNIA, CENTRAL DIVISION, A CERTIFIED COPY OF WHICH WAS RECORDED NOVEMBER 4, 1949 IN THE BOOK 1121 PAGE 442 OF OFFICIAL RECORDS OF RIVERSIDE COUNTY, CALIFORNIA HEET NO. 1 OF 3 SHEETS RECORDER'S STATEMENT FILED THIS DAY OF 2003 AT M IN BOOK OF MAPS AT PAGES AT THE REQUEST OF THE CITY CLERK. NO. FEE GARY L. ORSO, COUNTY ASSESSOR -CLERK -RECORDER BY: DEPUTY SUBDIVISION GUARANTEE FIRST AMERICAN TITLE INSURANCE COMPANY SURVEYOR'S STATEMENT I HEREBY STATE THAT I AM A LICENSED LAND SURVEYOR OF THE STATE OF CALIFORNIA AND THAT THIS MAP CONSISTING OF (3) THREE SHEETS, CORRECTLY REPRESENTS A SURVEY MADE UNDER MY SUPERVISION DURING SEPTEMBER, 2002; THAT ALL MONUMENTS SHOWN HEREON ACTUALLY EXIST AND THEIR POSITIONS ARE CORRECTLY SHOWN, OR WILL BE IN ACCORDANCE WITH THE TERMS OF THE MONUMENT AGREEMENT FOR THE MAP. THE MONUMENTS WILL BE SUFFICIENT TO ENABLE THE SURVEY TO BE RETRACED. THE SURVEY IS TRUE AND COMPLETE AS SHOWN. DATED THIS DAY OF , 2003 LAND SCOTT E. BRIMHALL EXPIRES *, iz-31-os LS 7843 EXP. DATE 12-31-06 9, `1'o. c>' 751 oc' CITY ACCEPTANCE STATEMENT THE CITY OF SAN JACINTO, COUNTY OF RIVERSIDE, STATE OF CALIFORNIA, BY AND THROUGH ITS DULY AUTHORIZED OFFICERS AT A REGULAR MEETING OF 2002, HEREBY APPROVES SAID FINAL MAP AND ACCEPTS THE DEDICATIONS SHOWN HEREON FOR PUBLIC ROAD, AND PUBLIC UTILITY PURPOSES. THE ACCEPTANCE OF THE OFFER OF CITY STREETS IS CONTINGENT UPON THE COMPLETION OF ALL STREET IMPROVEMENTS. DATED THIS DAY OF ,2003. MAYOR CITY OF SAN JACINTO ATTEST CITY OF SAN JACINTO PLANNING COMMISSION STATEMENT THIS MAP, TRACT NO. 28858 IS A PORTION OF THE ORIGINAL TENTATIVE MAP OF TRACT NO. 28858. SAID TENTATIVE MAP WAS APPROVED BY THE CITY OF SAN JACINTO PLANNING COMMISSION IN ACCORDANCE WITH THE LAW IN A DULY AUTHORIZED MEETING HELD CITY OF SAN JACINTO, CALIFORNIA SECRETARY, CITY OF SAN JACINTO PLANNING COMMISSION DATED THIS DAY OF 2003. CITY ENGINEER'S STATEMENT I HEREBY STATE THAT I HAVE EXAMINED THE WITHIN ANNEXED MAP: THAT THE SUBDIVISION SHOWN HEREON IS SUBSTANTIALLY THE SAME AS IT APPEARED ON THE TENTATIVE MAP: THAT ALL THE PROVISIONS OF THE SUBDIVISION MAP ACT AND OF' THE CITY OF SAN JACINTO ORDINANCE NO. 673 HAVE BEEN COMPILED WITH AND I AM SATISFIED THAT THIS MAP IS TECHNICALLY CORRECT AS SHOWN. DATED THIS DAY OF , 2003. ACTING CITY ENGINEER CITY OF SAN JACINTO, CALIFORNIA RCE RVPUBVSB\6513I8 EXHIBIT "D" [intentionally left blank] Exhibit D EXHIBIT "E" (Development Impact Fees) Type Amount Payment Timing Public Buildings $65.00/acre Final Occupancy Issuance Regional Transportation $820.00/acre Final Occupancy Issuance Local Transportation $500.00/acre Final Occupancy Issuance Flood Control Improvements Area 1 Area 2 $5,990/acre $4,975/acre Final Occupancy Issuance Traffic Signalization SF Units MF Units Subdivision Commercial $150.00/DU $100.00/DU $2,700/acre $2,700/acre Final Occupancy Issuance Carpool Mitigation $90.00/DU Final Occupancy Issuance Water Capital Improvement Residential Commercial $2,930/DU Same as EMWD Final Occupancy Issuance City Sewer Fee Residential Commercial $200.00/DU $200.00/ 15 PFU Final Occupancy Issuance Public Safety Structures Residential Commercial $50.00/DU $0.01/sf of lot area Final Occupancy Issuance Public Safety Equipment Residential Commercial $10.00/DU $0.01/sf of lot area Final Occupancy Issuance Park Fee SF Detached SF Attached 2-4 Units 5+ Units Mobilehomes $525.24/DU $314.46/DU $460.62/DU $402.48/DU $290.52/DU Final Occupancy Issuance Undergrounding Fee $50.00/lineal foot (street frontage) N/A Installed by OWNER Street Trees $250.00/tree N/A Installed by OWNER Building Permit Surcharge 1% of Total Permit Fee (minimum of $1.00, maximum of $50.00) Final Occupancy Issuance Fire Station Mitigation Fee Final Occupancy Issuance RVPUBUSB\651318 Exhibit E Residential Commercial/Industrial $577.00/DU $527.00 (Rancho San Jacinto) $0.34/sf of building area Current Planning Residential Commercial $50.00/DU $0.02/sf of building area Final Occupancy Issuance Advanced Planning Residential Commercial $150.00/DU $0.06/sf of building area Final Occupancy Issuance Lighting, Landscaping and Maintenance District $1.00/linear foot (street frontage) Payable at time of recordation of final map Fire Hydrant Paint and Blue Dot $200.00 minimum, up to four $50.00 for each additional Optional Fire Sprinklers $160.00 + $0.50/head Final Occupancy Issuance Water Meters 3/4" 1" 1-3/4" 2" $400.00 each $500.00 each $750.00 each $1,000.00 each Payable at Request RVPUBUSB\651318 Exhibit E TO: FROM: SUBJECT: AGENDA ITEM 5. April 24, 2003 Honorable Mayor and Members of the City Council Honorable Chairman and Members of the Planning Commission Tim Hults, Community Development Director Development Agreement No. 03-03, a Development Agreement by and between the City of San Jacinto and Empire Homes establishing certain financial arrangements for the following developments; Tract 29314 - located on the southwest corner of Meridian Street and Washington Avenue; Tentative Tract 30644 — located on the west side of San Jacinto Avenue, approximately 600 feet south of the Ramona Expressway; Tentative Tract 31035 — located on the west side of San Jacinto Avenue, approximately 2000 feet south of the Ramona Expressway; Vacant 60 acre site for future single family residential uses located on the northwest corner of Main Street and the Ramona Expressway. RECOMMENDATION: Staff recommends that the: 1. Planning Commission adopt Resolution PC 03- recommending approval of a Development Agreement 03-03; and 2. City Council introduce Ordinance No. approving Development Agreement 03-03. BACKGROUND: The processing and implementation of development agreements is authorized by California Government Code Section 65864 through 65869.5. In addition, on July 18, 2002, the City Council adopted rules and regulations concerning the processing of development agreements. The rules and regulations prescribe what may be included in a development agreement, a process for consideration (public hearings before the Planning Commission and City Council), the findings to be made to approve the agreement, the process required to amend the agreement, and a periodic review procedure. Approvals City Manager: Finance Director: Page 1 of 4 ENVIRONMENTAL ANALYSIS: The approval of this Development Agreement is exempt from further review under the California Environmental Quality Act because, pursuant to Title 14 of the California Code of Regulations section 15378, subdivision (a), the approval of this Agreement does not have the potential for resulting in either a direct physical change in the environment, or a reasonably foreseeable indirect change in the environment because it does not attempt to affect the physical development of property. DISCUSSION: The proposed development agreement would cover and pertain to each of the projects noted above. The following is a description of each of the projects; Tract 29314 is located on the southwest corner of Meridian Street and Washington Avenue. This development includes a total of 91 lots, 55 of which are currently under construction. The development agreement would pertain to the remaining 36 vacant lots. However, building permit applications have been submitted for these lots, which could be issued before the effective date of this agreement. As such, the agreement would not apply to those units. Tentative Tract 30644 is located on the west side of San Jacinto Avenue, approximately 600 feet south of the Ramona Expressway. This project would generate 149 single family residential lots. Tentative Tract 31035 is located on the west side of San Jacinto Avenue, immediately south of Tentative Tract 30644. This subdivision would accommodate 77 single family residential lots and has not yet been approved by the Planning Commission. The final project the developer is seeking protection on is 60 acre site located on the northwest corner of Ramona Expressway and Main Street. This project could accommodate up to 300 homes. At this time, no entitlement application has been submitted. The development agreement only defines the basic financial terms of each project. The agreement does not lock in any development rights, standards or existing City fees for the individual projects. The agreement merely exempts the projects from the payment of the TUMF. If the Council elects to enter into the development agreement, future Councils will be bound by the terms and provisions of this agreement for 10 years. Page 2 of 4 In exchange for exempting the projects from the future regional fee, the project proponent has agreed to pay $3,200 per dwelling unit. If the Council authorizes protection for the approved, unapproved and unsubmitted projects, the projects would generate Development Agreement fees ($3,200/Unit) in the amount $1,797,400. If the Council opts not to cover the unapproved/unsubmitted projects, the remaining approved lots (185) would generate Development Agreement fees in the amount of $592,000. Whether or not to include the unapproved projects is a policy decision by the Council, as State Law and the City's Development Agreement guidelines are silent with regard to this issue. Furthermore, the project proponent has agreed to cooperate in the formation of a community facilities districts "CFD") for the purpose of financing the provision of certain public services to the Project. The public services may include fire and police services and road maintenance services within such CFD. FINDINGS OF FACT 1. The Development Agreement is consistent with the objectives, policies, general land uses and programs specified in the general plan and any specific plan because the development agreement provides for financial considerations that will ensure adequate services are provided, pursuant to the policies of the General Plan that provide for the exploration of new funding sources and that the costs for new public facilities and services shall be borne by the new users rather than by the existing community. 2. The Development Agreement is compatible with the uses authorized in, and the regulations prescribed for, the land use district in which the real property is located because as it provides a financing tool for the provision of public services that are necessary to serve the future development of the site, pursuant to the policies of the General Plan that provide for the exploration of new funding sources and that the costs for new public facilities and services shall be borne by the new users rather than by the existing community. 3. The Development Agreement is in conformity with public convenience, general welfare and good land use practice as it provides for as it provides a financing tool for the provision of public services that are necessary to serve the future development of the site, pursuant to the policies of the General Plan that provide for the exploration of new funding sources and that the costs for new public facilities and services shall be borne by the new users rather than by the existing community. Page 3 of 4 4. The Development Agreement will be beneficial to the health, safety and general welfare as it sets forth a funding mechanism to provide for adequate public services to serve the future development of the site, pursuant to the policies of the General Plan that provide for the usage of new funding sources and that the costs for new public facilities and services shall be borne by the new users rather than by the existing community. The Development Agreement will not adversely affect the orderly development of property or the preservation of property values as it aids in the implementation of the City's General Plan and Zoning Ordinance through the financing of public facilities and services, as it provides the funds needed to cover the costs for new public facilities and services shall be borne by the new users rather than by the existing community. ATTACHMENTS: Planning Commission Resolution City Council Ordinance Development Agreement Page 4 of 4 RESOLUTION NO. PC A RESOLUTION OF THE PLANNING COMMISSION OF THE CITY OF SAN JACINTO, CALIFORNIA, RECOMMENDING APPROVAL OF A DEVELOPMENT AGREEMENT BETWEEN THE CITY OF SAN JACINTO AND EMPIREHOMES, INC. WHEREAS, Resolution No. 2358 of the City Council of the City of San Jacinto provides for the consideration of development agreements as permitted by Government Code Sections 65864 through 65869.5 inclusive; and WHEREAS, Empire Homes ("Owner") has submitted an application for a development agreement ("Application") for consideration regarding the development of certain real property in which the Owner has a legal or equitable interest, which development agreement is attached hereto as Exhibit "A" and incorporated by reference herein ("Development Agreement"); and WHEREAS, the Application was viewed, studied, and found to comply with the California Environmental Quality Act ("CEQA") as more fully described below; and WHEREAS, on April 24, 2003, the Planning Commission of the City of San Jacinto ("Commission") conducted a duly noticed public hearing on the Application at which time all persons wishing to testify in connection with the Application were heard and the Application was comprehensively reviewed; and WHEREAS, all other legal prerequisites to the adoption of this Resolution have occurred. NOW, THEREFORE, THE PLANNING COMMISSION OF THE CITY OF SAN JACINTO RESOLVES AS FOLLOWS: SECTION 1. Based on the entire record before the Commission, all written and oral evidence presented to the Commission, and the findings set forth in this Resolution, the Commission recommends that the City Council of the City of San Jacinto approve the Development Agreement as set forth in Exhibit "A" and incorporated by reference herein, based upon the following findings: A. The Development Agreement is consistent with the objectives, policies, general land uses and programs specified in the general plan and any specific plan because the development agreement provides for financial considerations that will ensure adequate services are provided, pursuant to the policies of the General Plan that provide for the exploration of new funding sources and that the costs for new public facilities and services shall be borne by the new users rather than by the existing community. RVPUBUSB\651187 B. The Development Agreement is compatible with the uses authorized in, and the regulations prescribed for, the land use district in which the real property is located because as it provides a financing tool for the provision of public services that are necessary to serve the future development of the site, pursuant to the policies of the General Plan that provide for the exploration of new funding sources and that the costs for new public facilities and services shall be borne by the new users rather than by the existing community. C. The Development Agreement is in conformity with public convenience, general welfare and good land use practice as it provides for as it provides a financing tool for the provision of public services that are necessary to serve the future development of the site, pursuant to the policies of the General Plan that provide for the exploration of new funding sources and that the costs for new public facilities and services shall be borne by the new users rather than by the existing community. D. The Development Agreement will be beneficial to the health, safety and general welfare as it sets forth a funding mechanism to provide for adequate public services to serve the future development of the site, pursuant to the policies of the General Plan that provide for the usage of new funding sources and that the costs for new public facilities and services shall be borne by the new users rather than by the existing community. E. The Development Agreement will not adversely affect the orderly development of property or the preservation of property values as it aids in the implementation of the City's General Plan and Zoning Ordinance through the financing of public facilities and services, as it provides the funds needed to cover the costs for new public facilities and services shall be borne by the new users rather than by the existing community. SECTION 2. Based on the entire record before the Commission and all written and oral evidence presented to the Commission, the Commission finds the Development Agreement complies with the California Environmental Quality Act for the following reasons: A. Pursuant to a determination by the CITY that the approval of this Development Agreement is exempt from further review under the California Environmental Quality Act because, pursuant to Title 14 of the California Code of Regulations section 15378, subdivision (a), the approval of this Agreement does not have the potential for resulting in either a direct physical change in the environment, or a reasonably foreseeable indirect change in the environment because it does not attempt to affect the physical development of property. B. Pursuant to a determination by the CITY that the approval of this Development Agreement is exempt from further review under the California Environmental Quality Act because, pursuant to Title 14 of the California Code of RVPUBUSB\651187 Regulations section 15378, subdivision (b)(4), the approval of this Agreement is not a project because it is merely the creation of government funding mechanisms or other governmental fiscal activity. C. Pursuant to Title 14 of the California Code of Regulations section 15273, CEQA does not require further environmental review because this Agreement constitutes the establishment, modification, structuring or restructuring of charges by the City that the City Council hereby finds are necessary for the purpose of meeting police, fire and road maintenance operating expenses and obtaining funds necessary for capital projects in order to maintain service within existing service areas of the City. D. Based on recent meetings, including a recent joint Planning Commission and City Council meeting, the City requires additional funding in order to meet fire and police public safety and road maintenance needs within, among other areas, the Property. E. The physical effects, if any, of the Project have been or will be separately analyzed pursuant to CEQA and therefore, this Agreement is exempt from further review under CEQA. Therefore, the Planning Commission recommends that the City Council determine that the Development Agreement is exempt from CEQA and direct staff to file a Notice of Exemption upon adoption of the ordinance approving the Development Agreement. SECTION 3. The location and custodian of the documents and any other material which constitute the record of proceedings upon which the Planning Commission based its decision is as follows: Community Development Director, City of San Jacinto Planning Department, 248 E. Main Street, San Jacinto, CA 92583. (909) 487-7330. PASSED, APPROVED AND ADOPTED THIS 24TH DAY OF APRIL, 2003. Planning Commission Chairperson ATTEST: Planning Commission Secretary RVPUBUSB\651187 STATE OF CALIFORNIA ) COUNTY OF RIVERSIDE)ss CITY OF SAN JACINTO ) ORDINANCE NO. AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF SAN JACINTO, CALIFORNIA APPROVING A DEVELOPMENT AGREEMENT BETWEEN THE CITY OF SAN JACINTO AND EMPIRE HOMES, INC. THE CITY COUNCIL OF THE CITY OF SAN JACINTO DOES ORDAIN AS FOLLOWS: Section 1. On April 24, 2003, the Planning Commission conducted a joint public hearing with the City Council and recommended approval of a proposed Development Agreement, as shown on Exhibit "A" attached hereto and incorporated by reference herein. Section 2. At said joint public hearing, the City Council found that: A. The Development Agreement is consistent with the objectives, policies, general land uses and programs specified in the general plan and any specific plan because the development agreement provides for financial considerations that will ensure adequate services are provided, pursuant to the policies of the General Plan that provide for the exploration of new funding sources and that the costs for new public facilities and services shall be borne by the new users rather than by the existing community. B. The Development Agreement is compatible with the uses authorized in, and the regulations prescribed for, the land use district in which the real property is located because as it provides a financing tool for the provision of public services that are necessary to serve the future development of the site, pursuant to the policies of the General Plan that provide for the exploration of new funding sources and that the costs for new public facilities and services shall be borne by the new users rather than by the existing community. C. The Development Agreement is in conformity with public convenience, general welfare and good land use practice as it provides for as it provides a financing tool for the provision of public services that are necessary to serve the future development of the site, pursuant to the policies of the General Plan that provide for the exploration of new funding sources and that the costs for new public facilities and services shall be borne by the new users rather than by the existing community. D. The Development Agreement will be beneficial to the health, safety and general welfare as it sets forth a funding mechanism to provide for adequate public services to serve the future development of the site, pursuant to the policies of the General Plan that provide for RVPUB\JSB\651185 the usage of new funding sources and that the costs for new public facilities and services shall be borne by the new users rather than by the existing community. E. The Development Agreement will not adversely affect the orderly development of property or the preservation of property values as it aids in the implementation of the City's General Plan and Zoning Ordinance through the financing of public facilities and services, as it provides the funds needed to cover the costs for new public facilities and services shall be borne by the new users rather than by the existing community. Section 3. Based on the findings contained in this Ordinance, the City Council hereby adopts the Development Agreement attached hereto as Exhibit "A" and incorporated by reference herein. Section 4. This Ordinance shall take effect 30 days after its final passage, except as noted below. This Ordinance and the Development Agreement affected thereby shall not become effective unless and until the City of San Jacinto has received full reimbursement from Applicant for all costs and fess associated with the negotiation, drafting and execution of the Development Agreement. Section 5. The City Council hereby finds that the adoption of the Development Agreement will not have a significant effect on the environment for the following reasons: A. Pursuant to a determination by the CITY that the approval of this Development Agreement is exempt from further review under the California Environmental Quality Act because, pursuant to Title 14 of the California Code of Regulations section 15378, subdivision (a), the approval of this Agreement does not have the potential for resulting in either a direct physical change in the environment, or a reasonably foreseeable indirect change in the environment because it does not attempt to affect the physical development of property. B. Pursuant to a determination by the CITY that the approval of this Development Agreement is exempt from further review under the California Environmental Quality Act because, pursuant to Title 14 of the California Code of Regulations section 15378, subdivision (b)(4), the approval of this Agreement is not a project because it is merely the creation of government funding mechanisms or other governmental fiscal activity. C. Pursuant to Title 14 of the California Code of Regulations section 15273, CEQA does not require further environmental review because this Agreement constitutes the establishment, modification, structuring or restructuring of charges by the City RVPUBVSB\651185 that the City Council hereby finds are necessary for the purpose of meeting police, fire and road maintenance operating expenses and obtaining funds necessary for capital projects in order to maintain service within existing service areas of the City. D. Based on recent meetings, including a recent joint Planning Commission and City Council meeting, the City requires additional funding in order to meet fire and police public safety and road maintenance needs within, among other areas, the Property. E. The physical effects, if any, of the Project have been or will be separately analyzed pursuant to CEQA and therefore, this Agreement is exempt from further review under CEQA. Therefore, staff is directed to file a Notice of Exemption upon adoption of this Ordinance. Section 6: The City Clerk shall certify the adoption of this ordinance and cause the same to be published in he County of Riverside, State of California. Introduced at a regular meeting of the City Council on the 24th day of April, 2003 by the following vote: AYES: NAYS: ABSENT: ABSTAIN: City of San Jacinto by Jim Ayres, Mayor ATTEST: Dorothy L. Chouinard, City Clerk RVPUBUSB\651185 Recorded at request of: Clerk, City Council City of San Jacinto When recorded return to: ) City of San Jacinto ) 201 East Main Street ) San Jacinto, CA 92583 ) Attention: City Clerk ) ) Exempt from Filing Fees, Government Code Section 6103 DEVELOPMENT AGREEMENT NO. A DEVELOPMENT AGREEMENT BETWEEN CITY OF SAN JACINTO and EMPIRE HOMES, INC. RVPUBUSB\651318 DEVELOPMENT AGREEMENT NO. This Development Agreement (hereinafter "Agreement") is entered into as of this day of , 2003 by and between the City of San Jacinto, California (hereinafter "CITY"), and Empire Homes, Inc., a California corporation (hereinafter "OWNER"): RECITALS WHEREAS, CITY 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, OWNER has requested CITY to enter into a development agreement and proceedings have been taken in accordance with the rules and regulations of CITY; and WHEREAS, by electing to enter into this Agreement, CITY shall bind future City Councils of CITY by the obligations specified herein and limit the future exercise of certain governmental and proprietary powers of CITY; and WHEREAS, the terms and conditions of this Agreement have undergone extensive review by CITY and the City Council and have been found to be fair, just and reasonable; and WHEREAS, the best interests of the citizens of the City of San Jacinto 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 Agreement pursuant to a determination by the CITY that the approval of this Development Agreement is exempt from further review under the California Environmental Quality Act because, pursuant to Title 14 of the California Code of Regulations section 15378, subdivision (a), the approval of this Agreement does not have the potential for resulting in either a direct physical change in the environment, or a reasonably foreseeable indirect change in the environment because it does not attempt to affect the physical development of property; and WHEREAS, all of the procedures of the California Environmental Quality Act have been met with respect to the Agreement pursuant to a determination by the CITY that the approval of this Development Agreement is exempt from further review under the California Environmental Quality Act because, pursuant to Title 14 of the California Code of Regulations section 15378, subdivision (b)(4), the approval of this Agreement is not a project because it is merely the creation of government funding mechanisms or other governmental fiscal activity; and RVPUBUSB\651318 -1- WHEREAS, this Development Agreement is exempt from further review under the California Environmental Quality Act because, pursuant to Title 14 of the California Code of Regulations section 15273, CEQA does not require further environmental review because this Agreement constitutes the establishment, modification, structuring or restructuring of charges by the City that the City Council hereby finds are necessary for the purpose of meeting police, fire and road maintenance operating expenses and obtaining funds necessary for capital projects in order to maintain service within existing service areas of the City; and WHEREAS, in connection with the conclusion reached above concerning Title 14 of the California Code of Regulations section 15273, the City Council finds that, based on recent meetings, including a recent joint Planning Commission and City Council meeting, the City requires additional funding in order to meet fire and police public safety and road maintenance needs within, among other areas, the Property; and WHEREAS, the physical effects, if any, of the Project have been or will be separately analyzed pursuant to CEQA and therefore, this Agreement is exempt from further review under CEQA; and WHEREAS, this Agreement and the Project are consistent with the San Jacinto Comprehensive General Plan and any Specific Plan applicable thereto; and WHEREAS, all actions taken and approvals given by CITY 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 CITY and will further important policies and goals of CITY; 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 Section 65864, et seq. of the Government Code are intended; and WHEREAS, OWNER has incurred and will in the future incur substantial costs in order to assure development of the Property in accordance with this Agreement; and 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. RVPUBUSB\651318 -2- 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 adequacy of which are 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" means this Development Agreement. 1.1.2 "CITY" means the City of San Jacinto, a political subdivision of the State of California. 1.1.3 "City Council" means the duly elected city council of the City of San Jacinto. 1.1.4 "Commencement Date" means the date the Term of this Agreement commences. 1.1.5 "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. 1.1.6 "Development Agreement Policies" means those certain development agreement policies approved by CITY pursuant to Resolution No. 2358, adopted on July 18, 2002. 1.1.7 "Development Approvals" means all permits and other entitlements for use subject to approval or issuance by CITY in connection with development of the Property including, but not limited to: RVPUKISB\651318 (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. -3- 1.1.8 "Development Exaction" means any requirement of CITY 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 to lessen, offset, mitigate or compensate for the impacts of development on the environment or other public interests. 1.1.9 "Development Impact Fee" a monetary exaction other than a tax or special assessment, whether established for a broad class of projects by legislation of general applicability or imposed on a specific project on an ad hoc basis, that is charged by a local agency to the applicant in connection with approval of a development project for the purpose of defraying all or a portion of the cost of public facilities related to the development project, but does not include fees specified in Government Code Section 66477, fees for processing applications for governmental regulatory actions or approvals, fees collected under development agreements adopted pursuant to Article 2.5 of the Government Code (commencing with Section 65864) of Chapter 4, or fees collected pursuant to agreements with redevelopment agencies which provide for the redevelopment of property in furtherance or for the benefit of a redevelopment project for which a redevelopment plan has been adopted pursuant to the Community Redevelopment Law (Part 1 (commencing with Section 33000) of Division 24 of the Health and Safety Code). The term "Development Impact Fee" expressly includes any impact, public facilities or impact fee as set forth in Section 202 of the Development Agreement Policies. 1.1.10 "Development Plan" means the plan for development of the Property as set forth in Exhibit "C". 1.1.11 "Development Impact Fee Limitation Period" means the period that commences on the Effective Date and expires on the date that is five (5) years following the Effective Date. 1.1.12 "Effective Date" means the date the ordinance approving and authorizing this Agreement becomes effective. 1.1.13 "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, 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 CITY ordinance, resolution, code, rule, regulation or official policy, governing: RVPUBUSB\651318 (a) the conduct of businesses, professions, and occupations; (b) taxes and assessments; (c) the control and abatement of nuisances; -4- (d) the granting of encroachment permits and the conveyance of rights and interests that provide for the use of or the entry upon public property; (e) the exercise of the power of eminent domain. 1.1.14 "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. 1.1.15 jintentionally left blank.l 1.1.16 "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. 1.1.17 "Project" means the development of the Property contemplated by the Development Plan as such Plan may be further defined, enhanced or modified pursuant to the provisions of this Agreement. 1.1.18 "Property" means the real property described on Exhibit "A" and shown on Exhibit "B" to this Agreement. 1.1.19 "Reservation of Rights" means the rights and authority excepted from the assurances and rights provided to OWNER under this Agreement and reserved to CITY under Section 3.6 of this Agreement. 1.1.20 [intentionally left blank.l 1.1.21 jintentionally left blank.l 1.2 Exhibits. The following documents are attached to, and by 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" -- Development Plan. Exhibit "D" -- jintentionally left blank.l Exhibit "E" — Development Impact Fees. GENERAL PROVISIONS. 2.1 Binding Effect of Agreement. The Property is hereby made subject to this Agreement. Development of the Property is hereby authorized and shall be carried out in accordance with the terms of the Development Plan and this Agreement. 2.2 Ownership of Property. OWNER represents and covenants that it is the owner of the fee simple title to, or has an equitable interest in, the Property or a portion thereof. RVPUBUSB\651318 -5- 2.3 Term. The initial term of this Agreement shall commence on the date (the "Commencement Date") that is the earlier of: (i) the date CITY approves the first tentative tract map for the Project; or (ii) 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. Notwithstanding the foregoing, the term of this Development Agreement may be extended for and additional five (5) years following expiration of the initial term, provided the following have occurred: (a) OWNER provides at least one hundred eighty (180) days written notice to CITY prior to the expiration of the initial term; (b) OWNER shall have obtained building permits for at least sixty-seven percent (67%) of the units contemplated by the Development Plan; and (c) OWNER is not then in uncured default of this Agreement. The initial term and, if and upon extension, the 5-year extension, shall sometimes be referred to herein collectively as the "Term." 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, et seq.) 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, OWNER shall notify CITY, in writing, of such sale, transfer or assignment and shall provide CITY with an executed agreement ("Assigment and Assumption Agreement"), in a form reasonably acceptable to CITY, by the purchaser, transferee or assignee and providing therein that the purchaser, transferee or assignee expressly and unconditionally assumes all the duties, obligations, agreements, covenants, waivers of OWNER under this Agreement, including, without limitation, the covenant not to sue and waiver contained in Section 8.5 hereof. 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. RVPUBUSB\651318 -6- 2.4.2 Release of Transferring Owner. Notwithstanding any sale, transfer or assignment, a transferring OWNER shall continue to be obligated under this Agreement with respect to the transferred Property or any transferred portion thereof, unless such transferring OWNER is given a release in writing by CITY, which release shall be provided by CITY upon the full satisfaction by such transferring OWNER of the following conditions: (a) OWNER no longer has a legal or equitable interest in all or any part of the Property subject to the transfer. (b) OWNER is not then in default under this Agreement. (c) OWNER has provided CITY with the notice and executed agreement required under Paragraph (b) of Subsection 2.4.1 above. (d) The purchaser, transferee or assignee provides CITY with security equivalent to any security previously provided by OWNER to secure performance of its obligations hereunder. 2.4.3 Subsequent Assignment. 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 Utilities. In accordance with Section 201(h) of the Development Agreement Policies, the Project shall be connected to all utilities necessary to provide adequate water, sewer, gas, electric, and other utility service to the Project. OWNER shall contract with the CITY for CITY -owned or operated utilities serving the Project for such prices and on such terms as may be mutually agreed to between the parties. 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 that has been finally subdivided and is individually (and not in "bulk") sold or leased to a member of the public or other ultimate user. Subject to Sections 8.1 through 8.6, 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 (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 for such lot set forth in this Agreement have been paid. 2.5 Amendment or Cancellation of Agreement. This Agreement may be amended or canceled in whole or in part only by written consent of all parties in the manner provided for in Government Code Section 65868 and Article 5 of the Development Agreement Policies. This provision shall not limit any remedy of CITY or OWNER as provided by this Agreement. RVPUB\JSB\651318 -7- 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 this Agreement. (d) Completion of the Project in accordance with the terms of this Agreement including issuance of all required occupancy permits and acceptance by CITY or applicable public agency of all required dedications. (e) Termination of this Agreement based on any default of OWNER and following the termination proceedings required by Articles 7 and 8 of the Development Agreement Policies. 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 that has occurred prior to such termination or with respect to any obligations that are specifically set forth as surviving this Agreement. Upon such termination, any Development Impact Fees paid pursuant this Agreement by OWNER to CITY for residential units on which construction has not yet begun shall be refunded to OWNER by CITY. 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. (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 CITY: City of San Jacinto 201 East Main Street San Jacinto, CA 92583 Attn: City Manager Telephone: (909) 487-7342 Facsimile: (909) 654-3728 RVPUBUSB\651318 -8- Copy to: Best, Best & Krieger, LLP 3750 University Ave. Riverside, CA 92501 Attn: City Attorney Telephone: (909) 686-1450 Facsimile: (909) 686-3083 If to OWNER: Empire Homes, Inc. 20 Corporate Park, Suite 240 Irvine, CA 92606 Attn: Russell G. Van Cleve (c) Either party may, by notice given at any time, require subsequent notices to be given to another person or 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. 3. DEVELOPMENT OF THE PROPERTY. 3.1 Rights to Develop. Subject to the terms of this Agreement including the Reservation of Rights, OWNER shall have a vested right to develop the Property in accordance with, and to the extent of, this Agreement. Except as expressly provided otherwise herein, the Project shall remain subject to all Land Use Regulations and Development Approvals, whether in effect on the Effective Date or subsequently adopted or amended, that are required to complete the Project as contemplated by the Development Plan. In addition, except as provided in Section 3.3 hereof, the Project shall remain subject to any Development Impact Fees that are required to complete the Project as contemplated by the Development Plan, whether in effect as of the Effective Date or subsequently adopted, amended or otherwise altered. Except as otherwise provided in this Agreement and notwithstanding the authority of the CITY to further pursuant to Government Code section 65866, 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 Land Use Regulations and Development Approvals, whether in effect on the Effective Date or subsequently adopted. 3.2 Effect of Agreement on Land Use Regulations. Except as otherwise provided under the terms of this Agreement including the Reservation of Rights, 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 Land Use Regulations and Development RVPUBUSB\651318 -9- Approvals, whether in effect on the Effective Date or subsequently adopted. In connection with any subsequently imposed Development Approvals and except as specifically provided otherwise herein, CITY may exercise its discretion in accordance with the Land Use Regulations then in effect, as provided by this Agreement, including, but not limited to, the Reservation of Rights. CITY shall accept for processing, review and action all applications for Subsequent Development Approvals, and such applications shall be processed in the same manner and the CITY shall exercise its discretion, when required or authorized to do so, to the same extent it would otherwise be entitled in the absence of this Agreement. 3.3 TUMF Fee and MSHCP Fee. Notwithstanding any provision herein to the contrary, the Project shall not be subject to the CITY's Transportation Uniform Mitigation Fee ("TUMF") or, if adopted, the Multi -Species Habitat Conservation Plan Fee ("MSHCP Fee"). Nothing contained in this Section 3.3 shall be construed as affecting OWNER's obligation to pay all other Development Impact Fees, whether existing as of the Effective date or adopted, amended or otherwise altered thereafter. 3.4 (intentionally left blank.l 3.5 jintentionally left blank.l 3.6 Reservation of Rights. 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 CITY to cover the estimated actual costs to CITY of processing applications for Development Approvals or for monitoring compliance with any Development Approvals granted or issued. (b) Procedural regulations relating to hearing bodies, petitions, applications, notices, findings, records, hearings, reports, recommendations, appeals and any other matter of procedure. (c) Regulations, policies and rules governing engineering and construction standards and specifications applicable to public and private improvements, including, without limitation, all uniform codes adopted by the City and any local amendments to those codes adopted by the CITY, including, without limitation, the CITY's Building Code, Plumbing Code, Mechanical Code, Electrical Code, Fire Code and Grading Code. (d) Regulations that may be in material conflict with this Agreement but that are reasonably necessary to protect the residents of the project or the immediate community from a condition perilous to their health or 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. RVPUBUSB\651318 -10- Lessthan rv=,""=n Significant L~~~ Than ` ^ Impact - Mitigation Incorporated; No ` Impact 48, other /Source: .` . ` Flnd��sofFoct � K8Kiqetion: �^ � K8ondorng: ��J���K���7F����� ��N����U����m� ��H� ��U����UH�N��AJN���� °°=�°°~~^~~~~''- FINDINGS ^4g' Does the project have the potential to ~-~�--'--a'y degrade �quality of the `��m88ym��~~~ - '�bebmb�m�m� mmmv�umn�'m�=u�==~ a fish orwildlife species, cause mfish orwildlife population to drop below self- sustaining � Ue»mUm, threaten to eliminate m plant or animal ' community, reduce the number mrrestrict the ' range mfm reno, or endangered o1mmt or animal .' t�oUhmim�mm ��po�mntoxamp�major ` periods of California history orprehistory? � | Source: This review Findinqs of Fact: This review indicates that no substantial impact on the environment or habitat of fish or wildlife '( would occur 50. Does the project have the potential tmachieve ` short-term omvinmmmmmmta| goals, to the disadvantage oflong-term environmental goals? A\short-term impact onthe environment is one which occurs inorelatively brief, definitive period oftime while long-term impacts will endure well into the future.) � Source: This review Find\nOsofFact: Noshort-term orlong term impacts onthe environment are expected. 51' Does the project have impacts which are individually limited, but cumulatively considerable? ("Cumulatively considerable" means that the incremental effects of an individual project are considerable vvhon viewed in connection with the effects ofpast projects, the effects ofother current projects, and the effects ofprobable future projects osdefined in California Code of Regu|ot\ons, Section 16130)? � � Source: This review Findin0sofFact: Noimpacts are expected 27 ess than Potentially Significan Significant with Impact Mitigation Incorporated 52. Does the project have environmental effects which will cause substantial adverse effects on human beings, either directly or indirectly? Source: This review Findings of Fact: No direct or indirect impacts on human beings are expected VI. EARLIER ANALYSES Earlier analyses may be used where, pursuant to the tiering, program EIR, or other CEQA process, an effect has been adequately analyzed in an earlier EIR or negative declaration. California Code of Regulations, Section 15063 (c) (3) (D). In this case, a brief discussion should identify the following: Earlier Analyses Used, if any: Location Where Earlier Analyses, if used, are available for review: 28 RESOLUTION NO. 03-10 A RESOLUTION OF THE PLANNING COMMISSION OF THE CITY OF SAN JACINTO, CALIFORNIA, APPROVING A CONDITIONAL USE PERMIT ` TO ALLOW THE CONSTRUCTION OF A 52-UNIT APARTMENT COMPLEX ON 3.78 ACRES FOR PROPERTY LOCA l'ED ON THE EAST SIDE OF SANTA FE STREET, SOUTH OF ESPLANADE AVENUE: CUP NO. 2-03. WHEREAS, Willowcreek Meadows filed an application on February 18, 2003, File No. CUP 2-03, for a conditional use permit to allow the construction of a 52-unit apartment complex ("Application") on approximately 3.78 acres of land, APN 439-110-002 ("Subject Site"); WHEREAS, the property affected by the Application is within the Multiple - Family Residential (R-3) zoning district; WHEREAS, the Application was reviewed, studied, and found to comply with the California Environmental Quality Act ("CEQA") as more fully described below; WHEREAS, on April 24, 2003, the Planning Commission of the City of San Jacinto ("Commission") conducted a duly noticed public hearing on the Application at which time all persons wishing to testify in -connection with the Application were heard and the Application was comprehensively reviewed; and WHEREAS, all other legal prerequisites to the adoption of this Resolution have occurred. NOW, THEREFORE, THE PLANNING COMMISSION OF THE CITY OF SAN JACINTO RESOLVES AS FOLLOWS: SECTION 1. Based on the entire record before the Commission, all written and oral evidence presented to the Commission, and the findings set forth in this Resolution, the Commission grants Conditional Use Permit No. 2-03 to allow the construction of 52-unit apartment complex on the Subject Site, subject to the conditions of approval in Exhibit "A„(«CUP„ ). SECTION 2. Based on the entire record before the Commission and all written and oral evidence presented to the Commission, including the staff report, the Commission finds as follows: A. The Subject Site for which the CUP is granted is in accordance with the objectives of the City of San Jacinto Development Code and the purposes of the multiple -family residential (R-3) zoning district because the Planning Commission has determined that the use of the subject property for the construction of 52 apartments is similar to and no more objectionable than any other Conditional Uses allowed with in the multiple -family residential (R-3) zoning district. B. The CUP is consistent with the general plan of the City of San Jacinto ("General Plan"), will not be detrimental to the public health, safety, or welfare, and will not be materially injurious to properties or improvements in the vicinity because: 1. The CUP provides for land uses compatible with the High Density Residential land use classification for the Subject Site in the General Plan Land Use Element. 2. The construction of 52-unit apartment complex authorized by the CUP helps to develop a balanced residential environment with access to employment opportunities, community facilities and adequate services; C. The traffic generated by the proposed conditional use will not overload the capacity of the surrounding street system and will not create a hazard to public safety because excess capacity exists in the current system; SECTION 3. Based on the entire record before the Planning Commission and all written and oral evidence presented, including the staff report, the Planning Commission finds the nature and extent of the dedications, reservations, impact fees, • and other exactions are reasonably related to public needs and roughly proportional to the impacts created by use of the Subject Site as permitted by the CUP; SECTION 4. Based on the entire record before the Planning Commission and all written and oral evidence presented, the Planning Commission finds the CUP complies with CEQA for the following reasons: Although the proposed project could have had a significant effect on the environment, there will not be significant effect in this case because revisions in the project or proposals made by or agreed to by the applicant would avoid the effects to a point where clearly no significant effects would occur; therefore A MITIGATED NEGATIVE DECLARATION has been prepared. City Staff is directed to file a Notice of Determination within 5 days of this Resolution. PASSED, APPROVED AND ADOP I BD, this 24th day of April, 2003. Planning Commission Chairperson AT IEST: Planning Commission Secretary STONE VENE _i0.49ipv -at; ttl ,r1 6-11.1a,0 ROOF FINISH: CONCRETE TILED OVER ONE LAYER 30,t ASTM ROOFING FELT NIT L S CTIONAL ARACE DOORS WonA STANLEY ISED PANEL STEEL E DOORS, TYP or r1:4 ••• 3- R. UN T 2x4 STUCCO COVERED FOAM DETAILS AROUND DOORS/WINDOWS TYPICAL , trr,74,a,7,7,ZAMIIVRAV.0",1311 MEMORANDUM April 18, 2003 TO: Punning Commission FROM. Mimi Rodriguez, Planning Secretary SUBJECT; Agenda Item 6.4 Planning Commission Meeting April 24, 2003 The City Engineer has requested that the Agenda Item 6,4, Tentative Tract 30942 be continued to allow the adjacent proposed Tentative Tract 31296 to be reviewed concurrently by the Commission. COMMUNITY DEVELOPMENT MEMORANDUM To: Honorable Chairman and Members of the Planning Commission From: David Clayton, Information Planner Date: April 22, 2003 Subject: Item 6.2 Exhibit B, the photo simulations for CUP 1-03 were not included in your Planning Commission packets. Please consider them in your review COMMUNITY DEVELOPMENT RV57XC E 03 B LOCATION ©2000 Thomas Bros. Maps EXISTING SAN JACINTO 454 SOUTH SAN LJACINT❑ AVENUE SAN JACINTO CA 92583 PROPOSED - LOOKING SOUTH FROM MAIN STREET ENGINEERING (714) 666-0700 ARTISTIC ENGINEERING WARRANTS THAT THIS PHOTO SIMULATION IS AN ACCURATE REPRESENTATION OF THE SITE BASED UPON INFORMATION PROVIDED BY PROJECT APPLICANT. RV57XC6C3B LOCATION ©2000 Thomas Bros. Maps EXISTING SAN JACINTO 454 SOUTH SAN ..JACINTO AVENUE SAN JACINTO CA 92583 PROPOSED - LOOKING EAST FROM PIC❑ AVENUE ENGINEERING (714) 6665 0700 ARTISTIC ENGINEERING WARRANTS THAT THIS PHOT❑ SIMULATION IS AN ACCURATE REPRESENTATION OF THE SITE BASED UPON INFORMATION PROVIDED BY PROJECT APPLICANT. Sp LOCATION RV57XC6133B SAN JACINTO 454 SOUTH SAN JACINTO AVENUE SAN JACINTO CA 92583 RIO AIN ST 574 €Tr ST AIN ST fE1-1TT CH CC 02000 Thomas Bros. Maps EXISTING PROPOSED - LOOKING WEST FROM SAN JACINTO AVENUE - "44.-,044s- VIEW 4 ENGINEERING J/SUAlf,,01, SOLUT,,S (714)666-0700 ARTISTIC ENGINEERING WARRANTS THAT THIS PHOTO SIMULATION IS AN ACCURATE REPRESENTATION OF THE SITE BASED UPON INFORMATION PROVIDED BY PROJECT APPLICANT. STATE OF CALIFORNIA ) COUNTY OF RIVERSIDE)ss CITY OF SAN JACINTO ) DECLARATION AND CERTIFICATION OF CUSTODIAN OF RECORDS I, Dorothy L. Chouinard, City Clerk of the City of San Jacinto, California, do hereby certify under penalty of perjury under the laws of the State of California, that am authorized custodian of records for the City of San Jacinto and that the attached DVD is a true and correct copy of the following: 1 April 24, 2003 Meeting Recording (converted from cassette to MP3) Witness my hand and official seal this 16t day of February, 2007. 166 East Main Street, Suite 2 San Jacinto, CA 92583 C orothy L. C' huinard, City Clerk City of San Jcinto City Clerk Ph, (951) 487-7339 Fax (951) 654-8021 .ci.san-jacinto.ca.us STATE OF CALIFORNIA ) COUNTY OF RIVERSIDE)ss CITY OF SAN JACINTO DECLARATION AND CERTIFICATION OF CUSTODIAN OF RECORDS I, Dorothy L. Chouinard, City Clerk of the City of San Jacinto, California, do hereby certify under penalty of perjury under the laws of the State of California, that I am authorized custodian of records for the City of San Jacinto and that the attached documents are true and correct copies of the following: 1 April 25, 2003 Agenda 2. April 25, 2003 Agenda Item 6.2 regarding Development Agreement 03-06 and Ordinance No. 03-14 3. April 25, 2003 Amended Agenda 4. April 25, 2003 Amended Agenda Item 6.2 regarding Development Agreement 03-06 and Ordinance No. 03-14 5. May 1, 2003 Agenda Item 5.2.6 regarding Development Agreement 03-06 and adopted by Ordinance 03-14 (GKH Diversified) 6. May 1, 2003 Amended Agenda Item 5.2.6 regarding Development Agreement 03-06 and adopted by Ordinance 03-14 (GKH Diversified) 7 April 25, 2003 Meeting Recording (converted from cassette to MP3) Witness my hand and official seal this 15tt' day of February, 2007. 166 East Main Street, Suite 2 San Jacinto, CA 92583 (4) WA/a4C D6rothy L. C : inard, City Clerk City of San Jacinto City Clerk Ph (951) 487-7339 Fax (951) 654-8021 ct.san-jacanto.ca.us 02/08/2007 04:42 A 9516821832 BBK PAGE 01/02 INDIAN WELL-5 (760) 568-2E31 I 01,74RIO 4909/ 989-55e4 DATE: To: BEST BEST 6, KRIEGER LLP A GAUFORNIA LIMITLIABILITY PARTNERSHIP INCLUDING PROPEBBIONAL CORPORATION-1"A LAWYERS .a750 UNIVERSITY AVENUE POST OFFICE BOX I 028 RIVERSIDE, CALIFORNIA 9250a- Ie)ae (slc, iTie3-1450 (95 I ) see-3oe.a FAX 98KLAW.COM TELECOPIER TRANSMISSION SAN 131Ebp 1619) 525-1a00 ORANGE COUNT{ 1949) a00-2e00 SACRAMENTO (9 I (3) 325-4000 NAME FAX No. PHONE No. 'Do re441..7 01 01.j tN42. C:7 (,..c. 951 FROM: Jeff S. Ballinger RE; De... 4. 4 (9y •-ee /1/71* FILE No.: USER No.: 1145 No. OF PAGES, INCLUDING COVER: MESSAGE: DO C414-74 'from (vi •v•i- 1„,_ d5JA Ape'd I (via7, z003 2e, r rin c L4 d 6-e.17' 0 C- 11415 ibyr irx_ rid ir-15 4.4e__ urn F ;fr k0k iikey;) IL 01 a z 0 o 3 a DO I CAUTION - CONFIDENTIAL: THE DOCUMENT BEING TELECOPIED TO YOU MAY CONTAIN INFORMATION PROTECTED BY THE ATTORNEY-CLIENT/WORK PRODUCT PRIVILEGE, It is intended only for thc person to whom it is addressed. if you are not the intended recipient or an authorized agent, then this is notice to you that dissemination, distribution or copying of this document is prohibited. If this was received in error, please call us at once and destroy the document. IF YOU EXPERIENCE ANY DIFFICULTY WITH THE QUALITY OR COMPLETENESS OF THIS TRANSMISSION, PLEASE CALL SUPPORT SERVICES (951) 686-1450, EXT. 388. RVPUBUSB\692514.1 2007 04:42 9516821832 BBK UARY A, WALDRON Joii S, OLSON .H1'....kRY S. BRAGG JANET I..,. C.A LUSTER DANE P. MILLER WALDRON & OLSON, LLP ATTORNEYS AT LAW 26 C7ORPORATU PLAZA DRIVE SUITE 100 NEWPORT BEACH, CALIFORNIA 926G0-7958 (949) 760-0204 MA,ECONER (949) 760-2507 February 7, 2007 Jeff Ballinger City Attorney City of San Jacinto Best, Best & Krieger 3750 University Avenue P.O. Box 1028 Riverside, CA 92502-1028 PAGE 02/02 OF COIIN.M. CAROL A FOSTRI1 DAVID I. LIPSKY FEB Re: Meritage Homes of California v. GICH Diversified, et al. Dear Jeff: As we mentioned at your deposition, we need to obtain a copy of any tape recording which occurred at either the April 25, 2003 meeting or the May 1, 2003 meeting of the City of Sari Jacinto City Council. Additionally, I do not believe that either you or the Clerk produced the Development Agreement packet that was actually utilized at the May 1, 2003 second reading in connection with the subpoenas that we served last summer. Would you please check to see whether there is such a document, which I understand would normally be produced by the staff in a packet and, be available for review by all City Council members dn-conneltion with a second reading bf any ordinance. Very truly yours, TALQ & OLS N, LLP Olson JSO: lsg cc: Gary A. Waldron, 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 adequacy of which are hereby acknowledged, the parties agree as follows: 1. DEFINITIONS AND EXHIBITS. 11 Definitions. The following terms when used in this Agreement shall be defined as follows: 1.1.1 "Agreement" means this Development Agreement. 1.1.2 "CITY" means the City of San Jacinto, a political subdivision of the State of California. 1.1.3 "City Council" means the duly elected city council of the City of San Jacinto. 1.1.4 "Commencement Date" means the date the Term of this Agreement commences. 1.1.5 "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. 1.1.6 "Development Agreement Policies" means those certain development agreement policies approved by CITY pursuant to Resolution No. 2358, adopted on July 18, 2002. 1,1.7 "Development Approvals" means all permits and other entitlements for use subject to approval or issuance by CITY in connection with development of the Property including, but not limited to: RVPUBVSB\651318 (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. -3- 1.1.8 "Development Exaction" means any requirement of CITY 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 to lessen, offset, mitigate or compensate for the impacts of development on the environment or other public interests. 1.1.9 "Development Impact Fee" a monetary exaction other than a tax or special assessment, whether established for a broad class of projects by legislation of general applicability or imposed on a specific project on an ad hoc basis, that is charged by a local agency to the applicant in connection with approval of a development project for the purpose of defraying all or a portion of the cost of public facilities related to the development project, but does not include fees specified in Government Code Section 66477, fees for processing applications for governmental regulatory actions or approvals, fees collected under development agreements adopted pursuant to Article 2.5 of the Government Code (commencing with Section 65864) of Chapter 4, or fees collected pursuant to agreements with redevelopment agencies which provide for the redevelopment of property in furtherance or for the benefit of a redevelopment project for which a redevelopment plan has been adopted pursuant to the Community Redevelopment Law (Part 1 (commencing with Section 33000) of Division 24 of the Health and Safety Code). The term "Development Impact Fee" expressly includes any impact, public facilities or impact fee as set forth in Section 202 of the Development Agreement Policies. 1.1.10 "Development Plan" means the plan for development of the Property as set forth in Exhibit "C". 1.1.11 "Development Impact Fee Limitation Period" means the period that commences on the Effective Date and expires on the date that is five (5) years following the Effective Date. 1.1.12 "Effective Date" means the date the ordinance approving and authorizing this Agreement becomes effective. 1.1.13 "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, 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 CITY ordinance, resolution, code, rule, regulation or official policy, governing: RVPUBUSB \6513 18 (a) the conduct of businesses, professions, and occupations; (b) taxes and assessments; (c) the control and abatement of nuisances; -4- rights and (d) the granting of encroachment permits and the conveyance of ests that provide for the use of or the entry upon public property; (e) the exercise of the power of eminent domain. 1.1.14 "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. 1.1.15 [intentionally left blank.1 1.1.16 "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. 1.1.17 "Project" means the development of the Property contemplated by the Development Plan as such Plan may be further defined, enhanced or modified pursuant to the provisions of this Agreement. 1.1.18 "Property" means the real property described on Exhibit "A" and shown on Exhibit "B" to this Agreement. 1.1.19 "Reservation of Rights" means the rights and authority excepted from the assurances and rights provided to OWNER under this Agreement and reserved to CITY under Section 3.6 of this Agreement. 1.1.20 [intentionally left blank.] 1.1.21 [intentionally left blank.l 1.2 Exhibits. The following documents are attached to, and by 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" -- Development Plan. Exhibit "D" fintentionally left blank.l Exhibit "E" — Development Impact Fees. 2. GENERAL PROVISIONS. 2.1 Binding Effect of Agreement. The Property is hereby made subject to this Agreement. Development of the Property is hereby authorized and shall be carried out in accordance with the terms of the Development Plan and this Agreement. 2.2 Ownership of Property. OWNER represents and covenants that it is the owner of the fee simple title to, or has an equitable interest in, the Property or a portion thereof. RVPUBVS13\651318 -5- 2.3 Term. The initial term of this Agreement shall commence on the date (the "Commencement Date") that is the earlier of: (i) the date CITY approves the first tentative tract map for the Project; or (ii) 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. Notwithstanding the foregoing, the term of this Development Agreement may be extended for and additional five (5) years following expiration of the initial term, provided the following have occurred: (a) OWNER provides at least one hundred eighty (180) days written notice to CITY prior to the expiration of the initial term; (b) OWNER shall have obtained building permits for at least sixty-seven percent (67%) of the units contemplated by the Development Plan; and OWNER is not then in uncured default of this Agreement. (c) The initial term and, if and upon extension, the 5-year extension, shall sometimes be referred to herein collectively as the "Term." 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, et seq.) 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, OWNER shall notify CITY, in writing, of such sale, transfer or assignment and shall provide CITY with an executed agreement ("Assigment and Assumption Agreement"), in a form reasonably acceptable to CITY, by the purchaser, transferee or assignee and providing therein that the purchaser, transferee or assignee expressly and unconditionally assumes all the duties, obligations, agreements, covenants, waivers of OWNER under this Agreement, including, without limitation, the covenant not to sue and waiver contained in Section 8.5 hereof. 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. RVPUB\JSB\6513 I 8 -6- 2.4.2 Release of Transferring Owner. Notwithstanding any sale, transfer or assignment, a transferring OWNER shall continue to be obligated under this Agreement with respect to the transferred Property or any transferred portion thereof, unless such transferring OWNER is given a release in writing by CITY, which release shall be provided by CITY upon the full satisfaction by such transferring OWNER of the following conditions: (a) OWNER no longer has a legal or equitable interest in all or any part of the Property subject to the transfer. (b) OWNER is not then in default under this Agreement. (c) OWNER has provided CITY with the notice and executed agreement required under Paragraph (b) of Subsection 2.4.1 above. (d) The purchaser, transferee or assignee provides CITY with security equivalent to any security previously provided by OWNER to secure performance of its obligations hereunder. 2.4.3 Subsequent Assignment. 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 Utilities. In accordance with Section 201(h) of the Development Agreement Policies, the Project shall be connected to all utilities necessary to provide adequate water, sewer, gas, electric, and other utility service to the Project. OWNER shall contract with the CITY for CITY -owned or operated utilities serving the Project for such prices and on such terms as may be mutually agreed to between the parties. 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 that has been finally subdivided and is individually (and not in "bulk") sold or leased to a member of the public or other ultimate user. Subject to Sections 8.1 through 8.6, 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 (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 for such lot set forth in this Agreement have been paid. 2.5 Amendment or Cancellation of Agreement. This Agreement may be amended or canceled in whole or in part only by written consent of all parties in the manner provided for in Government Code Section 65868 and Article 5 of the Development Agreement Policies. This provision shall not limit any remedy of CITY or OWNER as provided by this Agreement. RVPUINSB\651318 -7- 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 this Agreement. (d) Completion of the Project in accordance with the terms of this Agreement including issuance of all required occupancy permits and acceptance by CITY or applicable public agency of all required dedications. (e) Termination of this Agreement based on any default of OWNER and following the termination proceedings required by Articles 7 and 8 of the Development Agreement Policies. 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 that has occurred prior to such termination or with respect to any obligations that are specifically set forth as surviving this Agreement. Upon such termination, any Development Impact Fees paid pursuant this Agreement by OWNER to CITY for residential units on which construction has not yet begun shall be refunded to OWNER by CITY. 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. (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 CITY: City of San Jacinto 201 East Main Street San Jacinto, CA 92583 Attn: City Manager Telephone: (909) 487-7342 RVPUBUSB\651318 -8- Facsimile: (909) 654-3728 Copy to: Best, Best & Krieger, LLP 3750 University Ave. Riverside, CA 92501 Attn: City Attorney Telephone: (909) 686-1450 Facsimile: (909) 686-3083 If to OWNER: Riverside Valley Land Company, LLC 4405 Manchester Avenue, Suite 106 Encinitas, CA 92024 Attn: Randy P. Wastal (c) Either party may, by notice given at any time, require subsequent notices to be given to another person or 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. 3. DEVELOPMENT OF THE PROPERTY. 3.1 Rights to Develop. Subject to the terms of this Agreement including the Reservation of Rights, OWNER shall have a vested right to develop the Property in accordance with, and to the extent of, this Agreement. Except as expressly provided otherwise herein, the Project shall remain subject to all Land Use Regulations and Development Approvals, whether in effect on the Effective Date or subsequently adopted or amended, that are required to complete the Project as contemplated by the Development Plan. In addition, except as provided in Section 3.3 hereof, the Project shall remain subject to any Development Impact Fees that are required to complete the Project as contemplated by the Development Plan, whether in effect as of the Effective Date or subsequently adopted, amended or otherwise altered. Except as otherwise provided in this Agreement and notwithstanding the authority of the CITY to further pursuant to Government Code section 65866, 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 Land Use Regulations and Development Approvals, whether in effect on the Effective Date or subsequently adopted. 3.2 Effect of Agreement on Land Use Regulations. Except as otherwise provided under the terms of this Agreement including the Reservation of Rights, 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 RVPUBUSB\651318 -9- development of the Property shall be the Land Use Regulations and Development Approvals, whether in effect on the Effective Date or subsequently adopted. In connection with any subsequently imposed Development Approvals and except as specifically provided otherwise herein, CITY may exercise its discretion in accordance with the Land Use Regulations then in effect, as provided by this Agreement, including, but not limited to, the Reservation of Rights. CITY shall accept for processing, review and action all applications for Subsequent Development Approvals, and such applications shall be processed in the same manner and the CITY shall exercise its discretion, when required or authorized to do so, to the same extent it would otherwise be entitled in the absence of this Agreement. 3.3 TUMF Fee and MSHCP Fee. Notwithstanding any provision herein to the contrary, the Project shall not be subject to the CITY's Transportation Uniform Mitigation Fee ("TUMF") or, if adopted, the Multi -Species Habitat Conservation Plan Fee ("MSHCP Fee"). Nothing contained in this Section 3.3 shall be construed as affecting OWNER's obligation to pay all other Development Impact Fees, whether existing as of the Effective date or adopted, amended or otherwise altered thereafter. 3.4 [intentionally left blank.l 3.5 fintentionally left blank.l 3.6 Reservation of Rights. 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 CITY to cover the estimated actual costs to CITY of processing applications for Development Approvals or for monitoring compliance with any Development Approvals granted or issued. (b) Procedural regulations relating to hearing bodies, petitions, applications, notices, findings, records, hearings, reports, recommendations, appeals and any other matter of procedure. (c) Regulations, policies and rules governing engineering and construction standards and specifications applicable to public and private improvements, including, without limitation, all uniform codes adopted by the City and any local amendments to those codes adopted by the CITY, including, without limitation, the CITY's Building Code, Plumbing Code, Mechanical Code, Electrical Code, Fire Code and Grading Code. (d) Regulations that may be in material conflict with this Agreement but that are reasonably necessary to protect the residents of the project or the immediate community from a condition perilous to their health or 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. RVPUBUSB\651318 -10- (e) Regulations that are not in material conflict with this Agreement or 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 materially conflict with the Development Plan and shall therefore not be applicable to the development of the Property. (f) Regulations that are in material conflict with the Development Plan; provided OWNER has given written consent to the application of such regulations to development of that Property in which the OWNER has a legal or equitable interest. (g) Regulations that impose, levy, alter or amend fees, charges, or Land Use Regulations relating to consumers or end users, including, without limitation, trash can placement, service charges and limitations on vehicle parking. 3.6.2 Subsequent Development Approvals. This Agreement shall not prevent CITY, in acting on subsequent Development Approvals and to the same extent it would otherwise be authorized to do so absent this Agreement, from applying subsequently adopted or amended Land Use Regulations that do not materially conflict with this Agreement. 3.6.3 Modification or Suspension by State or Federal Law. In the event that State, County 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, including any County law or regulation that prohibits or, in the CITY's reasonable discretion, materially affect the CITY's authority to limit the imposition of the MSHCP Fee in accordance with Section 3.3 hereof, 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 CITY is restricted in its authority to limit certain aspects of its police power by contract and that the foregoing limitations, reservations and exceptions are intended to reserve to CITY all of its police power that cannot be or are not expressly so limited. This Agreement shall be construed, contrary to its stated terms if necessary, to reserve to CITY all such power and authority that cannot be or is not by this Agreement's express terms so restricted. 3.7 'intentionally left blank.] 3.8 Regulation by Other Public Agencies. It is acknowledged by the parties that other public agencies not within the control of CITY possess authority to regulate aspects of the development of the Property separately from or jointly with CITY and this Agreement does not limit the authority of such other public agencies. 3.9 'intentionally left blank:I RVPUBUSB\651318 -11- 3.10 intentionally left blank.' 3.11 Senate Bill 221. To the extent the Development Plan includes one or more tentative maps for a subdivision as the term "subdivision" is defined in Government Code Section 66473.7(a) and to the extent the Project, or any part thereof, is not exempt under Government Code Section 66473.7(i), each such tentative map shall comply with the provisions of Government Code Section 66473.7. 4. PUBLIC BENEFITS. 4.1 Intent. The parties acknowledge and agree that development of the Property will result in substantial public needs that will not be fully met by the Development Plan and further acknowledge and agree that this Agreement confers substantial private benefits on OWNER that 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 Development Impact Fees. 4.2.1 Amount and Components of Fee. Except as provided in Section 3.3 hereof, the Development Impact Fees currently charged by CITY, or as subsequently adopted, amended or otherwise altered, shall be charged to the Project at the rate in effect at of the time of payment as set forth in Existing Land Use Regulations. 4.2.2 Time of Payment. Except as otherwise specifically provided for in this Agreement, in accordance with Section 202 of the Development Agreement Policies all Development Impact Fees shall be paid to CITY in accordance with the applicable time frames set forth in Existing Land Use Regulations. No Development Impact Fees shall be payable prior to the Commencement Date of this Agreement. 4.2.3 Fee Credits. In accordance with Section 202 of the Development Agreement Policies, OWNER shall not be entitled under this Agreement to any credits against the Development Impact Fees required pursuant to Subsection 4.2 for the dedication of land, the construction of improvements or the payment of fees. 4.2.4 Future Fees. Except as expressly provided in Section 3.3 hereof, CITY hereby agrees that the Project shall be subject to any Development Impact Fee that CITY may enact, amend, alter, adopt, or impose before or after the Effective Date. RVPUKISE31651318 -12- 4.2.5 Expiration of Development Impact Fee Limitation Period. In accordance with Section 202 of the Development Agreement Policies, upon and after expiration of the Development Impact Fee Limitation Period, the full amount of Development Impact Fees, including, without limitation, any TUMF Fee and/or MSHCP Fee, shall be required to be paid for the Project in accordance with Land Use Regulations then in effect for those portions of the Project for which the applicable Development Impact Fee has not already been paid. 4.3 Development Agreement Fee. 4.3.1 Development Agreement Fee. In consideration for the benefits provided in this Agreement and in addition to any other Development Impact Fees required by Section 4.2, OWNER shall, upon the issuance of building permits, pay to the CITY a fee in the total amount of Three Thousand Two Hundred Dollars ($3,200) per residential dwelling unit. Nothing contained in this Agreement shall be construed as reducing or otherwise limiting OWNER's obligation to pay any and all other Development Impact Fees imposed by the CITY. 4.3.2 [Intentionally Left Blank.1 5. FINANCING OF PUBLIC IMPROVEMENTS. 5.1 Community Facilities Districts. 5.1.1 SERVICES CFD. CITY will cooperate with OWNER in the formation of one or more community facilities districts (individually a "CFD") for the purpose of financing CITY's provision of certain public services to the Project. It is the intent of the parties that any such community facilities district will levy a special tax on the Property in an amount not to exceed that amount that the City Council determines is necessary to provide public safety fire and police services and road maintenance services within such CFD. Such CFD shall include, at a minimum, an automatic two percent (2%) increase over the special tax for immediately preceding fiscal year in the Special Tax used to fund such CFD, to the extent permitted under applicable law. Notwithstanding the foregoing, it is acknowledged and agreed by the parties that nothing contained in this Section 5.1.1 shall be construed as requiring CITY or the City Council to act as the lead agency in the formation of any such community facilities districts or to issue and sell bonds. Notwithstanding the foregoing, it is acknowledged and agreed by the parties that nothing contained in this Agreement shall be construed as relieving OWNER from paying all Development Impact Fees required under Existing Land Use Regulations, as amended pursuant to this Agreement, including, without limitation, all public safety structures and equipment fees. 5.1.2 Non -Project Lots. To the extent other owners of projects with tentative maps already approved by CITY or with tentative maps currently being processed by CITY have not included or have not agreed to include such projects in the Services CFD, OWNER shall use its reasonable best efforts to cause such owners of such projects to RVPUBUSB\651318 -13- agree to their projects in the Services CFD; provided, however, that special assessment to be levied on such projects under the Services CFD shall not exceed the amount paid by property owners within the Project. 5.1.3 Adopted City Policies. In accordance with Section 201(g) of the Development Agreement Policies, any formation of any community facilities district or annexation of property into an existing community facilities district, or through another similar financing mechanism conducted pursuant to this Agreement shall be conducted in accordance with and shall not deviate from adopted CITY policies regarding the same in effect at the time. 5.2 [intentionally left blank.]. 5.3 [intentionally left blank.l 5 4 [intentionally left blank.l 6. REVIEW FOR COMPLIANCE. 6.1 Periodic Review. The CITY 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 in accordance with Article 7 of the Development Agreement Policies. OWNER shall submit an Annual Monitoring Report, in a form acceptable to the City Manager, within ten (10) days after written notice from the City Manager. 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 City Council. 6.2 Special Review. A special review of compliance with this Agreement may be made either by agreement of the parties or by initiation in one or more of the following ways: (a) Recommendation of the Planning staff; (b) Affirmative vote of at least four (4) members of the Planning Commission; or (c) Affirmative vote of at least three (3) members of the City Council. 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. (b) Upon completion of a periodic review or a special review, the Community Development Director shall submit a report to the Planning Commission setting forth the evidence concerning good faith compliance by OWNER with the terms of this RVPUBUSE31651318 -14- Agreement and his or her recommended finding on that issue. The Planning Commission shall consider such report at a public hearing. The City Manager shall provide notice to OWNER at least ten (10) days prior to the hearing by the Planning Commission. (c) If the Planning Commission finds and determines 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 Planning Commission finds and determines on the basis of substantial evidence that OWNER has not complied in good faith with the terms and conditions of this Agreement, the Commission may recommend to the City Council to modify or terminate this Agreement. OWNER may appeal a Planning Commission determination pursuant to this Section 6.3(d) pursuant to CITY's rules for consideration of appeals in zoning matters then in effect. Notice of default as provided under Section 7.4 of this Agreement shall be given to OWNER prior to or concurrent with proceedings under Section 6.4 and Section 6.5. 6.4 Proceedings Upon Modification or Termination. If, upon a finding under Section 6.3, CITY determines to proceed with modification or termination of this Agreement, CITY 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 CITY proposes to terminate or to modify the Agreement; and, (c) Such other information that the City considers 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 City Council finds, based upon substantial evidence, that OWNER has not complied in good faith with the terms or conditions of the Agreement, the City Council may terminate this Agreement or modify this Agreement and impose such conditions as are reasonably necessary to protect the interests of the CITY. The decision of the City Council shall be final, subject only to judicial review pursuant to Section 1094.5 of the Code of Civil Procedure. 6.6 Certificate of Agreement Compliance. If, at the conclusion of a Periodic or Special Review, OWNER is found to be in compliance with this Agreement, CITY shall, upon request by OWNER, issue a Certificate of Agreement Compliance ("Certificate") to OWNER stating that after the most recent Periodic or Special Review and based upon the information known or made known to the Community Development Director and City Council 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 1318RVPUBVSB165 -15- 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, CITY 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 Community Development Director or City Council. 7. DEFAULT AND REMEDIES. 7.1 Remedies in General. It is acknowledged by the parties that CITY would not have entered into this Agreement if it were to be liable in damages under this Agreement, or with respect to this Agreement or the application thereof. 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 CITY 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 that arises out of this Agreement; or (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. 7.2 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 CITY as provided in Section (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 that would adequately compensate OWNER for such efforts. 7.1 above. RVPUB1JSB\651318 -16- 7.3 Termination or Modification of Agreement for Default of OWNER. CITY 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, CITY may terminate or modify 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. 7.4 Termination of Agreement for Default of CITY. OWNER may terminate this Agreement only in the event of a default by CITY in the performance of a material term of this Agreement and only after providing written notice to CITY of default setting forth the nature of the default and the actions, if any, required by CITY to cure such default and, where the default can be cured, CITY 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. LITIGATION. 8.1 General Plan Litigation. CITY has determined that this Agreement is consistent with its Comprehensive General Plan (hereinafter the "General Plan") and that the General Plan meets all requirements of law. CITY shall defend, at its expense, including attorneys' fees, indemnify, and hold harmless OWNER, its agents, officers and employees from any claim, action or proceeding against CITY, its agents, officers, or employees to attack, set aside, void, or annul the approval of the General Plan. OWNER shall promptly notify CITY of any such claim, action or proceeding, and OWNER shall cooperate in the defense. If OWNER fails to promptly notify CITY of any such claim, action or proceeding, or if OWNER fails to cooperate in the defense, CITY shall not thereafter be responsible to defend, indemnify, or hold harmless OWNER. OWNER may in its discretion participate in the defense of any such claim, action or proceeding. 8.2 Third Party Litigation Concerning Agreement. OWNER shall defend, at its expense, including attorneys' fees, indemnify, and hold harmless CITY, its agents, officers and employees from any claim, action or proceeding against CITY, 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. CITY shall promptly notify OWNER of any such claim, action or proceeding, and CITY shall cooperate in the defense. If CITY fails to promptly notify OWNER of any such claim, action or proceeding, or if CITY fails to cooperate in the defense, OWNER shall not thereafter be responsible to defend, RVPUBUSB\651318 -17- indemnify, or hold harmless CITY. CITY may in its discretion participate in the defense of any such claim,action or proceeding. Environment Assurances. OWNER shall indemnify and hold CITY, 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, CITY, its officers, agents and employees in any action based or asserted upon any such alleged act or omission. CITY may in its discretion participate in the defense of any such action. 8.4 Reservation of Rights. With respect to Section 8.1 herein, Owner reserves, and with respect to Sections 8.2 and 8.3 herein, CITY reserves, the right to either (1) approve the attorney(s) that the indemnifying party selects, hires or otherwise engages to defend the indemnified party hereunder, which approval shall not be unreasonably withheld, or (2) conduct its own defense; provided, however, that the indemnifying party shall reimburse the indemnified party forthwith for any and all reasonable expenses incurred for such defense, including attorneys' fees, upon billing and accounting therefor. 8.5 Challenge to Existing Land Use Approvals. By accepting the benefits of this Agreement, OWNER, on behalf of itself and its successors in interest, hereby expressly agrees and covenants not to sue or otherwise challenge the Existing Land Use Approvals. Such agreement and covenant includes, without limitation, the covenant against any direct suit by OWNER or its successor in interest, or any participation, encouragement or involvement whatsoever that is adverse to CITY by OWNER or its successor in interest, other than as part of required response to lawful orders of a court or other body of competent jurisdiction. OWNER hereby expressly waives, on behalf of itself and its successors in interest, any claim or challenge to the Existing Land Use Approvals. In the event of any breach of the covenant or waiver contained herein, CITY shall, in addition to any other remedies provided for at law or in equity, be entitled to: (a) impose and recover (at any time, including after sale to a member of the public or other ultimate user) from the party breaching such covenant or waiver, the full amount of Development Impact Fees that the breaching party would have been required to pay in the absence of this Development Agreement; and (b) impose any Subsequent Land Use Regulation on those Land Use Approvals for which the breaching party had not, as of the time of such breach, obtained a building permit. RVPUBUSB\651318 -18- OWNER hereby acknowledges that it has read and is familiar with the provisions of California Civil Code Section 1542, which is set forth below: "A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR." By initialing below, OWNER hereby waives the provisions of Section 1542 in connection with the matters that are the subject of the foregoing waivers and releases. Owner's Initials 8.6 Survival. The provisions of Sections 8.1 through 8.6, inclusive, shall survive the termination of this Agreement. 9. MORTGAGEE PROTECTION. The parties hereto agree that this Agreement shall not prevent or limit OVVNER, in any manner, at 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. 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: (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 CITY in the manner specified herein for giving notices, shall be entitled to receive written notification from CITY of any default by OWNER in the performance of OWNER's obligations under this Agreement. RVPUBUSB\651318 -19- (c) 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. (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 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 CITY, the performance thereof shall continue to be a condition precedent to CITY'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. 10. MISCELLANEOUS PROVISIONS. 10.1 Recordation of Agreement. This Agreement and any amendment or cancellation thereof shall be recorded with the Riverside County Recorder by the Clerk of the City Council within ten (10) days after the City enters into the Agreement, in accordance with Section 65868.5 of the Government Code. If the parties to this Agreement or their successors in interest amend or cancel this Agreement, or if the CITY terminates or modifies this Agreement as provided herein for failure of the OWNER to comply in good faith with the terms and conditions of this Agreement, the City Clerk shall have notice of such action recorded with the Riverside County Recorder. 10.2 Entire Agreement. 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 that 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. 10.3 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 Sections 4 and 5 of this Agreement, including the payment of the Development Impact Fees set forth therein, are essential elements of this Agreement and CITY 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. RVPUBUSB\651318 -20- 10.4 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. 10.5 Section Headings. All section headings and subheadings are inserted for convenience only and shall not affect any construction or interpretation of this Agreement. 10.6 Singular and Plural. As used herein, the singular of any word includes the plural. 10.7 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 that 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 expressly provided for herein. 10.8 Time of Essence. Time is of the essence in the performance of .the provisions of this Agreement as to which time is an element. 10.9 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. 10.10 No Third Party Beneficiaries. This Agreement is made and entered into for the sole protection and benefit of the parties and their successors and assigns. No other person shall have any right of action based upon any provision of this Agreement. 10.11 Force Majeure. 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 injunctions), 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. RVPUBUSB \65 13 18 -21- 10.12 Mutual Covenants. The covenants contained herein are mutual covenants and also constitute conditions to the concurrent or subsequent performance by the party benefitted thereby of the covenants to be performed hereunder by such benefitted party. 10.13 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. 10.14 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. 10.15 Jurisdiction and Venue. Any action at law or in equity arising under this Agreement or brought by a 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. 10.16 Project 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 CITY and OWNER is that of a government entity regulating the development of private property and the owner of such property. 10.17 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 acknowledgment 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. 10.18 Eminent Domain. No provision of this Agreement shall be construed to limit or restrict the exercise by CITY of its power of eminent domain. RVPUBUSB\651318 -22- 10.19 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 Community Development 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. OWNER for itself, assigns and successors hereby waives the provisions of the Hague Convention (Convention on the Service Abroad ofJudicial and Extra Judicial Documents in Civil or Commercial Matters, 20 U.S.T. 361, T.I.A.S. No. 6638). 10.20 Authority to Execute. The person or persons executing this Agreement on behalf of OWNER warrants and represents that he or she/they have the authority to execute this Agreement on behalf of his or her/their corporation, partnership or business entity and warrants and represents that he or she/they has/have the authority to bind OWNER to the performance of its obligations hereunder. RVPUBVSB\651318 -23- IN WITNESS WHEREOF, the parties hereto have executed this Development Agreement on the last day and year set forth below. RVPUBUSI3\651318 OWNER RIVERSIDE VALLEY LAND COMPANY, LLC, a California limited liability company By: Its: Dated: CITY CITY OF SAN JACINTO By: Name: Title: Dated: [Signature Page to Development Agreement No. -24- 1 RVPUBUSB \6513 1 8 EXHIBIT "A" (Legal Description of the Property) Exhibit A Parcels 3 and 4 of Parcel Map No. 7183, in the Cityof San Jacinto, County of Riverside, State of California, as shown by map on file in Book 37, Pages 76 and 77 of Parcel Maps, records of Riverside County, California. Excepting therefrom that portion of said land described in deed recorded June 29, 2001 in Document No. 2001-298569 of Official Records of Official Records described as follows: Parcel 4120-32A and Parcel 4120-32B as shown on Record of Survey filed in Book 110, Pages 70-78 of Record of Survey on file with the Clerk of the Recorder, County of Riverside. 2 RVPUBUSB1651318 EXHIBIT "B" (Map of the Property) Exhibit B ,Uorui ni m 117AL Lul-SPLIE OR BUILDING SIRE ORDINANCES, 330 r O O 10.00 AC ML 39.77 AC ML (3g37a 375 r7S's O ASSESS R'S MAP BK431 PG.09 Rivers de County, Calif. PAR.EX 4120-338 143 PAR. 4120.328 JL.I,,.0 CITY OF S 4J.,N,1VV N JACINTO i.R.A. 010-126 010-009 010-113 010-114 1290 8H0 000 Caa��� LI IC O 39.09 AC ML 1290 /� /'1K-72y 4,( 30)1125 a9 I 10 9.75 AC ML 545.05 4.95 AC ML 955 549.09 15061 4 11 m. 13 1.89 AC ML 154 %b 4 575.09 39 5.03 AC ML 2.84 AC ML a+3J� 2W 77 154 77 a 15 Ce g I 1$ 1.89 AC ML ‘318i 159 1 25 18,22 AC ML 027 7,00 AC ML 305.40 ,1,1 8.74 AC MIL 6CO) !Li14 PM 37/76-77 PARCEL MAP NO 7183 MB 8/357 S,D, SAN JACINTO LAND ASSOCIATION RS 110/70-78 201.52 20 4,83 AC MLA 201.52 TRA 010-009 190 0� 0 5,88 AC ML N i3o9 190 40 19.87 AC ML H00 EXHIBIT "C" (Development Plan) Tentative Tract Map 30944 (Northwest Corner of Cottonwood Avenue and Lyon Avenue) RVPUBVSB\651318 Exhibit C PROP r Jr it lr fr L If a' r ACcPOA!�e IG '°T.niaL ZX !3 TAC tT1/1rn. ( �1 so IGEALW PAM= Aa UN TYPICAL STREETCTION LYON AVE POD 7O cr4rlT 6 t a V 10 BY F4C4T(D) ST CO.EJ. BAST Jr it rr 7r I Tr Fr r AC PA/WT P4rNT s'"r ar coaRse .,, mtaca4nr L-PID?1D LR2U/N TYPICAL STREET SECTION COTTONWOOD NO r00 AVENUE SIv. CO. YTD. NOT TO SCALE TYPICAL STREET SECTION STREETS 'A' - NOT TO SCALE SEAL S SY GRAPHIC SCALE O i a• IN THE CITY OF SAN JACINTO, CALIFORNIA TENTATIVE TRACT MAP NO. 30944 Imd (1TL Yin ) 1 loch - 100 L APPROVED Mk -i- PREPARED JT DATE R.C.E. NO. EXP. DATE TEIP. RETENTION BASH POT ELF/ . 1407.7 VOLUME - 167,160 Cr AL !MITT =IMaC - PB-7a .- Pau 1 • 7 line 1011 41-- �),1 • i. P6,M13' P5.1111 ,11 .. _, 1� i 6123 n 101' PR.30. fl, - P8.11} 1. LOT 'A' AND 'B' TO BE LANDSCAPED AND MAINTAINED BY THE LIGHTING AND LANDSCAPE MAINTENANCE DISTRICT. 2. A SUMP PUMP WILL BE INSTAL I PS IN THE DETENTION BASIN IF INFILTRATION DOES NOT PROVE A DRY BASIN WITHIN 72 HOURS AFTER A STORM EVENT. B VA7 0I Para PB-ID BLAINE A. WOMER CIVIL ENGINEERING 65' 34 00' ^3O s 63' 00' 1.1 3. LOTS 51, 62, AND Si ARE TO BE USED AS A TEMPORARY RETENTION BASIN UNOL THE CONSTRUCTION OF UNE 'E'. UPON CONSTRUCTION OF UNE 'E'. LOTS SHALL BE REGRADED, COMPACTED AND MADE SUITABLE FOR HOUSES TO BE BUILT. 4. BASIN SIZE IS BASED ON DETENTION OF A 100 YR, 24 HOUR STORM IN THE DEVELOPED CONDITION. • PLANNING • SURVEYING 'ENGINEERING GI • PUBLIC WORKS ks,,,,,,,,,....„......„ SAN u(251TD RESERVOIR l ITE COIlONrDOD AVE. 7TH STREET VICINITY MAP NTS OWNER GILBERT P. CHACON TRUSTEE OF THE GILBERT P. CHACON TRUST 710 CAWSTOA AVE SAN JACINTO, CA 92582 (999)654.1535 APPLICANT NORTH RIVERSIDE VALLEY LAND COMPANY 4405 MANCHESTER AVE, S TE 106 ENCINITAS, CA 92024 (760)436.1454 DESCRIPTION PARCELS 3 AND 4 OF PARCEL MAP 7183, INTHECTIY OF SAN JACINTO, COUNTY OF RIVERSIDE, STATE OF CALIFORNIA. AS SHOWN HY MAP ON FILE IN HOOK 37, PAGES 76 & 77 OFPAR r1a MAPS, RECORDS OF RIVERSIDE COUNTY.CAIRIDRNIA. EXCEPTING THEREFROM THAT PORTION OF SAID LANDDESCRIBED IN DEED RECORDED JUNE 29, 2001 IN DOCUMENT NO. 2001-298569 OF OFFICIAL RECORDS DESCRIBED AS FOLLOWS: PARCEL 4121-32A AND PARCEL 4127-32B AS SHOWN ON RECORD OF SURVEY FILED IN BOOK 110. PAGES 70-78 OP RECORD OPSLRRVEY ON FILE WITH THE CLERK OF THE RECORDER, COUNTY OF RIVERSIDE. ASSESSOR'S PARCEL NO. 431a190 036 & 037 GROSS ACREAGE 31.03 ACRES DENSITY 3.43 DU/AC NUMBER OF LOTS 103 EXISTING / PROPOSED ZONING R-I PROPOSED LAND USE RESIDENTIAL ADJACENT LAND USE NORTH-FARM/RESIDENTIAL EAST'-RESIDEN IAL. SOUTH -RESIDENTIAL WEST -VACANT PUBLIC UTILITIES GAS - SOUTHERN CALIFORNIA GAS CO. ELECTRIC - SOUTHERN CALIFORNIA EDISON CO. WATER - EASTERN MUNICIPAL WATER DISTRICT SEWER . EASTERN MUNICIPAL WATER DISTRICT TELEPHONE- VERIZON CABLE - ADPLPHIA CITY OF SAN JACINTO, CALIFORNIA RIVERSIDE VAT.T.FY LAND CO. Rama u 12544. 41556 1 F1..Ld. A.., 00. F. Ph..,. (020$68-1727 F . (M8)64,6-.147 ►v1 Oh. UT 64086. 1133 Cw. Con. fk. AS021hoIx (69J]6..9-7� Fm (6O112i1-2211/ QFSCRIPI)ON /34W APPRQVA( TENTATIVE TRACT MAP NO. 30944 SHL.E.I NO.: 1 OF 1 SM Z,IDRAWINGSIR2002001\ALT2 dwg, 01/08/2003 09:3629 AM, grant RVPUBUSB\651318 EXHIBIT "D" [intentionally left blank] Exhibit D EXHIBIT "E" (Development Impact Fees) Type Amount Payment Timing Public Buildings $65.00/acre Final Occupancy Issuance Regional Transportation $820.00/acre Final Occupancy Issuance Local Transportation $500.00/acre Final Occupancy Issuance Flood Control Improvements Area 1 Area 2 $5,990/acre $4,975/acre Final Occupancy Issuance Traffic Signalization SF Units MF Units Subdivision Commercial $150.00/DU $100.00/DU $2,700/acre $2,700/acre Final Occupancy Issuance Carpool Mitigation $90.00/DU Final Occupancy Issuance Water Capital Improvement Residential Commercial $2,930/DU Same as EMWD Final Occupancy Issuance City Sewer Fee Residential Commercial $200.00/DU $200.00/ 15 PFU Final Occupancy Issuance Public Safety Structures Residential Commercial $50.00/DU $0.01/sf of lot area Final Occupancy Issuance Public Safety Equipment Residential Commercial $10.00/DU $0.01/sf of lot area Final Occupancy Issuance Park Fee SF Detached SF Attached 2-4 Units 5+ Units Mobilehomes $525.24/DU $314.46/DU $460.62/DU $402.48/DU $290.52/DU Final Occupancy Issuance Undergrounding Fee $50.00/lineal foot (street frontage) N/A Installed by OWNER Street Trees $250.00/tree N/A Installed by OWNER Building Permit Surcharge 1% of Total Permit Fee (minimum of $1.00, Final Occupancy Issuance RVPUB\JSB\651318 Exhibit E Fire Station Residential itigation Fee Commercial/Industrial Current Planning Residential Commercial $577.00/DU $527.00 (Rancho San Jacinto) $0.34/sf of building area Final Occupancy Issuance Advanced Planning Residential Commercial $50.00/DU $0.02/sf of building area Final Occupancy Issuance Lighting, Landscaping and Maintenance District Fire Hydrant Paint and Blue Dot Fire Sprinklers Water Meters 3/4" 1" 1-3/4" 2" R VP UBUS B16513 18 $150.00/DU $0.06/sf of building area Final Occupancy Issuance $1.00/1inear foot (street frontage) $200.00 minimum, up to four $50.00 for each additional Payable at time of recordation of final map Optional $160.00 + $0.50/head Final Occupancy Issuance $400.00 each $500.00 each $750.00 each $1,000.00 each Exhibit E Payable at Request it agreements. from the set of swering "yes" to a s in the state. ral," according to ether with :lassiied as urban is located in y Planning nt of Finance, r 1986 were int for illegal and reported in t the time the re or after the )f the constraints on !nts." Unpublished y vary in the ;ome of the reement, specifying iney to be donated )ns of approval or iggesting, for Environmental county Conditional lit to be certain of all :stimates the iny, April 1, 1980. ge Point Property, The Irvine ne 9, 1981, smith, May 7, 1985. prnent Agreement 981; and Solano Development), May rith Terry Nevins, es, December 1981. Morgan Hill, 21League of California Cities Development Agreement Task Force, Development Agreement Manual (Sacramento: Author, December 1980), p. 1.1. 22Ca1. Gov't Code § 65866. 23Ca1. Gov't Code § 65865.4. 24Ca1. Gov't Code § 65865.2. 25Ibid. 39 ANTA MONICA'S OLORADO PLACE AGREEMENT RITA FITZGERALD AND RICHARD PEISER our years ago, the Urban Land Institute reported on a controversial case in- volving the use of a development agreement between the builders of a large, two-phase, S200 million mixed -use development and the city of Santa Monica, California.' In that instance, the development agreement was negotiated after a new city council had approved a building moratorium on all commercial construction in the city, including the subject development, Colorado Place. The developers discovered to their dismay that the poorly defined "vested rights" law in California did not adequately protect them from such sudden changes in the law, despite the fact that they had complied with all requirements for the permit and had already invested S2 million in the project. After long and costly negotiations, a development agreement was finalized and the developers were permitted to complete Phase I and to begin planning ap- provals for Phase II. It was at that point that O'Malley and Davis discussed the case in their arti- cle. Unfortunately, the story (and the development agreement) unraveled follow- ing publication. This chapter picks up the thread of the case and reports on the subsequent modifications to the development agreement.2 In part because the Santa Monica case has been highly publicized (i.e., meriting national attention on the television news show 60 Minutes), the authors believe that the development agreement may become standard procedure whenever large, multiuse, multiper- mit developments are planned. Colorado Place offers a number_of lessons to de- velopers in other locales, both in terms of potential pitfalls in volatile political en- vironments and possible means of protection. 40 H _d oversial case in- uilders of a the city of Santa was negotiated ill commercial J.ado Place. The sted rights" law hanges in the for the permit it was finalized gin planning ap- ;ase in their arti- Jravele d follow- *eports on the because the nal attention on ie development 'use, multiper- lessons to de - tile political en - Welton Becket Associates, an old-line architectural and engineering design firm, originally acquired the 15-acre property with the intention of building a new headquarters on the land and developing the rest for investment. The mixed -use project, designed for a total of 1.8 million square feet, was to be developed in two phases. Phase I was to contain three office buildings, a central plaza for public events, assorted restaurants, and underground parking; Phase II would include a 400-room luxury hotel, two office buildings, and a health club. After a year and a half of discussions with city officials concerning the plan- ning and design of the project and financing arrangements, Becket was granted an initial permit for the first phase, permitting excavation and construction of footings and foundations. At that point, they had invested 52 million and had made numerous com- mitments through signed leases and contracts, construction loans, permanent fi- nancing, and move -in dates. Three weeks later (April 1981), a new, radical city council, recently elected on a "renters' rights" platform and intensely hostile to business and development, met for the first time and promptly imposed a moratorium on all commercial construction. Becket was then informed that neither the fact that it had been granted an initial permit for excavation and footings nor the fact that it would suffer signifi- cant economic hardship if forced to abandon the project was sufficient under California law for rights to vest in property. (Under California law, rights vest in a project only if "substantial" construction has already occurred following each per- mit. "Substantial" generally has meant that a significant amount of the basic structure, i.e., floors, walls, and so on, has been completed, not just rough grad- ing and installation of utilities and improvements before building.)3 Shortly thereafter, Becket applied for an exemption from the building mor- atorium and was turned down; in the interim, the moratorium had attracted an immense amount of publicity and debate, not only in Santa Monica but also across the country. After denial of the exemption, Becket found itself in a precarious financial position, unable to perform under its multimillion dollar construction contracts. Under those circumstances, the company felt it had no choice but to negotiate a development agreement with the city and get on with the project, hoping that the development agreement would eliminate the endless stream of discretionary reviews required under the current permit procedures and,Jrnore important, pro- tect the developer against the type of political changes that can bring a large, long-term project to an abrupt halt. For its part, the city council also sensed that it did not have the widespread support of citizens for its antidevelopment policies; it was thus anxious to save face by exacting public welfare projects (i.e., a neighborhood park) that would be 41 popular with constituents. With this objective in mind, the council demanded several commitments from Becket: • 100 units of low- to moderate -income housing-50 units for Phase I and 50 units for Phase II. • a 3.5-acre park open to the public 24 hours a day (Phase II). • a 2,000-square-foot daycare center with an outside play area, to be completed in Phase I and necessitating the expenditure of $5,000 for equipment that was to be leased to an operator for S 1 a year. • energy -saving systems like solar domestic hot water systems and economizer systems on air conditioners. • affirmative action and job -training programs for the surrounding neighborhood. • a hotel with at least 250 rooms (the city originally vetoed the hotel until it real- ized what the hotel would mean in terms of tax revenues). • an art and social services fee of 1.5 percent of the land and development cost (amortized over 20 years and offset almost entirely by operating costs for the public space). • other expenses and improvements like wider streets and traffic lights. • a traffic and emission abatement program to be promoted among tenants, en- couraging the use of flex -time, ride sharing, and car pools. In exchange for these commitments, the city allowed Becket to complete Phase I of the project and to begin the approval and financing for Phase II. Phase II, costing S120 million, was to include additional restaurants and re- tail shops, two office buildings, a 350-room luxury hotel in the center, and a 3.5- acre public park. The hotel would be nine stories, the office buildings only three to five stories. It is somewhat ironic, considering that the moratorium was largely in re- sponse to fears about high-rise development, that Becket was ultimately forced to build up to five stories in its Phase II office buildings, higher than the three-story structures originally planned. This change came about largely because of the city's demands for a public park as part of the development agreement. Because the park encompassed 3.5 acres, Becket was forced to squeeze the remaining two of- fice buildings onto a smaller portion of the site and thus build vertically, not horizontally. As a result of these new restrictions, the city had to make some concessions to Colorado Place by relaxing height limits for Phase II of the project: 65 feet for the office structure and 95 feet for the hotel, both of which were higher than lim- itations allowed under existing zoning. (Without these variances, the project would not be economically feasible.) Some other minor exemptions, such as a re- duction in mandated number of interior parking spaces, were granted as well. Phase I was completed in January 1984. 42 l demanded iseIand 50 be completed in nt that was to economizer neighborhood. tel until it real- lopment cost costs for the fights. tenants, en- t to complete Phase II. taurants and re- ster, and a 3.5- ngs only three largely in re - lately forced to the three-story (use of the city's Because the naining two of- :ically, not )me concessions ect: 65 feet for higher than lim- the project ls, such as a re- ited as well. UPDATE : 'r Implementing the agreement for Phase II was even more precarious than for Phase I, primarily because the agreement was not specific enough and required many time-consuming negotiations and amendments and because financial re- quirements of the project's lenders and terms of the development agreement were not sufficiently coordinated. This problem came to the fore as the developer tried to arrange financing for Phase II. In addition, because lenders for Phase II had not yet been located, it was not known how future lenders would react to the previously negotiated terms of the development agreement. In early 1984, Becket found itself S 10 million short of the money needed to finance Phase II. Citing major cost overruns as a result of the six months of in- activity caused by the building moratorium and by a month -long carpenters' strike, Becket asked the city to apply for a $10 million Community Development Block Grant from the federal government on Becket's behalf. (The development agreement stipulated that the city was to cooperate in helping Becket secure fi- nancing if Becket so requested.) The city was to be repaid not only the loan plus interest but also an additional $5 million from a percentage of the hotel's gross room receipts and receipts from office rentals. The city council held a special meeting to approve the city's action to seek such federal finarcing for Becket. Two months later, however, the Department of Housing and Urban Development (HUD) denied the application, and Becket an- nounced in June 1984 that the S120 million second phase had been postponed indefinitely because of rising interest rates, the financial instability of the project's lead lender, and an inability to obtain leasing commitments for Phase II's office space. It thus came as no surprise when, two months later, Becket began to ac- tively seek a buyer for all or part of the project. Subsequently, in January 1985, Colorado Place was sold to Southmark Pacific Corporation, a subsidiary of the Dallas -based Southmark Corporation, one of the largest diversified real estate companies in the United States. Considered something of a maverick in the con- ventional real estate community, Southmark Corporation had built a reputation (and a company with S7 billion in assets before the 1987 collapse of the Texas real estate market) on its knack for buying financially troubled companies and making them profitable. RENEGOTIATING THE DEVELOPMENT AGREEMENT In May 1985, Southmark Pacific obtained an extension of the original deadline to begin construction on Phase II (which had been stalled since June 1984) from August 1985 to August 1986. Five months later, it announced that it would seek substantial changes in the development agreement it had inherited from Becket to allow time to review the plan for Phase II, infuriating the city. The renegoti- ated agreement included significant modifications: 43 1. To cut back the size of the hotel from 396 to 262 rooms but increase its height, i.e., to build one 13-story hotel tower instead of two nine -story ones. The increased height would be offset by a larger setback. 2. To move the 3.5-acre park off site and put another office building in its place and build a 1.5-acre park on site, thus increasing the city's park land. 3. To pay the city S2.5 million in cash immediately instead of building the re- maining 59 units of low-income housing over the next five to seven years. The land upon which the original 41 units were built was deeded to the city. The proposed changes increased the ire of the city council and neighbor- hood groups. Southmark Pacific then offered to increase the hotel's height to 16 stories and to leave the original park on site, contending that a 16-story hotel would not violate the development agreement because the original agreement used an averaging formula to determine allowable heights if offset by lower -rise structures. It further maintained that the hotel's height had to be increased to make the project financially feasible, especially if the park were to stay on site. When the city flatly refused to process plans for any change in height, Southmark brought a lawsuit, claiming that the city was obligated to approve its plans for the hotel and requesting the court to clarify the language of the develop- ment agreement. After Southmark Pacific initiated legal action against the city, the neighborhood interest group, Mid -City Neighbors, with which it had been dealing, broke off talks with Southmark. At that point, the city and Southmark Pacific were at an impasse, and whether Phase II would ever be built was seriously in doubt. But after repeated attempts at renegotiation, a tentative out -of -court settlement of the dispute be- tween the city and Southmark was reached in May 1986. The terms of the present development agreement are as follows: 1. The hotel would be relocated from its initially proposed site to a newly ac- quired 11-acre site adjacent to the project (to be known as Phase III). The ho- tel would be limited to nine stories, and the city would permit the developer to substitute a third office building of five stories on the original hotel site in Phase II. Southmark Pacific had originally acquired the nearby land with the intention of moving the park. Coincidentally, it was able to acquire more land, allowing it to relocate the hotel on the adjoining location. 2. The 3.5-acre park would be developed in the original location on site. 3. A third phase, including the hotel and other commercial space, was tentatively approved. The preliminary approval for Phase III provided the motivation for the developer to delay the investment in Phase II's hotel. Interestingly, the requirement to build 59 low- to moderate -income housing units was not included in the agreement, although it was expected that South- mark would fulfill its original obligation to build them anyway. 44 As of 1987, relations between Southmark Pacific and the city of Santa Monica were amicable. How long it would last, however, even with a finalized agreement, was anyone's guess, given the contentious history of the develop- ment. (Appendix B contains Amendment No. 4 and two Memoranda of Clarifica- tion for the Colorado Place Development Agreement.) LESSONS LEARNED Three important insights emerge from the experience with Colorado Place: 1. Development agreements represent a useful mechanism from the developer's perspective for protecting development rights in unstable and/or changing political climates. In Santa Monica's case, the city council in the course of two years had undergone rapid ideological swings that wreaked havoc with com- mercial development planning. In 1980, for example, when Becket was first engaged in discussing and designing the project, the city council's prevailing at- titude was to support development and business interests. In less than a year, a new city council enacted a virulently antibusiness agenda, and two years later, the council was characterized by a moderate attitude toward development. Al- though Santa Monica doubtless represents an extreme case, the changing de- mographic picture there in 1980 and 1981 (the proportion of renters had reached 80 percent of the population) may have indicated somewhat that a change in ideology was imminent. In short, such agreements, which are costly to the developer in terms of concessions to the city for protecting development rights, may be economically justified as "another cost of doing business" in un- certain times and places. Development agreements at least offer the developer an opportunity to freeze the ground rules under which he can build. 2. Development agreements should be negotiated before starting construction.) EGrorad—o firke, ifie—d-e-ieFoTmeenfa-gieement was negotiated afteithe dvl- oper was already committed to signed leases and construction contracts. Nego- tiations under such pressure resulted in a one-sided agreement, in precious time lost, and in huge cost overruns. Negotiating the agreement before incep- tion of construction helps to assure the developer that, once finalized, no sur- prises in land use regulations will occur later. Somewhat conversely, it can also be helpful if the development agreement is not too specific to allow for flexibil- ity in the face of changing circumstances. For example, it was the vagueness of the clause governing average building height that gave Southmark Pacific the leeway to interpret the terms of the clause to its own economic needs and pri- orities. Language that was too specific may have locked, the developer and all subsequent owners -in -interest into economically infeasible, long-term com- mitments. Development agreements are still extremely controversial, even where they have been in use several years. The California state legislature legitimized development agreements in 1979,4 but they have not been fully tested in 45 courts The controversy centers on whether a community can bargain away its police power —its right to engage in actions to protect the health, safety, and welfare of its citizens. Opponents of development agreements claim they are not valid because they surrender rights that cannot, even voluntarily, be sur- rendered. Thus, development agreements provide some additional insurance that developers can proceed under changing political and across-the-board land use dicta, but they do not provide guarantees. Developers may still find their projects halted under court -ordered injunctions as the development agreements themselves are litigated. One advantage, however, is that developers and mu- nicipalities will likely be on the same side. 3. Development agreements are a stop -gap measure to deal with the gradual erosion of vested rights. The cost of this erosion ultimately may be expensive to everyone. As made clear in the case of Colorado Place, the need for a devel- opment agreement between the developers and the city arose only because the vested -rights rule in California does not adequately protect the developer from arbitrary and sudden changes in zoning, moratoriums, and other regulations. In California, development rights (the guaranteed right to proceed with devel- opment) do not vest until the final building permit is received and a "substan- tial" amount of framing is complete. In complex multipermit developments like Colorado Place, it is impossible to get all permits at once and have immediate "substantial" construction. In the critical interim between the granting of the permit and "substantial construction," the developer and investors are clearly at risk. Development agreements have become widely used as a stop -gap mea- sure to provide the developer with the guarantees necessary to encourage risk taking between inception of a project and vesting under California law. Who really pays for the concessions extracted from developers in such agreements? Naturally, the costs are passed on to users in the form of higher rents and sale prices. Perhaps the real need is tor theFeroded vested-right„1aw, which will serve to protect both the private developer who has complied in good faith with current rules and the ultimate consumer who bears the cost. A POSTSCRIPT Since this paper was first written, Southmark Pacific (now called SoPac Real Es- tate Group) sold Phases I and II to Maguire Thomas Partners of Los Angeles. The sale, which closed in September 1988, provided for Southmark to complete con- struction of the first two buildings in Phase II (313,000 square feet) and excava- tion of the third building. Maguire Thomas, in partnership with IBM, which oc- cupied part of the space, took over all leasing, management, and the remaining construction. A development agreement for Phase III was negotiated with the city of Santa Monica for 1 million square feet. Phase III was sold in February 1989 to a partnership between Lowe Enterprises of Santa Monica and a pension fund. The 46 sale relied entirely on the development agreement, which is said to account for two-thirds of the value. The developer learned a great deal about negotiating de- velopment agreements from the first two phases. In particular, Southmark refused to show detailed plans in the agreement for Phase III, simply incorporating pieces of the city's zoning code. Southmark knew from experience that it would waste time and money arguing about plans that would eventually be changed anyway. It also refused to build a daycare center, instead giving money to the city to allow the center to be built where it was needed rather than to serve the employees of the building. NOTES 1David O'Malley and Richard F. Davis, "Working with Communities: A Developer's Guide," Community Builders Handbook (Washington, D.C.: ULI—the Urban Land Institute, 1985), pp. 109-10. 2The authors gratefully acknowledge a grant from the Urban Land Institute that provided support fo this research. 3See Ann West, Public Resource Code (1986), § 30608, "Vested Rights, Prior Permits, Conditions", and especially Avco Community Developers, Inc. v. South Coast Regional Commission, 17 Ca1.3d 785 (1976), cert. denied, 429 U.S. 1083 (1977). 4Cal. Gov't Code § 65864 et. seq., effective 1980. 5For a fuller discussion of both the enforceability of development agreements and the history of the vested -rights doctrine, see Richard F. Davis, "Securing Vested Rights to Land Development," Real Estate Review 13: 2 (Summer 1983): 72-77. th 47 4. RANGE COUNTY'S USE OF DEVELOPMENT AGREEMENTS DEBORAH M. ROSENTHAL mong the most ambitious and innovative uses of development agreements is the Foothill Circulation Phasing Program (FCPP) in Orange County, California. Adopted in 1987, the program calls for developers to finance more than S250 million in arterial roads in rapidly growing areas of south Orange County. The private commitments to fund roads in advance of related develop- ment were obtained through a package of 10 development agreements approved over four months in early 1988. In return for advance funding, the agreements lock in development rights for more than 60,000 dwelling units for periods of up to 20 years. After the developer -financed road program was adopted, the advantages of development agreements quickly became apparent to county staff. Within months, the program was expanded to include a variety of other public facilities and roads not in the program. As a result, nine; additional development agree- ments were approved between October 198_7* and May 1988 for more than 5200 million in additional roads and other facilities in adjacent areas. While the politi- cal volatility of growth has halted further expansion of the program, the FCPP re- mains a prime example of the use of development agreements to implement an innovative public/private partnership. BACKGROUND Orange County, with well over 2 million residents, is the third most populated county in California. It also has more than 1 million jobs, giving it one of the strongest and most dynamic economic bases in the state. But the strength of the 48 is 7e P )0 e- local economy has also accelerated the influx of new residents and daily cornmu ers, the development of available land, and the demand for public facilities. For a time during the 1970s, Orange County was the fastest -growing county in the United States. Although the pace has slowed somewhat in recen years, total population is expected to increase by nearly 50 percent by 2010 (from 1984 levels), over half of this growth the result of in -migration. Most of the popu- lation growth is predicted to occur in south Orange County, an area that until re cently was largely undeveloped. In southeast Orange County, for instance, the Southern California Association of Governments (SCAG) projects 510,000 new units of housing and 450,700 jobs between 1984 and 2010.1 In addition, delibe ate public policies are being pursued to compensate for the projected imbalance in housing, which together with market forces should lead to creation of major employment centers in the area. Traffic congestion is the most obvious symbol of this explosive growth. Fo the Los Angeles metropolitan area, including Orange County, SCAG predicts that the number of vehicle -miles traveled will increase from 221.3 million miles in 1984 to 376.2 million in 2010, with total hours of delay increasing from 629,000 to 10.1 million. The relatively high growth projections in sections of Orange County suggest that, if current trends continue, the greatest impacts of traffic will occur in the newer areas. Traditional sources of funding for infrastructure had been overwhelmed by the magnitude of the road construction needed in the south county. Although 0 ange County had adopted an aggressive fee program in conjunction with exten- sive requirements for road construction as a condition of approving subdivisions, the resulting traffic improvements lagged behind development and were largely uncoordinated. The county is also legally restricted from requiring developers to pay more than their prorated share of construction costs, a serious problem when earlier developments were not required to pay the full range of current fees. At the same time, limits established by Proposition 13 and the Gann amendment prevent the county from using general fund monies to complete construction of needed road improvements. In an effort to relieve this planning and financing gridlock, the county be- gan discussions in early 1987 with 11 major south county landowners about a comprehensive program to link development with constructing and funding roads. Over more than a year, the group identified key roadways, developed cost estimates for completion of the arterial system, and prepared sophisticated traffic generation analyses linking development to impacts on specific roadways over time. The group also calculated the optimum development capacity of the area when fully built. The FCPP was adopted as a result of this unusual public/private coopera- tive effort. In general, the program provides a timetable, a financing strategy, and service standards for roadway improvements in the area. Significantly, it also phases residential and commercial development, making them contingent on the prior completion of key traffic improvements or "milestones." With the use of 49 IF rs nents ace 'range op- pved nts of up ;es of lities �e- 5200 )oliti- :PP re- itan ated he of the local economy has also accelerated the influx of new residents and daily commut- ers, the development of available land, and the demand for public facilities. For a time during the 1970s, Orange County was the fastest -growing county in the United States. Although the pace has slowed somewhat in recent years, total population is expected to increase by nearly 50 percent by 2010 (from 1984 levels), over half of this growth the result of in -migration. Most of the popu- lation growth is predicted to occur in south Orange County, an area that until re- cently was largely undeveloped. In southeast Orange County, for instance, the Southern California Association of Governments (SCAG) projects 510,000 new units of housing and 450,700 jobs between 1984 and 2010.' In addition, deliber- ate public policies are being pursued to compensate for the projected imbalance housing, which together with market forces should lead to creation of major employment centers in the area. Traffic congestion is the most obvious symbol of this explosive, growth. For the Los Angeles metropolitan area, including Orange County, SCAG predicts that the number of vehicle -miles traveled will increase from 221.3 million miles in 1984 to 376.2 million in 2010, with total hours of delay increasing from 629,000 10.1 million. The relatively high growth projections in sections of Orange aunty suggest that, if current trends continue, the greatest impacts of traffic will ccur in the newer areas. Traditional sources of funding for infrastructure had been overwhelmed by he magnitude of the road construction needed in the south county. Although Or- ange County had adopted an aggressive fee program in conjunction with exten- sive requirements for road construction as a condition of approving subdivisions, the resulting traffic improvements lagged behind development and were largely uncoordinated. The county is also legally restricted from requiring developers to pay more than their prorated share of construction costs, a serious problem when earlier developments were not required to pay the full range of current fees. At the same time, limits established by Proposition 13 and the Gann amendment prevent the county from using general fund monies to complete construction of needed road improvements. In an effort to relieve this planning and financing gridlock, the county be- gan discussions in early 1987 with 11 major south county landowners about a `comprehensive program to link development with constructing and funding roads. Over more than a year, the group identified key roadways, developed cost estimates for completion of the arterial system, and prepared sophisticated traffic generation analyses linking development to impacts on specific roadways over time. The group also calculated the optimum development capacity of the area when fully built. The FCPP was adopted as a result of this unusual public/private coopera- tive effort. In general, the program provides a timetable, a financing strategy, and service standards for roadway improvements in the area. Significantly, it also phases residential and commercial development, making them contingent on the prior completion of key traffic improvements or "milestones." With the use of 49 traffic generation studies, the milestones were designed to ensure the opening of arterial roads in time to handle related automobile traffic. Specific improvements to arterial highways, intersections, and auxiliary roadways are to be funded through bonds secured against the value of the land and fees assessed on all new development in the area. The total cost of the im- provements is estimated at $235 million (1987 dollars), of which two-thirds will come from the bonds. Although roads are designed to full capacity, the program also limits total development rights in the area to 80 percent of the approved maximum in the General Plan. In the decade since passage of the California Development Agreement Act, the Orange County Board of Supervisors had expressed little interest in develop- ment agreements. At best, they regarded agreements as insurance for private de- velopers with little public advantage. The realities of the bond market, however, led Orange County to accept the necessity for development agreements to imple- ment the FCPP. It was generally agreed that the proposed bonds could not be sold without assurances that development would occur at the planned intensity and within the planned time frame. Without the increased value resulting from development, the land simply would not support the annual fees required to ser- vice $235 million in bonds. The 20-year term of most of the FCPP development agreements was deemed necessary to permit full repayment of bonds. A package of development agreements to protect planned development in the south county was the key to obtaining bond financing for roads to service existing and future development in the area. Although officials generally agreed on the concept of the FCPP, discussions might have continued indefinitely as individual landowners sought to better their positions against competing area developers. In late 1987, however, south county residents proposed a stringent antigrowth initiative. Recognizing that the initiative would endanger the FCPP by increasing costs and reducing permitted develop- ment, the county and major landowners worked feverishly to complete the FCPP before the election in June 1987. The Board of Supervisors approved the first FCPP development agreements two weeks after the petitions for an initiative were filed with the county, and the last development agreements were approved one day before the election deadline. To an unusual degree, Orange County stressed landowners' provision of ad- ditional public benefits to justify the development agreement program. Within months after the first discussions, the county had added fire protection, a sheriff, a library, and child care to the list of items to be prefunded by participating devel- opers. Non-FCPP landowners were required to improve substandard intersec- tions, construct additional roadways, and prepay road fees upon demand. Before the last development agreements were approved, construction of traffic signals, fees for traffic signals, noise attenuation programming, and school funding were added to the list of required public benefits. Certain developers were also re- quired to dedicate additional land to parks, hiking trails, and open space, provide low-income housing, and prepare special single -purpose plans. The Planning 50 e Commission and Board of Supervisors scrutinized the adequacy of each public benefit package and demanded proof that it could not be obtained through the normal process of approving subdivisions. A key factor in the success of the FCPP was creation of a special develop- ment agreement team within the county's Environmental Management Agency. The team handled all negotiations with the landowners and had authority to re- solve disputes among competing interests within the county. Access to a single source of information and decisions was critical to development of the trust re- quired to create the FCPP. Several landowners suggested that the county con- tinue the "special project approach" as the program is implemented. ELEMENTS OF THE FCPP AGREEMENTS Orange County employed special attorneys to draft a standard development agreement and to negotiate the language of any individual provisions. The basic document contains standard provisions governing key concepts, such as vested rights, limitations on damages, participation in the program, reservation of author- ity, limits on future exactions, cooperation in bond financing, and future assign- ment. Special counsel, in cooperation with county counsel, determined that the validity of the agreements would be supported by the use of standard language throughout the program on these critical issues. The Board of Supervisors ap- proved use of the standard form in December 1987 but permitted deviation when necessary to reflect special circumstances. The two most significant provisions to landowners involve vested rights and limitations on d niaages. the FCPP agreements follow the state enahjing legisla tlo" n'Sy frreeaing existing land use regulations rather than vesting rights to any par- ticular development_ The crucial provision ih the standard agreeentstates that "the rules, regulations, and official policies applicable to and governing the devel- opment of the property shall be the existing land use regulations" together with amendments adopted pursuant to the reservations of authority discussed below. The agreement further provides that "[i]n developing the property, [the owner] is provided and assured the vested right to require that the land use regulations of [the county] applicable to and governing the development of the property during ee term hereof shall be as provided [in the aboveprovisionj."2 These provisions are intended -to freeze the applicable zoning as well as the level and type of devel- opment exactions. (Related vested rights are enumerated and relevant terms de- fined in Appendix C.) The provision limiting damages states that Orange County would not have enterlalnto the_ development agreements if it had_ been subject to any_additional lability for damages_as a result. No damages are permitted on any__theory,. whether constitutional or contractual, for injuries arising out of or connected in any way with rights conferred by the development agreement. The landowners do not waive their right to seek damages for violation of a preexisting statutory or constitutional right to develop, however. If, for example, the county refuses to is- 51 sue building permits under a "vesting tentative map" for the property, the land- owner would be entitled to seek any remedy available under state law. The only remedy for breach of the development agreement, however, is termination or specific performance. (The provision for highly negotiated damages from the stan- dard form is shown in Appendix C [Section 11.1]). Both provisions reflect the basic philosophy of the FCPP that landowners must be allowed to reduce the risk of unknown costs and development restric- tions in return for shouldering additional financial burdens. In Orange County's hot housing market, the total cost of the program was considered less important to the development community than assurances about continued development and maximum costs. The standard development agreement therefore contains strong prohibitions against moratoriums or other future limitations on develop- ment. The standard form also contains parallel provisions against increases in ex- actions for traffic -related development and limits on the cost of fire, sheriff, li- brary, and child-care facilities. While making development more predictable, the agreements also recog- nize the need forflexibility by both the private and the public sectors. Under state law, the development agreements would require formal amendment, includ- ing public hearings, to change any provisions of existing land use regulations applicable to the development under the agreement. Therefore, the FCPP devel- opment agreements expressly exclude from protection those development regu- lations most likely to change in a long-term development, including site plans and subdivisions. In return for the ability to change site -specific development ap- provals without time-consuming hearings, developers agree to risk the county's changing these approvals within the context of the existing zoning. The public's need for flexibility over the term of the agreements is recog- nized in a series of increasingly broad reservations of authority. First, landowners are required to participate on a prorated basis in all future fee programs adopted pursuant to the county's existing Growth Management Program, except for those relating to additional traffic, fire, sheriff, or library facilities (see Section 3.8 in Ap- pendix C). Second, with certain financial restraints, landowners agree to partici- pate in future transportation system management programs, traffic signal pro- grams, public transit programs, and facility maintenance programs (see Section 3.8 in Appendix C). In a special, hotly debated provision, the county also reserves the right to adopt and apply future land use regulations that are "reasonably necessary ... to protect the public health and safety," even if they conflict with a developer's rea- sonable expectations of development under the agreement. Similarly, the agree- ment contains an exception for existing or future state and federal regulations that could affect landowners' development rights. The county can invoke these reservations in responding to foreseeable federal environmental sanctions, includ- ing air and water quality regulations, without endangering the development agreements (see Section 4.3b in Appendix C). Last, the agreements permit the county to apply any regulations "not in conflict" with existing land use regula- 52 d- id 's se ,p- to a- d- tions and the policies governing the development as well as to conduct annual monitoring reviews of each development agreement. Corrective action is permit- ted in the event that a landowner fails to achieve mandated levels of service or to meet construction deadlines. The public/private nature of the FCPP development agreements is espe- cially clear in the standard form's treatment of the judicial review expected in reservation -of -authority cases (see Sections 4.3 and 4.4 in Appendix C). The agreements suggest the county bears the burden of proof in showing that future land use regulations that substantially burden the owner's rights were equitably applied to all similarly situated property and not unreasonable in light of available alternatives. To the extent that the future regulations are adopted under the ex- ception for health and safety, the development agreements require the county to show an increasingly higher level of public need for the regulation as the adverse impact increases on the landowner's "reasonable economic expectations." This provision is an unusually frank acknowledgment that the major purpose of the de- velopment agreement is to permit completion of the proposed development in ac- cordance with the landowner's economic plans. In approving the use of development agreements, Orange County expanded on the state enabling legislation by requiring additional public benefits as consid- eration. The state statute provides that increased predictability and comprehen- sive planning aresufficient consideration for the public sector to enter into a de- velopment agreement. To consider a development agreement, however, Orange County requires the provision of public improvements costing several thousand dollars per dwelling unit in addition to those required through the subdivision process. The FCPP standard development agreement therefore contains extensive recitations concerning the nature of and need for these public benefits similar to recitals of consideration found in private agreements (see Section 3.8b in Appen- dix C). The natural corollary of the emphasis on consideration is a requirement for additional public benefits upon amendment of an existing development agree- ment. One of the FCPP development agreements was amended within weeks of its original adoption to permit a politically popular change in the governing zon- ing ordinance. Despite the desirability of the change, the landowner was required to provide extensive additional public benefits, including funding of a countywide wildlife conservation plan. Other landowners have resisted amendment of their agreements, partly because of unwillingness to provide substantial additional ben- efits so soon after the original commitment. Some question remains as to whether county staff will attempt to standardize the public benefits to be required for an amendment, as they did with the original agreements. Finally, considerable attention was paid to the terms for terminating the agreement. As noted earlier, the FCPP requires participating landowners to pro- vide 5235 million up front to finance roads through the sale of bonds secured by their land. None of the landowners were willing to commit to a cash payment in the event that the necessary special districts were not formed or the bonds could 53 not be sold. Therefore, the FCPP agreements all provide for termination in the event that the bonds are not sold and the landowners do not provide the required cash. The agreements also provide for termination if the county determines that the available funding is inadequate or the FCPP cannot be implemented. Creation of the special districts and sale of the bonds exterminate both of these termina- tion rights. The only other ground for termination without default is the adoption of regulations that substantially and adversely affect a landowner's reasonable eco- nomic expectation as a result of litigation or state and federal regulation. In the event of termination without default, the landowner is entitled to retain any de- velopment rights issued for completed performance. These rights, as well as all other rights under the agreement, may be assigned to purchasers of land subject to a development agreement. IMPLEMENTATION OF THE FCPP DEVELOPMENT AGREEMENTS Circumstances changed dramatically after adoption of the FCPP and approval of the development agreements. The countywide growth management initiative failed to win voters' approval, despite widespread support in unincorporated areas of south Orange County. The specter of unchangeable development controls was therefore removed. In response to voters' concerns, however, the Board of Supervisors adopted a growth management policy modeled after key provisions of the initiative linking development to the completion of adequate public facilities. At the same time, provisions in the FCPP requiring up -front financing from developers were incor- porated into the growth management policy. While the FCPP development agree- ments are not subject to the new growth management policy, they are not neces- sarily incompatible with it. Meanwhile, a clear consensus has evolved that future development__cannot of occur without some improvement in exstm services., Opposition to the development agreements from growth management activ- ists was intense, even from those who supported the FCPP. Virtually all of the FCPP development agreements were challenged in a series of lawsuits attacking their constitutionality and the adequacy of their environmental documentation. Support for the FCPP remains strong among members of the Board of Super- visors, most of whom see little alternative to the public/private approach repre- sented by the FCPP development agreements. Most observers see little likelihood, however, that individual development agreements will be approved for additional development in the near future. The issue may be moot, though, because little undeveloped property remains without development agreements in the hot areas of south Orange County. A tremendous amount of work is required to implement and monitor the development agreements. Unlike those development agreements that require only the payment of increased fees at the time of execution or upon issuance of build- 54 red It ion ,f :eas ras Led ing 'ee- :es- [re d, nal as Id- Tif ing permits, the FCPP agreements require the construction of numerous public fa- cilities before issuance of buildings permits. The county is therefore required to 7 monitor the sale of bonds, completion of construction, and issuance of building I permits to ensure compliance with the complex requirements of the public bene- fits package attached to each development agreement. It is too early to determine whether the development agreements will have a positive impact on development in the south county. A number of the develop- ment agreements cover property at a very early stage in the development process, as much as 10 to 15 years from subdivision and construction. Under normal cir- cumstances, the property would be rezoned or replanned several times before de- velopment to accommodate changing market conditions and successive owners. The FCPP development agreements do not automatically apply to changed devel- opment plans, even if the county would prefer an alternative development. A landowner must therefore choose between losing the protection oft_he existing development agreement and the ability to respond to market changes. De-sPite the changed circumstances and uncertainty about implementation, all of the participating landowners have chosen to remain in the FCPP and to pro- ceed with their financial commitments. Property covered by a development agreement was selling at a premium as early as January 1988, and lenders ex- pressed a strong prefrence for covered property throughout 1988. Orange County continues to look to the FCPP as a model for providing assurances to both the private and public sectors as to the shape of future development. NOTES 1Southern California Association of Governments, "Draft Regional Mobility Plan," October 1988. 2Sections 4.2a and 4.2b, respectively, of the FCPP model development agreement, found in Appendix C. 55 I, n nn b CI al 10. LEGAL ISSUES AND ON SIDERATIONS DANIEL J. CURTIN, JR., AND SANFORD M. SKAGGS number of egal issues are raised by the use of development agreements, including the question of whether they freeze or vest rights, their enforce- ' ability, the standing of various parties to challenge agreements, the trans- _ ferability of agreements, whether they constitute legislative or judicial acts, and their use to exact contributions to public facilities. Although legal standards apply- _ ing to these issues vary somewhat from state to state, some major aspects are common to all. FROZEN OR VESTED RIGHTS Developers have been rudely surprised to find that they can be prevented from proceeding with a project that had received what they believed to be "final" ap- proval. In many instances, approvals have been rescinded or overridden by subse- quent legislative action (e.g., a rezoning or moratorium), because the right to pro ceed with the project was not vested. The right to develop vests at different stages of the process, depending upon the law of the state where development is proposed. Strict rules providing for late vesting exist in some states; in California, for example, the developer's rights do not vest until a building permit has been issued and the developer has performed substantial work and incurred substantial liability in good faith reliance on the permit. Several states that have authorized development agreements were to some degree reacting to harsh applications of the latevesting doctrine, which governs the point in the development process at which a developer obtains a vested right to proceed with development of its property. 121 At a minimum, statutes governing development agreements permit agree- ments that "freeze" land use rules, regulations, and policies at a particular time and state that subsequent amendments or enactments do not apply to the subject project. Freezing the rules, however, does not protect the project from application of those rules in a manner preventing the construction of the project. Most deveI- opment agreement statutes therefore also authorize agreements that confer vested rights to proceed with an approved development. The scope of the agreement depends upon the terms negotiated by the par- ties. For example, agreements have been executed that merely freeze general des- ignations and zoning for the plan as they exist on the effective date of the agree- ment. Thereafter, for the term of the agreement, the subject property may not be rezoned or replanned, and the requirements of the zoning and plan may not be changed insofar as they apply to the subject property (e.g., density, setbacks, lot coverage, permitted uses). In such circumstances, the particular development may be subject to further discretionary review (e.g., site plan or architectural re- view), even though the agreement freezes the policies and standards establishing the framework within which the city's discretion must be exercised.' Generally, a more project -specific agreement is desirable and should be ne- gotiated if the city is willing or compelled to do so. This factor is particularly im- portant in states with a strict late -vesting rule and in areas of political instability and unrest. With a late -vesting rule, developers are at risk, as they incur substan- tial liabilities for acquisition, planning, design, engineering, grading, installation of infrastructure, and carrying costs before obtaining a vested right to build the proj- ect. If the community's attitude toward the project changes during this time, new legislation may substantially reduce the size of the project or even prevent its construction. Such a turn of events may harm a city as well as the developer, for the benefits of jobs and improvements to be created or fees to be paid would be lost. Development agreements can reduce this risk, especially when both the de- veloper and the city agree that a project would benefit the community. Thus, a protectedLLyested right to,rdevelop is far more important than a mere freeze of the regulations. To fully understand this aspect of development agree- ments, it is therefore important to understand the concept of vested rights. Vested rights are based upon the theory of equitable estoppel; at some point in the development process, a developer's expenditures and dedications in good faith reliance on a city's land use and project approvals should estop that city from changing those rules that would prevent the completion of the project or substantially reduce the return upon the developer's investment. States are split, however, as to the question of when the estoppel arises and the vested right attaches, and two different rules are applied. In most states, a developer does not obtain a vested right to proceed with the project until the local government has issued a building permit and the devel- oper has performed substantial work and incurred substantial liability in good faith reliance on the permit.'- In California, which is among the states that apply this rule most strictly, courts have held that no basis exists for an estoppel or for a 122 ct on :l- ed es- )e g of w e ht a vested right absent a building permit, regardless of the developer's substantial rea- sonable and detrimental reliance on the local government's actions, regardless o the issuance of a precise conditional use permit, and regardless of how many other land use and other preliminary approvals have been granted.3 The severity of the "building permit" rule is best illustrated by Avco, where the developer had obtained planned development zoning for a portion of his prop- erty, a Final subdivision map, and a grading permit, had subdivided and graded the property, and had constructed storm drains, street improvements, culverts, utilities, and similar infrastructure. The developer spent over S2 million and in- curred liabilities over $700,000, but under the county's building code, it could not obtain a building permit until grading had been completed. Despite the devel- oper's obvious and substantial reliance on the issued permits and zoning, the California Supreme Court held that the developer did not have a vested right to build the project, and the developer was subjected to new requirements for a coastal zone permit. A number of other states have refused to rigidly apply the building permit rule, at least to planned unit developments (PUDs), and have instead adopted the "last discretionary approval" rule.4 This theory holds that a developer should ob- tain a vested right to complete a project when it has obtained the last discretion- ary approval necessary to carry out the development. The rule of last discretion- ary approval is lenient in some states and harsh in others, so it may be only minimally more favorable to developers than the building permit rule. Oregon, for example, has a lenient version of the rule. In Oregon, the last discretionary approval may occur before the Final approval, even one involving discretion, if the entire project has been precisely defined and has received suffi- cient discretionary approval based on that definition. For example, an Oregon de- veloper can obtain a vested right to complete a PUD based upon the approval of the first stages of that development, even if the development proposal later changes to some extent.5 In Milcrest, a developer obtained a vested right to de- velop a 440-acre PUD, even though a revised PUD plan was later approved. If strictly applied, the rule of last discretionary approval can be just as harsh and rigid as the building permit rule, however. In County of Kauai, the Hawaii Supreme Court held that the last discretionary permit applicable to a proposed hotel and condominium project was a referendum election on the applicable zon- ing. The court noted that the petition to place the measure on the ballot was cer- tified as sufficient before the shoreland management permits, normally the last discretionary permits in the county's development process at that time, were granted. Thus, either vesting rule can result in a very uncertain development cli- mate. A late -vesting rule can permit a city or its voters to legislate a restrictive change that devastates the economics of a project —changing an approved town- house project to a single-family residential development or an approved business park to agricultural uses, for example. In a multiphase project, the city may be able to affect any phase that lacks a building permit or the last discretionary ap- 2 proval, under the strict application of those rules, even if the first phases have been completed, and it may apply even when those first phases include the hard costs of infrastructure and other improvements for the remaining phases.° The California legislature adopted its property development agreement stat- ute in direct response to the California Supreme Court's decision in Avco. In fact, in its opinion the California Supreme Court suggested that it was up to the legis- lature to provide for earlier statutory vested rights.' And in Raley, the court, while following Avco's rule, severely criticized the common law rule of vested rights, as applied under current conditions.8 Rights granted under a California de- velopment agreement are vested rights, not just a "freeze," with the legislature assuring the applicant for a development project that "upon approval of [al proj- ect, the applicant may proceed with the project in accordance with existing poli- cies, rules, and regulations, and, subject to conditions of approval, [that it] will strengthen the public planning process, encourage private participation in com- prehensive planning, and reduce the economic costs of development."9 Furthermore, the development agreement is to specify "the duration of the agreement, the permitted uses of the property, the density or intensity of use, the maximum height and size of proposed buildings, and provisions for reservation or dedication of land for public purposes. The development agreement may include conditions, terms, restrictions, and requirements for subsequent discretionary ac- tions, provided that such conditions, terms, restrictions, and requirements for subsequent discretionary actions shall not prevent development of the land for the uses and to the density or intensity of development set forth in [the] agreement." ° In particular, "unless otherwise provided by the development agreement, rules, regulations, and official policies governing permitted uses of the land, gov- erning density, and governing design, improvement and construction standards and specifications, applicable to the development of the property subject to the development agreement, shall be those rules, regulations, [and] official policies en- forced at the time of the execution of the agreement."" In light of California's judicial history, it is quite clear that the development agreement statute was intended to give the -developer a vested right to proceed with development pursuant to the terms of the agreement. The development agreement can protect the developer against subsequent changes in the general plan, specific plan, zoning or subdivision regulations, and possibly building regula- tions and other construction standards. The development agreement may_also_ prescribe_ standards_ for future_discretionary approvals,' 2 Thus, the development agreement may do more than "freeze" the applicable regulations; it may give the developer a vested right, protected by the constitution and the statutes, to pro- ceed with a particular development. Although the Florida, Hawaii, and Nevada statutes vary in some respects, each contains a provision for a freeze that the rules and regulations applicable to the development project are those in effect when the agreement is adopted. » 3 Florida limits development agreements to a term of five years (plus unlimited ex- 124 e 1- tensions in increments not to exceed five yearsj,'4 while other states do not the duration of the agreements. Generally, the local government cannot apply new rules to the project unless a strict test is met. In Hawaii, for example, such a rule change would be allowed only if the new enactment is generally applicable and is necessary to prevent a condition that is "perilous to the residents' health or' safety." 15 This strict test should protect approved projects against any changes re- lating to growth, traffic, or other arguably nonperilous concerns. The Florida stat- ute, however, allows the locality to apply new rules based on "substantial changes" in "pertinent conditions."16 It remains to be seen whether this loophole will be broadly or narrowly construed. Generally speaking, however, development agree- ments may be said -to -grant vested rights, not merely freeze existing laws. 1'1 r E" S ENFORCEABILITY AND RESERVED POWERS Another principal legal issue raised by legislation allowing development agree- ments is whether such agreements constitute "bargaining away" or "contracting away" the police power of the agreeing public agency and thus are invalid'7 o whether they are valid contracts subject to the protection of the contracts clause of the U.S. Constitution, which prohibits the impairment of obligation.18 Despite the fact that four states have enacted such legislation and hundreds of development agreements have been adopted, neither the validity of the agree- ments nor any other issue relating to the enabling statutes has been discussed in a published appellate decision. While it is clear that for the development agreement to survive it must not be held to constitute an invalid restriction on the local po- lice power, no applicable decisions have been handed down on the issue. Although a city generally cannot "contract away" its police power, courts have allowed restrictions on the exercise of the police power when those restric- tions were contained in a contract entered into pursuant to statutory authoriza tion.19 Furthermore, most judicial warnings against "contracting away" the police power either are not essential to the case being decided20 or are contained in de- cisions governing ad hoc agreements entered into by a city without the benefit o an enabling statute authorizing such agreements. Thus, no case is directly on point, and existing case law does not seem implicitly to prohibit development agreements. In fact, the Morrison decision suggests a logic that could be used to uphold development agreements and related enabling statutes. In that case, the court re- jected the argument that an annexation agreement constituted an unlawful dele- gation of legislative and governmental functions because the city had not "sur- rendered" all "control" over these functions by entering into the annexation agreement.21 Similarly, it can be argued that development agreements do not constitute a total surrender of police power, because the agreements generally are subject to at least some later local enactments, whether for "health or safety"22 or to reflect 125 "substantial changes.�23 Further, all of the development agreement statutes allow the city to enact regulations that do not conflict with the terms of the agree- ment.24 These statutory provisions, allowing enactment of "nonconflicting" reg- ulations, reserve to a city a potentially extensive area of legislative discretion, de- pendent only on the courts' interpretation of the term. In addition, development agreements are required to conform to local gen- eral or comprehensive plans in all four states.25 This requirement for conformity can be a demanding one, restricting the extent to which a development agree- ment can limit the police power. Finally, the passage of enabling statutes by the states and the adoption of development agreements by cities are themselves exer- cises of the police power. Thus, development agreements should not be charac- terized as a "total surrender" of local police powers. Another argument that supports the validity of development agreements is that they are contracts protected by the "contracts clause" of the U.S. Constitu- tione26 In United States Trust Company v. New Jersey, 431 U.S. 1 (1977), the Supreme Court considered a statute repealing a contract covenant between the state of New Jersey and Port Authority bondholders governing the purposes for which the bonds could be used. The Court found that the repealing statute im- paired the state's contract with the bondholders and that because the state failed to show that the impairment was both "reasonable and necessary" to the exercise of the police power, the statute violated the contracts clause. Although the Court reasoned that the statute at issue was outside the reserved powers doctrine be- cause a spending power was involved, the Court did identify a preference for pro- tecting contracts unless the subsequent exercise of a power is both reasonable and necessary. Thus, U.S. Trust Co. seems to support protection of public con- tracts against impairment by a subsequent exercise of the police power. Further- more, other courts have upheld contractual agreements by local governments on a showing of sufficient public need or benefit, as California courts did in Mor- rison Homes and Housing Authority v. City of Los Angeles. Attorneys can attempt to avoid potential problems of validity by ensuring that the development agreement is drafted with several goals in mind: 1. To adhere to the city's general plan and to the principle that the development agreement and the project must be consistent with the general plan. 2. To adhere to the goals, purposes, and procedures set forth in the development agreement statute. 3. To demonstrate that the agreement constitutes a present exercise of govern- mental authority rather than a deferral or an abdication of that authority. STANDING The ability of the parties and others to enforce the development agreement is a further legal issue. Under California's statute, a development agreement is en- forceable by any party to the agreement, "notwithstanding any change in any ap- plicable general or specific plan, zoning, subdivision, or building regulation 126 s d [se rt °o- n it nt adopted by the city or county entering the agreement, which alters or amends the rules, regulations, or policies specified" in the statute.27 Further, after its recorda tion, the agreement imparts notice to all persons, as afforded by the recording laws of the state, and the statute provides that the burden of the agreement shall be binding upon, and the benefits of the agreement shall inure to, all successors in interest to the parties to the agreement. It is therefore quite clear that the de veloper, the city, and their successors in interest have standing to enforce the agreement. Similarly, Hawaii's statute provides that the agreement is enforceable by any party or by successors in interest.28 Florida's law seems to go even farther, granting "any party, any aggrieved or adversely affected person, ... or the state land planning agency" the right to file for injunctive relief to enforce the terms 'o the agreement or to challenge compliance of the agreement with the develop- ment agreement statute.29 Only Nevada's statute is silent on the question of the parties' standing for enforceability of agreements. TRANSFERABILITY An additional question is whether a development agreement may include terms prohibiting the,developer from transferring its rights in the agreement to someone else. Some official wish to provide that assignment cannot take place without the city's consent. The statutes are silent on whether a city can impose such a condi- tion. Hawaii's law specifically considers a successor in interest to be a party and allows a successor to enforce the agreement.30 California's law likewise states that the benefits and burdens of the agreement shall inure to successors in interest.31 While it is unclear whether the statutes limit the ability to prohibit assign- ment, a general legal doctrine can invalidate an attempt by contracting parties to restrict the right to transfer or sell real property: the familiar "restraints against r' alienation" doctrine that grew out of the concern in English common law with protecting the unfettered transferability of land. In California, for example, the rule against restraints on alienation states, "Conditions restraining alienation, when repugnant to the interest created, are void."32 Only unreasonable restraints are prohibited, however.33 % - Some cities include provisions prohibiting transfer of the developer's rights J under the agreement without the consent of the city. The intent is to give the 1 city the power to prevent transfer of the rights and obligations to an unreliable developer. Because approval of a development agreement is a land use action vesting various land use approvals and regulations, it can be compared to a land use permit that clearly runs with the land and thus falls within the rule against re- straints on alienation. In one case, an appellate court held that a city could not Ho\) condition a use permit so as to prohibit transfer without consent.34 By the terms of the California statute, the restraint to be invalid must be "repugnant to the interest created."35 The most common application is against a 127 restraint in a grant of a fee simple absolute estate in real property. Such restraints are usually void because they are repugnant to the unfettered alienability that is a characteristic of fee estates. To the extent the interest created is not a fee estate, the rule might not be applicable.36 It can be argued that the "interest created" by a development agreement is only the vesting of certain rights in the land (e.g., the right to a specified zoning classification). Only the transfer of such vested rights is restrained and the prohi- bition on assignment without consent does not affect conveyance of the land it- self. It cn therefore be argued that the rule should not apply. If facts could be ad- duced to show that the practical effect of the prohibition of assignment is to restrain transfer of the fee estate, however, a strong argument could be made for application of the rule. The section requiring recordation of the development agreement and providing that its benefits and burdens are binding upon the par- ties' successors does seem to tie the agreement to the land and arguably evi- dences an intent of the legislature that the rights vested thereby should be freely transferable.37 It appears the rule could be applied even though the alleged re- straint was contained in a separate agreement that did not itself create the fee estate.38 It might also be argued that a prohibition against assignment is enforceable because the rights in real property created by the development agreement do not include unfettered alienability. Rather, such rights were intended to be limited by the terms of the agreement itself, and any restraint contained in the agreement should be enforced.39 Finally, the prohibition against assignment could be upheld as a reasonable restraint. Under the balancing test developed by the California Supreme Court,4° the justification for enforcing the restraint must exceed the quantum of the actual restraint on alienation. The public policy underlying the use of development agreements (generally enunciated in the enabling statutes themselves) and the need of cities to control the reliability of the developer exercising the rights can be argued to outweigh any actual restraint on alienability caused by the prohibi- tion against assignment. If a court analyzes the rights in a development agreement as contractual rather than property rights, the provision for nonassignment is more likely to be enforced. In one case, a lessee was denied his claim for damages when the lessor refused to consent to assignment of the leasehold because the lessee failed to prove, as required by the lease, that the proposed assignee was "equally as finan- cially and morally responsible as the lessee."' The court ruled that this provision in the lease did not violate the provisions of Civil Code section 711. It should also be noted that development agreements generally are not binding upon third -party governmental entities that may have discretionary au- thority over the development project. They may include local service districts, such as sanitary or water districts, regional governmental entities, and subdivi- sions of state and federal government. Developers should determine which en- tities, in addition to the city that will be a party to the development agreement, 12 8 s d- will have jurisdiction over the contemplated development and, where possible, consider a development agreement or similar agreement with those other entities. If an agency has jurisdiction over the development and is unable or unwilling to enter into such an agreement, the developer should obtain from that agency any required approvals before executing the development agreement with the city or make its obligations under the development agreement contingent upon receipt of the approvals. In this regard, the Hawaii law takes an interesting approach: it specifically contemplates and encourages other governmental agencies to be par- ties to the agreement, with one agency being responsible for overall administra- tion of the agreement.42 LEGISLATIVE OR QUASI-JUDICIAL ACT? The status of a development agreement as a legislative or quasi-judicial (adminis- trative) act of the city council can have a dramatic effect, particularly if disputes arise. If the development agreement is a legislative act and the state provides for initiative and referendum, the development agreement may be subjected to those powers. Further, if the agreement becomes the topic of litigation, as a legislative act it will be subjected to a lesser standard of judicial scrutiny and no investiga- tion into the intent of the drafters will be required. On the other hand, if the de Y velopment agreement is quasi-judicial, it will be subject to a higher degree of jud cial scrutiny, including an examination of the drafters' intent. Whether or not a property development agreement is legislative or quasi- e judicial is determined by statute and decisional law. In California, a development agreement is classified as a legislative act, adopted by ordinance and subject to referendum.43 This provision was prompted by the desire of the legislature to al- low the people the opportunity to vote on the agreement under their reserved power of referendum of legislative acts. On the other hand, Hawaii's statute ex- plicitly classifies a development agreement as an administrative (quasi-judicial) act.44 Thus, development agreements in Hawaii are essentially "referendum - proof." The Florida and Nevada statutes do not speak directly to the question. Whether adoption of the development agreement is viewed as a legislative or quasi-judicial act has important ramifications on matters such as due process, requirements of notice, hearings and findings required for quasi-judicial action,45 and ultimately the scope of judicial review. A city may terminate or modify the agreement if it finds or determines on the basis of substantial evidence that the developer has not complied in good faith with its terms and conditions,46 suggest ing, procedurally at least, that such a determination would be quasi-judicial in nature and thus subject to review by administrative mandamus. In California, because approval of a development agreement is a legislative act and therefore subject to referendum, it is reviewable by ordinary mandamus under Code of Civil Procedure section 1085. The basic standard of review is to determine whether its adoption was arbitrary, capricious, or entirely lacking in evidentiary support or whether the city failed to follow the procedures prescribed 129 by statute. Most development agreements have characteristics of both legislative and quasi-judicial actions and grant vested rights that are derived from constitu- tional guarantees that property may not be taken without due process of law. The court must make its own independent judgment on the evidence.47 A court's determining a decision approving a development agreement to be "quasi-judicial" instead of "legislative" would have important ramifications. The hearing on the agreement would be quasi-judicial (i.e., administrative), requiring taking of evidence and preparation of findings (in addition to the finding of consis- tency with applicable general and specific plans).48 An independent, constitu- tional requirement would also apply that notice and hearing be given to affected property owners. Finally, as a quasi-judicial act, the decision could not be the sub- ject of a referendum. It is important to remember that the courts will decide whether approval of a development agreement is a legislative or quasi-judicial act, notwithstanding the legislature's purported determination in section 65867.5. The issue involves judi- cial doctrines and constitutional law that only the courts can decide.49 Under current statutory law, the decision to enter into the development agreement is one over which the city has complete discretion, and there are no standards or criteria to which a city must adhere when making this decision. The decision to approve the development agreement may become linked with the de- velopment itself, however. A court might then determine that approval of the agreement is subject to the same scope of review as is the decision to approve the related development project. It is no longer a simple process to classify decisions on development projects as legislative or quasi-judicial. To the extent the development agreement addresses zoning matters, it can be argued to be legislative.50 On the other hand, to the extent the agreement ap- proaches in substance a planned development, then it could be treated as ad- judicatory.51 Because no appellate cases have yet interpreted the statute in this regard, no certainty can be forecast. Whether or not approval of a development agreement is found to be legislative or quasi-judicial in nature, however, will de- pend largely upon application of the facts and rules to the rights of the parties to the agreement and other affected individuals. EXACTIONS IN DEVELOPMENT AGREEMENTS The power of a city to impose exactions, whether they be the dedication of land or payment of development fees, is quite broad and is based on the exercise of its police power.52 The California Constitution provides for police power,53 but the exercise of this power cannot cause a taking and a proper nexus or connection must exist between the burden created by the project and the exaction im- posed.54 As a general rule, the court will uphold an exaction if the city is acting within its police power, if the condition substantially furthers a legitimate govern- mental interest, if the condition furthers the same governmental purpose ad- 13 0 be tg sis- d ub- of the di- he le the is an ap- e- to d its ie g rn- vanced for regulating it, and if the owner is not denied economically viable use o its land. Many cities in California have been using development agreements to i pose exactions not set forth in the city's general plan, enabling ordinances, or reg- ulations. Some cities rely upon the development agreement as a quid pro quo for imposing exactions that are not yet contemplated in officially adopted local plan regulations. On occasion, city officials will attempt to obtain greater exactions by suggesting or declaring that they will refuse to negotiate'an agreement if the de- veloper does not comply, on the basis that a city need not enter into one in the first place. For example,. Riverside Countyrequired an additional fee of approxi- mately S5,000 per dwelling unit for the "privilege" of entering into a develop- ment agreement. Most developers agreed, however, that because a major growth control initiative was to appear on the ballot, assurance of a development agree- ment and vested rights far outweighed objections to the fee. Thus, on one hand there rests the issue of the nexus requirements of Nollan and on the other the fact that the development agreement process is in- tentionally both a discretionary and a negotiation process. Whenever parties nego tiate, each party generally tries to use its full bargaining strength to strike the most favorable deal possible, naturally leading to a situation in which a city uses its powers of exaction to the fullest extent and its discretion not to enter into a development agreement to obtain things from developers that might not other- wise be obtainable. The questions of whether a taking has occurred and whether the nexus test has been satisfied are thus much more difficult to analyze in a de- velopment agreement. The difficulty of analyzing these questions will be solved only after judicial or legislative guidance is available as to whether a city may ar- bitrarily refuse to enter into a development agreement when requested to and as to whether the legal restraints that apply when the city imposes conditions in a standard approval process also apply when the city goes to the bargaining table. NOTES 1"City" means the municipal government of a city or county. "City council" also means board of supervisors. 2See, e.g., Avco Community Developers, Inc. v. South Coast Regional Commission, 17 Cal.3d 785 (1976), cert. denied, 429 U.S. 1083 (1977). 3Oceanic California, Inc. v. North Central Coast Regional Commission, 63 Cal.App.3d 57 (1976); Raley v. California Tahoe Regional Planning Agency, 68 Cal.App.3d 965 (1977). 4See, e.g., County of Kauai v. Pacific Standard Life Ins. Co., 653 P.2d 766 (Haw. 1982); and Milcrest Corp. v. Clackamas County, 59 Or.App. 177, 650 P.2d 963 (1982). 5Milcrest, supra. 6See Courthouse Plaza Company v. City of Palo Alto, 117 Cal.App.3d 871, 884-87 (1981). 7Avco, supra, at p. 796. BRaley, supra, at p. 986. °Cal. Gov't Code § 65864. 10Ca1. Gov't Code § 65865.2. ''Cal. Gov't Code § 65866. 131 12Ca1. Gov't Code § 65865.2. 13F1a. Stat. § 163.3233; Haw. Rev. Stat. § 46-127, Nev. Rev. Stat. § 278.0201. 14Fla. Stat. § 163.3229. 15Haw. Rev. Stat. § 46-127. 16Fla. Stat. § 163.3233. 17Stonev. Mississippi, 101 U.S. 814 (1879). 18U.S. Constitution, Art. I, § 10, cl. 1. 19Housing Authority of the City of Los Angeles v. City of Los Angeles, 38 Ca1.2d 853 (1952) (intergovernmental agreement upheld); Morrison Homes Corp. v. City of Pleasanton, 58 Cal.App.3d 724 (1976) (annexation agreement upheld). 20See, e.g., Avco, supra, at p. 800. 21Morrison, supra, at p. 734. 22Haw. Rev. Stat. § 46-127. 23F1a. Stat. § 163.3233. 24Ca1. Gov't Code § 65866; Fla. Stat. § 163.3233(2); Haw. Rev. Stat. § 46-127(b); Nev. Rev. Stat. Ann. 278.0201(3). 25Ca1. Gov't Code § 65867.5; Fla, Stat. § 163.3231; Haw. Rev. Stat. § 46-129; Nev. Rev. Stat. § 278.0203(1). 26U.S. Constitution, Art. I, § 10, cl. 1. 27Ca1. Gov't Code § 65865.4. 28Haw. Rev. Stat. § 46-127(a). 29F1a. Stat. § 163.3243. 30Haw. Rev. Stat. § 46-130. 31 Ca1. Gov't Code § 65868.5. d 32Ca1. Civ. Code § 711. 33 Wellenkampv. Bank of America, 21 Ca1.3d 943, 948 (1978). „. 34Anza Parking Corp. v. City of Burlingame, 195 Cal.App.3d 855 (1987). 35Cal. Civ. Code § 711. 36See, e.g., Coast Bank v. W.J. Minderhout 61 Cal.2d 311, 316 (1964); 49 Cal.Jur.3d, Perpetuities and Restraints on Alienation, § 30. 37Ca1. Gov't Code § 65868.5. 38Preyv. Stanley, 110 Cal. 423, 427 (1895). 39Burnetty. Piercy, 149 Cal. 178, 191 (1906). 405ee Wellenkamp, supra. 41Reulingv. Sergeant, 93 Cal.App.2d 241 (1949). 42Haw. Rev. Stat. § 46-126(d). 43Ca1. Gov't Code § 65867.5. "Haw. Rev. Stat. § 46-131. 45See, e.g., Topanga Association for a Scenic Community v. County of Los Angeles, 1 1 Ca1.3d 506 (1974). 46Ca1. Gov't Code § 65865.1. 47See, e.g., Stanson v. San Diego Coast Regional Commission, 101 Cal.App.3d 38, 50 (1980). 48Ca1. Gov't Code § 65867.5. 49See, e.g., Sonoma County Organization of Public Employees v. County of Sonoma, 23 Ca1.3d 296, 316 (1979). 50See, e.g., Arnel Development Co. v. City of Costa Mesa, 28 Ca1.3d 511 (1980). 51See, e.g., Mountain Defense Leaguev. Board of Supervisors, 65 Ca1.App.3d 723 (1977). 52Associated Homebuildersv. City of Walnut Creek, 4 Ca1.3d 633 (1971). 53Art. XI, § 7. 54Nollan v. California Coastal Commission, 483 U.S. 825 (1987). 132 P CTICAL CONCERNS IN DRAFI'ING AND NEGO'I'IA'I'ING EVELOPMENT AGRPIEMEN'I'S JOSEPH E. COOMES, JR. n California, the objective of the development agreement law was to create a degree of certainty and predictability in the development process sufficient to induce developers to undertake large-scale, master -planned projects involving substantial financial commitments to public infrastructure and project amenities. In practice, however, most development agreements are extensively conditioned with respect to project approvals; the agreements serve more as "planning con- stitutions" to limit future local discretion to certain defined parameters than to freeze regulations and deny that discretion altogether. Early precedents exist for negotiated planning agreements and commit- ments between local governments and developers and property owners: planned unit developments (PUDs) embodying detailed conditions of approval; preannexa- tion agreements preapproving applicable land use designations and planning crite- ria for unincorporated areas for properties to be annexed to cities; service agree- ments between local agencies and developers providing the terms and conditions under which municipal and urban services and public facilities would be provided to serve developing properties; and conditional use and special permits governing particular land uses and development subject to detailed conditions of approval. The most extensive experience in public/private negotiations for development has been with redevelopment agreements, and the concept of development agree- ments in California had its origin in the vast experience with redevelopment in that state. The development agreement statute permits, but does not require, cities and counties to adopt local enabling legislation to enter into development agree- ments. Thus, development agreements are both a delegated exercise of the state's planning police power and a contract. Development agreements do not substitute 133 for the planning process, create "vested rights" in a legal sense, solve all problems of uncertainty in the planning process, or prevent the subsequent creation of po- litical or community elements hostile to the development. They can, however: • Implement sound planning; • Create a measure of predictability in the development process for a developer; • Establish a road map for future public approvals and changes in the project, thereby constraining future action by the public agency; • Insulate the project from future initiatives regarding zoning and growth control that might conflict with the right of the developer to proceed with the project under the development agreement; • Achieve public benefits in the form of the developer's contributions to infra- structure, housing, open space, and other programs beyond those attainable as part of the traditional planning process; and • Memorialize the public sector's and the developer's commitments to the project at the time the agreement is entered into. It is important that both the public and the private sectors understand the bargaining process and the motivations that compel each to try to achieve the benefits of a development agreement. The passage of Proposition 13 in California limited property taxes to 1 percent of assessed value and restricted reassessment of properties except for changes in ownership and new construction. Together with reduced federal and state funding for highways and infrastructure, this ac- tion dramatically affected local governments' ability to deal with growth and placed a new emphasis on creating partnerships with developers to shift the re- sponsibility to them for much of the financing for new infrastructure. Cities and counties came to regard development agreements favorably as a way to achieve this public objective, while protecting the interests of the developers willing to as- sume these burdens as conditions to approving development. Development agreements thus balance competing public and private inter- ests: a developer's need for certainty and predictability against local government's need to plan and regulate development, to raise revenues and finance public facil- ities and services, and to adapt to changing circumstances and future require- ments. Developers are asked to trade the flexibility they desire to carry out their projects for certainty and predictability in planning. Cities and counties are asked to trade the unrestricted future ability to change, without the developer's con- sent, the rules and regulations governing a project for exactions, dedications, and commitments to infrastructure and to a project's amenities and quality. Successfully negotiated development agreements satisfy the objectives of both sides: • Withstanding legal challenges to its terms or approval; • Satisfying the developer's objectives for certainty in planning and limiting future public participation to reasonably defined parameters; • Providing adequate assurances to the public that public benefits from the project will be realized; and 134 In this case, the developer will want the agreement to be silent or will want to expressly reserve any rights conferred by these statutes. The county or city, if the issue is raised, may want the developer to expressly waive the benefits of these other statutes so that the development agreement controls all issues by vesting development rights. APPROVED LOCAL COASTAL PROGRAM, LAND USE PLAN The statute provides that a development agreement for property subject to the re- quirements of a local coastal plan is not effective if a local coastal plan has not been approved, unless it is approved by the Coastal Commission. An agreement in a coastal zone should expressly state that it does not au- thorize any use of land, density or intensity of development, or any development not permitted by the local coastal program or land use plan approved by the Coastal Commission, as the program or land use plan may be amended and ap- proved by the Coastal Commission. The developer may want the county and city to expressly covenant not to seek any amendment to an approved local coastal program or land use plan with- out its express written consent. et. THE DEVELOPER'S AFFIRMATIVE OBLIGATIONS The developer must negotiate a clear distinction in the agreement between its af- firmative obligations, the failure of which may constitute a breach under the agreement, and conditions of the developer's performance under the agreement, the failure of which merely delay or prevent the developer from proceeding under the agreement. For example, the developer's obligations to supply infrastructure may be based on the developer's being able to proceed with specific elements in the project. Generally, obligations that can be stated merely as conditions to the developer's use of its entitlements are to be preferred, as they avoid defaults or breaches under the agreement itself. The developer will want to limit its affirmative obligations (e.g., to proceed with the project) and provide, in lieu thereof, that its rights to develop are condi- tioned upon meeting certain requirements for planning and financing (e.g., phas- ing, infrastructure, dedications, other public benefits and facilities). The county or city may want affirmative obligations from the developer, in- cluding obligations from the developer to: • Proceed with the development; • Cooperate with the local government in forming assessment districts and other mechanisms for public financing; • Make required dedications; • Participate in, install, or provide public facilities and public benefits; and • Undertake other obligations as necessary. 144 Fe- Jf e- al :ral ie ct ie Le - be ct- on- :s, The city or county may want to specify that construction standards will be those applicable at the time construction permits are issued. On the other hand, the developer will want to freeze construction standards to those in effect at the time of the agreement. If the developer agrees that construction standards will be those applicable when construction permits were issued, the developer should ne- gotiate to limit any new standards to those that do not conflict with the devel- oper's rights under the agreement —or if they do conflict, that the construction standards will apply only to the same extent they would be applicable to substan- tial reconstruction of an existing structure, thereby limiting the applicable stan- dards to those materially affecting health, safety, or other public objectives. INITIATIVES IMPOSING GROWTH CONTROLS OR BUILDING MORATORIUMS A valid development agreement should protect the development from any subse- quent growth controls or traffic initiatives approved by voters that conflict with the rights conferred under the agreement. In the one case pertinent to this ques tion, however, the California Supreme Court narrowly construed an agreement avoid a conflict with a growth control initiative and held that the initiative ap- plied.2 The developer, county, and city may want to address this issue directly, by'; providing: • That any such initiative will be deemed in conflict with the agreement and wi not apply to the development; • That the county and city will not attempt to apply any of the provisions of the initiative unless under a final court order to do so and will resist any judicial or administrative action to impose the initiative; • That the county and city will cooperate with the developer to oppose any appli- cation of the initiative; • That if a final court order holds the initiative to apply to the development, the county and city will use their best efforts to satisfy the restrictions of the initia- tive, the developer may terminate the agreement, and the developer is not deemed to have waived any rights to challenge the initiative or to recover damages. OTHER VESTING STATUTES, OTHER LEGISLATION The California legislature has also provided for a "vesting tentative map," a spe- cial designation on a subdivision map that purports to grant the developer the right to proceed under the approvals and conditions specified for the map. The legislature may in the future enact other statutes vesting development rights un- der certain circumstances. In reaction to recent decisions affecting land use by the U.S. Supreme Court, for example, the legislature may enact legislation requir- ing a "reasonable relationship" between development conditions and exactions and legitimate governmental interests arising out of the development. 143 plan based on the developer's reasonable cost estimates. In some cases, however, the financing plan is to be prepared later. If projected costs for infrastructure are so high that they significantly affect the project's economic feasibility, the parties may want to address the issues involved (the developer's performance, preap- proved transfers, or other changes in the project's scope) if costs exceed a certain level, either specified or determined by a formula that includes allowances for timing and costs of financing. STATE OR FEDERAL LAWS AND REGULATIONS The statute provides that if state or federal laws or regulations enacted after a de- velopment agreement is signed prevent compliance with any of the provisions of the agreement, those provisions will be modified or suspended as necessary to comply with the state or federal laws or regulations. Many development agree- ments simply include the statutory provision. The developer may want to negotiate alternative procedures, such as a pe- riod of good -faith negotiations to seek alternate means of complying with federal or state requirements. If the application of federal or state requirements is general —fur example, the implementation of an air quality or transportation plan the developer will want all others similarly situated to be required to comply. If the application of federal or state requirements would deprive the developer of a ma- terial, bargained -for benefit of the agreement, the developer may want the right to terminate the agreement. The county or city may want to disclaim any liability for acting to imple- ment the federal or state requirement, particularly in areas that have been desig- nated floodplains or wetlands. HEALTH AND SAFETY REGULATIONS It can be legally argued that a development agreement, by implication, is subject to future regulation of health and safety. The city may want to expressly reserve the right to impose rules and regulations necessary for public health and safety, arguing such a reservation is necessary for the validity of the agreement. The de- veloper should try to limit requirements for health and safety to those that can be uniformly applied throughout the jurisdiction and have the legal effect of protect- ing persons and property from conditions creating a risk that could not be reason- ably foreseen at the time of the agreement. The developer should ask for lan- guage to negate any application to limit the intensity of development. CONSTRUCTION STANDARDS The statute provides that unless otherwise specified in the agreement, the rules, regulations, and official policies governing construction standards and specifica- tions will be those in effect at the time the agreement is executed. 142 nt Id .ed in- ), tY- )f th under the agreement. In such instances, the city and county may want to negoti- ate for additional measures of litigation to be implemented by the developer as a condition for proceeding with this project. Finally, it is important for the parties to expressly identify all of the rules, regulations, and official policies governing the development, assembling them in a separate binder for future reference. RESERVED DISCRETIONARY APPROVALS The developer will want to specify and limit future discretion, to be exercised fentiy with prioraTprovals or rights under the agreement. The county or Tifr will want to retain maximum control regarding future discretionary approvals and conditions for permits so long as they do not conflict with prior approvals and rights of the developer expressly spelled out in the agreement. To the extent rights are not expressly granted to the developer, courts are likely to defer to the jurisdiction's retained police power. TIMING OF DEVELOPMENT The development agreement should expressly state that it regulates timing by leaving the matte; to the developer under the agreement, as the California Su- preme Court has held a building limit applicable to an agreement not expressly dealing with timing of development. The county or city may want to specify timing for certain elements of the development. In the absence of express provision, the provisions for timing and phasing in planning approvals and the financing plan generally govern; time limits for subdivision maps, special permits, and building permits also govern. FEES, ASSESSMENTS, SPECIAL CHARGES The developer will want to freeze processing and development fees, assessments, and special taxes at the levels in effect at the time of the agreement. Cities and counties are reluctant to give up their governmental authority to post fees and special taxes, particularly for a long period of time, and their legal ability to do so is questionable in certain cases. The usual compromise is that the local govern- ment agrees not to increase or impose development fees unless they are uni- formly imposed on all developments in the jurisdiction. The developer may nego- tiate a credit or relief from certain fees if it has contributed to infrastructure, dedicated open space, or provided public facilities. Developers will be particularly concerned over the level of fees, assess- ments, and special charges imposed for financing future infrastructure as part of its obligation. The contracting public agency, on the other hand, will resist limit- ing these charges and will want to ensure that the necessary infrastructure will be financed and constructed when required. Usually, the parties agree on a financing 141 • PROVISIONS FOR ANNEXATION The statute permits a city to enter into a development agreement for unincorpo- rated territory within that city's sphere of influence, provided that the agreement does not become operative, with regard to the city, unless annexation proceed- ings are completed within the time specified in the agreement. Otherwise, the city's part of the agreement is void. When the annexing city is a party to the agreement, the agreement should be specific about conditions for and the timing of annexation. The statute also provides that a development agreement previously entered into by a county remain in effect for a city annexing the property. If the agree- ment is not with an annexing city or might subsequently be terminated by an an- nexing city that is not party to the agreement (but future annexation is possible — by vote of new residents after development is partially completed, for example), the developer might want the agreement to specify that the county will oppose any annexation without the developer's consent and that if annexation occurs, the agreement will be binding upon the annexing city. THE DEVELOPER'S RIGHTS The extent of rights vested in the developer could affect the agreement's validity. The statute provides that the agreement specify the uses, density, or intensity of development —frequently by reference to planning approvals. Again, flexibility with regard to future changes can be maintained if the development agreement simply refers to the planning approvals rather than incorporates them into the agreement. The statute also provides that unless otherwise specified in the agree- ment, rules, regulations, and official policies governing permitted uses of land, density, and standards for design, improvement, and construction applicable to the property will be those in force at the time the agreement is executed. The developer will want to broadly vest its rights and will want to ex- pressly negate the applicability of future changes in laws, rules, regulations, and policies. The county or city will want to precisely spell out the developer's rights and make applicable any changes in laws, rules, regulations, and policies not in conflict with existing approvals. An important issue to be considered is whether the developer's perfor- mance or rights under the agreement are subject to performance by other devel- opers and public agencies that might provide regional or off -site infrastructure, particularly roads. For example, the agreement might be predicated on certain road improvements made and traffic service achieved in the general area of the project. The developer will therefore want to negotiate its rights to proceed with the project even if others do not perform their obligations. The developer may also want to limit the ability of the city or county to approve changes in the de- velopment of adjacent sites that would adversely affect the rights of developers 140 that certain other changes, such as changes of ownership resulting from repar- celization, are minor changes not requiring a formal amendment. ASSIGNMENTS AND TRANSFERS The developer will want the agreement to confer several rights: the right to freely assign the agreement in connection with sale of the property, in whole or in part, and to be relieved of obligations as to the property or the portion of it assigned, the expeditious approval of any transfers needed by a local agency, and the lack of restrictions on its ability to reorganize, bring in new investors, conduct its busi- ness, and engage in financing. The county or city may also want several rights: the right to approve assign ments or transfers, to require assignees expressly to assume obligations of the agreement, and to impose restrictions on kinds of permitted assignees dealing with experience, financial resources, reputation, and other matters. When the identity of the developer is a major factor, the local government may want to re- strict changes in developer. These restrictions may be troublesome for both part- nerships and corporations, and developers will want to negotiate reasonable stan- dards of approval and short time periods during which the restrictions will remain it in effect, and exempt certain kinds of changes resulting from bringing in new partners arid investors, business reorganizatiorks, acquisitions, and mergers. The statute does not expressly authorize restrictions on assignment, and the el- courts frown on'Jestrainis on alienationAny restrictions on the identity of the de- , nt veloper or on assignments and transfers should be strictly limited to achieving legitimate public objectives. A developer may be deemed to have waived legal objections if the restrictions are accepted as part of the agreement. (See the dis- 's cussion of this issue in Chapter 10 under "Transferability.") to D- the It PROVISIONS FOR LENDERS The developer will want assurances in the agreement that lenders on foreclosures 1 or deeds in lieu thereof do not affirmatively assume the obligations of agreement (but if they proceed to exercise rights, they will be bound), that lenders will re- ceive notice, and that lenders will have rights to cure default. The county or city may want lenders to be bound by the terms of agree- ment and to hold their security interests "subject to claims and charges imposed on the developer under the agreement." In other words, if a lender foreclosed on the property, it would be liable for accrued claims and charges. Because most lenders are not familiar with the benefits of development agreements and will probably not have been involved in the negotiations, the de- veloper must make sure that provisions are carefully drafted to avoid problems with future lenders. 139 should seek extensions upon its request. The city or county may want a shorter term but should want a term long enough to ensure achievement of public benefits. The term of the agreement could affect the agreement's validity, because the longer the term, the greater the possibility of challenging the agreement on the basis of its contracting away local government's police power. Generally, the shorter the term, the more rigid the assurances that can be given the developer, and the greater the term, the more flexible the agreement must be to deal with future changes. Factors determining the length of the term should include the project's proposed size, the projected completion date, the timing of dedications, the specificity of planning, the likelihood of changed circumstances, and the tim- ing of obligations for infrastructure and its financing, including necessary reim- bursement to the developer. Generally, the longer the term, the more it should be justified through listing the reasons for its length. A reasonable relationship be- tween the project's characteristics, the public purposes to be achieved, and the term of the agreement should be clearly documented in the agreement. CONDITIONS TO THE AGREEMENT'S EFFECTIVENESS Although a development agreement is generally effective upon recordation, in many cases, approvals of other public agencies are required before an agreement is effective. The more common practice is to make agreements in which ap- provals by other public agencies are a condition of approval for certain land use entitlements. Depending on the agency and the nature of the approval, the devel- oper may want to obtain these approvals before final approval of the development agreement. If the developer's interest in the property is an option for an agreement to purchase, the development agreement may be conditioned upon the developer's acquiring title within a specified time. The contracting public agency may want to discourage the developer's ability to speculate on the increase in property value created by the agreement. AMENDMENTS TO AGREEMENT Amendments require the same notices and hearings and adoption by ordinance subject to referendum required of the original agreement. They may be also sub- ject to additional requirements for environmental review. Amendments create the opportunity for local government to reopen other issues previously negotiated. It is therefore in the parties' interest to avoid frequent and formal amendments to the agreement. Amendments can be avoided by permitting specified changes in approved plans and financing documents without the necessity to amend the basic agree- ment. The parties may want to specify a local official to determine initially whether a formal amendment is necessary. The parties may also want to specify 138 �e- : is iut d m 'e- is- ial ee- ro- e olic to ause the and the Recitals should also include all planning and environmental approvals, in- cluding those for the development agreement, all other considerations for the agreement, such as settlement of litigation or disputes, and a statement that the agreement is voluntarily entered into in consideration of the benefits to and the rights and obligations of the parties. IDENTITY OF PARTIES Alt private parties with legal interests in the property should be parties to the agreement. Private parties with equitable interests, such as secured lenders, ease- ment holders, and ground lessees, may be required to be parties. The identity o the developer may be important to the local government, particularly if the local government is relying on the developer's ability to make or provide important public facilities and benefits or to achieve a specified quality of development. The public party to a development agreement is the city or county having. primary jurisdiction over land use. This requirement is an inherent weakness in the statute, as not all public agencies with authority for review and approval of a project may be involved in negotiating the terms of the agreement and will not be bound by its terms. Limited authorization in the statute prevents the other gov- ernmental bodies with such authority federal or state agencies, coastal commis- sions, and local sanitation, water, reclamation, air quality, mosquito abatement, fire, and education districts —from being parties to a development agreement. PROPERTY The property should be described with a legal property description and a map. The developer may want a provision to automatically include subsequently ac- quired property. If more than one owner is involved, they should be clearly iden- tified with reference to the parcels they own. It may be desirable to anticipate and deal with issues arising from multiple parcels, such as conformity of the parcels to zoning lines and reparcelization for development. In some instances, a master subdivision map may be filed with the agreement to be implemented by the filing of separate plats. TERM California law requires that an agreement be for a specific duration. Early agree- ments tended to be negotiated for relatively short terms, usually three to five years. This amount of time was not sufficient for larger, multiphase projects, how- ever, and subsequent development agreements are being approved with terms of l0 to 25years, with shorter terms containing provisions for extensions. The developer will want the longest possible term tied to the develop- ment's completion or the duration of financing; for shorter terms, the developer 137 The development agreement should be viewed as a basic, implementing', document. It is better not to incorporate detailed planning provisions but to let the plan stand by itself. Flexibility (i.e., density transfers), phasing (i.e., require- ments for infrastructure), and timing for development, design guidelines, and spe- cific requirements of the plan should be provided in the planning documents. It is also better not to incorporate detailed provisions for financing but to set them out in separate documents. Planning and financing documents can thus be amended as circumstances require, providing flexibility in development without the neces- sity of amending the development agreement. Generally, the level of planning approvals and the nature of the project de- termine the degree of flexibility needed in the agreement. A relatively short-term project that has already obtained all final discretionary approvals will probably re- quire a fairly straightforward agreement. If the project is complex, however, in- volving phasing and developments over a long period of time, or if important dis- cretionary planning approvals are to be obtained in the future, the agreement should reflect this complexity and must be carefully negotiated to deal with fu- ture approvals and changing conditions. In the absence of authoritative case law, the parties might consider judicial action to validate the development agreement. Validating the development agree- ment could avoid collateral challenges and facilitate both public and private fi- nancing. Validation would also resolve any open issues concerning particular pro- visions (e.g., consistency with the community plan, contracting away the police power) and could facilitate the issuance of bonds and other mechanisms of public financing. SPECIFIC PROVISIONS The following paragraphs discuss the California law but in most aspects apply to the laws and practices in other states. RECITALS Recitals are important to the validity and interpretation of the agreement. Because the approval of an agreement is declared a legislative act, only the findings in the approving ordinance, the associated environmental and planning documents, and the recitals and terms of agreement can be looked to for legislative intent and the balancing of the parties' interests the agreement is designed to achieve. Detailed recitals of public purpose and consideration should include: • Planning history of the project; • Public benefits, including benefits to the coastal plan; • Private benefits, inducements, and reliance; and • Tradeoffs by both sides. 136 MS ol t is ect e ia d as- tcil- j.r ed nd ure ject Having enough flexibility to withstand the test of time without needing subse quent amendments. LEGAL CONSTRAINTS California's legislation governing development agreements is permissive, authoriz- ing cities and counties to adopt procedures consistent with the state statute to en- ter into development agreements. Procedurally, a development agreement is characterized by statute as a leg- islative act. It must be approved by ordinance, after a notice of public hearing, and is subject to referendum. The legislative body must find that the agreement is consistent with the community's general plan and any applicable specific plan. Requirements for environmental review must be followed, and an environmental impact report may be required. While development agreements may be approved any time, in practice most development agreements are processed and approved concurrently with the basic planning approvals for a project. Development agreements must be capable of meeting the specific tests of due process procedures, including environmental requirements, and the more general legal challenges to contracting away the police power. Analogous cases indicate the courts may consider whether development agreements are "fair, just, and reasonable" to the public agency in light of the circumstances of the particu- lar project. A decision of the U.S. Supreme Court requires that planning requirements be rationally related (the "rational nexus") to a legitimate public objective.1 De- velopment agreements, as voluntary contractual obligations agreed to by a devel- oper, should not be subject to so strict a test. To the extent that requirements are imposed as part of the planning process or that the development agreement itself is deemed "imposed" on a developer rather than being voluntarily entered into, however, the test of rational nexus must be considered for the validity of such requirements. Principles of contract law, including requirements for mutuality of consent, adequacy of consideration, and rules of interpretation, will probably also be ap- plied in interpreting development agreements. It is therefore desirable that the agreement set forth extensive recitals of the mutual benefits and reasons for both sides to enter into it so that a court will have a clear indication of both sides' ex- pectations, the demonstration of tradeoffs, the recital of public benefits, and the consideration underlying the agreement. APPROACHES TO DRAFTING A DEVELOPMENT AGREEMENT The parties must follow the statute, complying with both substantive provisions and procedural requirements. Any subsequent amendments to a development agreement will be subject to notice and hearings and adoption by ordinance sub- ject to referendum, the same as the original development agreement. 135 1 THE °ELATION OF DF,VELOPMENT AGRF,EMENTS TO PLANS AND PLANNING DOUGLAS R. PORTER evelopment agreements are negotiated within a context of municipal planning and regulation of development. Most municipalities have pre- pared and adopted comprehensive land use plans that suggest appropriate types of development for properties; some also have carried out sector or neigh- borhood planning that depicts potential uses in greater detail. Zoning ordinances, of course, prescribe permitted land uses, and subdivision regulations and a host of special ordinances may regulate other aspects of development. Other plans are prepared for streets, highways, and other infrastructure systems, indicating the lo- cations of needed capital improvements, and capital improvement programs may define the timing and cost of construction for such facilities. Such planning, however, frequently is incomplete, in transition, or obsolete. Especially in rapidly developing areas, plans and planning staffs are quickly over- whelmed by changing conditions. Communities annexing new territory often find little guidance in official plans for future use of those properties. In such circum- stances, development agreements may happen in a near -vacuum of development policies and regulations. But even if plans are available, programs for implementa- tion may lack the detail and force to provide workable guidance for development agreements. State statutes enabling municipalities to adopt development agreements generally require that agreements conform to existing plans and regulations but provide little specific guidance. California's enabling act, for example, provides that: A development agreement shall not be approved unless the legislative body finds that the provisions of the agreement are consistent with the general plan and any applicable specific plan.1 148 tives of encouraging large-scale, quality development consistent with the public interest over the long term will depend in large measure on the care and under- standing with which they are drafted initially. As a tool for implementation, de- velopment agreements can further sound, balanced planning. NOTES I Nollan v. California Coastal Commission, 483 U.S. 825 (1987). 2Pardee Construction Company v. City of Camarillo, 37 Ca1.3d 465 (1984j. .. l 147 CHAOS IN THE SYSTEM: DEALING WITH CHANGE AND IMPASSE The test of a soundly negotiated and well -drafted development agreement is how well it stands over time. A project expected to take longer than five years can be expected to change as market conditions, project economics, and other factors change. Changing circumstances, changing markets, changing economic, social, and environmental conditions, and changing political and community priorities contribute to what might be described as the inherent chaos in the local planning system. The developer might find that it has given away too much in the bargaining process for the project to be successful. The local government might find that it has hampered its ability to deal with emerging public policies after approving the project. How can the parties anticipate the need to deal with change yet still as- sume that both private and public sectors will achieve their bargained -for benefits? Several strategies are possible, each of them designed to keep both parties motivated to see that the agreement stays in effect and that its objectives are car- ried out. One strategy is to phase public benefits, deferring dedication of open space and provision of vital community infrastructure to the later phases of develop- ment. For example, the parties can agree that the developer's_dediqation of open space and parklandillbe_cononal,-,—w-itlifinal edication occvning_a_t_a_spec- IALI Phase of the private kyslospent. Another strategy is to anticipate the areas where changes in the project might occur and establish the standards and criteria for those changes to occur and be approved. A developer's abili,to transfer densities or_particular Jand us_q5 within prescribed limitations is a common feature of many development agreements. ----1516C-Jures to resolve impasses can be structured into the development agreement to forgo future litigation or prevent arbitrary actions by either party. Good faith efforts to resolve unforeseen circumstances affecting the development agreement can be mandated for both parties. Too often the tendency is to' approve a development agreement without considering adequately future changes and unforeseen circumstances. The local government's goal should be to maintain the developer's obligations to substan- tially provide the bargained -for public benefits, while the developer's goal should be to keep the achievement of the bargained -for public benefits tied to its ability to successfully complete the project. CONCLUSION The process of negotiating development agreements is still in an early stage of evolution. Whether development agreements will achieve their statutory objec- 146 r efits re- nt )- to ith- To the extent practical, the developer's affirmative obligations should be refer- enced to applicable planning and financing documents, making compliance with such obligations a condition for exercising rights under the agreement. THE LOCAL GOVERNMENT'S AFFIRMATIVE OBLIGATIONS The city or county may want to limit or completely eliminate any affirmative obli- gations on its part, except to be bound by the terms of the agreement in approv- ing the development of the project. Nevertheless, the developer should require the following affirmative,obligations on the Raft of the local • To expeditiously and in good faith process, approve, and issue subsequent appli- cations for development approvals, permits, and land use entitlements, consis- tent with the terms of the agreement; • To accept dedications and public improvements to be made by the developer; ° To implement public financing for the project; • To cooperate with the developer in the formation of assessment districts and 1 other financing mechanisms; i • To undertake other public actions necessary for the project to proceed; and • To cooperate with the developer in obtaining in a timely manner any actions, consents, or approvals required from any other governmental authority. af- DEFAULT, REMEDIES, TERMINATION The statute requires that the city or county annually review the developer's per- ider formance under the development agreement and that the local government may re amend or terminate the agreement if the developer is found to be in default. Be - in cause of this provision, the parties may want to negotiate very carefully the man- ner in which the annual review is conducted, including the report or materials r the developer may be required to submit, the local official initially charged with conducting the review, and the extent to which the results of the review will be !ed submitted to the local planning commission or legislative body. .di- All parties should receive notice of the review and opportunity to respond as- to any charges that might lead to default. Because all parties will rely on the agreement, termination on the part of in- the local government should be limited and other procedures to resolve an im- passe invoked before termination occurs. Specific performance and mandamus, where applicable, should be the preferred remedy. The nondefaulting party should be excused from performance. Both parties er may want to expressly preclude damages against them, limiting remedies to equi- relief or termination. Upon termination of a development agreement, the parties should still re- tain whatever rights or remedies would have existed between them under gen- eral planning laws had the agreement not been entered into. 145 Revisions to Draft "Agreement Amending Development Agreement No. 1-89" Submitted on behalf of Tower Development, LLC April 24, 2003 1. Page 1, paragraph 5: revise a portion to read as follows: " while subjecting the Development to certain any and all other Development Fees 1) 2. Page 2, paragraph 3: revise a portion to read as follows: " City Council hereby finds are necessary for the purpose of meeting certain police, fire and road maintenance operating expenses and obtaining funds necessary for capital projects 3. Page 2, paragraph 4: revise portion to read as follows: City requires additional funding to meet certain public service and fire and police public safety and read maintenance needs within 4. Page 3, Section 5.2 Time of Payment. revise a portion to read as follows: " in accordance with the applicable time frames set forth in the attached Exhibit "A". Existing Land Use Regulations." 5. Page 4, Section 5.3 Fee Credits. replace this entire section with the following: "In connection with the development of Rancho San Jacinto certain public facilities have been constructed, including: a) eight (8) public parks and a connecting trail system, and b) the storm water drainage system along Esplanade Avenue. The above facilities have been completed pursuant to Section 5.1 of the September 19, 1989, Development Agreement for this project, therefore OWNER and its successors -in -interest shall be granted credit for payment of the full amount of the City's park development fee and flood control improvement fee." 6. Page 4, Section 5.6 Expiration of Development Fee Limitation Period. Revise a portion to read: " the term 'Development Impact Fee Limitation Period" means the period that commences on the Effective Date and expires on the expiration date of the Development Agreement (February 14, 2010) date that is five (5) years followingthe Effective Date. " 7. Page 4, Section 5.7 Residential Traffic Mitigation Fee. delete the following sentence: "Nothing contained in this Agreement shall be construed reducing e otherwise limiting OWNER'S obligation to pay any and all th__ D_ . _'_ __t F_ sed—by _r____ r the CITY." 8. Page 5: Delete entire Sections 5.8 Services CFD, Section 5.9 Non -Development Lots, and Section 5.10 Adopted City Policies. These sections require participation in the formation of a new all to fund police, fire, and transportation services. However, this is not legally feasible because the existing CFD created for this property last year to refinance the defaulted bonds for Rancho San Jacinto already puts this property at or near California's 2 % statutory property taxation limit. On Time Delivery For Less 800 334-5000 Call For A Pickup! Tivacking Number 697502547 Online Tracking at www.calover.com Service Options is checked, Sunrise Sere evIIi be apptved, Hrolgfd u 300 bra - Delivery by 5t00 P.M. Nate: deCvpry times for at sandces may be later in sane areas, k seadce gade or Udall our wobodFe for cosh's. SUNRISE - BY 10:30 AM' SUNRISE GOLD - BY 8:00 AM 0 HEAVYWEIGHT" Declared Value $ (.rrararm 525,n 0 Saturday Delivery - Extra Charge lire Sen4cn Gate tortlm*mtGt 0 C.O.D. Amount $ (at, C.D.D. tag In pastarel ---- 0 HOLD FOR PICKUP 0 This shipment requires a del very e tr afDr CALIFORNIA OVERNIGHT COPY Time Billing Information If none is selected, shipper twit be Invsiced. Bill Shipper's Accoun 0 Bill Recipient Accl # 0 Bill Third Party Acct k Weight Specify: 8 oz. Letter or Weight lbs. (Subject to verification) Dim weight charge if greater than actual weight L_ x W _---- x H +225 • • • • • • • • • , • , • , • • • •, • • • ; • • a • • • • • • • g • g • • • • • • • • • • • • • • • • ; • • • . • g • • • • 4. • • • • • • • • • • • • • • • • • • • • • • • • • • ,,, • • • • • • • • • • • • • • • • • • • • • • • • • . . • NOTICE OF PUBLIC HEARING Notice is hereby given that on April 24, 2003, at 7:00 PM at the San Jacinto Unified School District Board Room, 2045 S. San Jacinto Street, San Jacinto, California the San Jacinto City Council and San Jacinto Planning Commission will hold a public hearing to consider Amending an existing Development Agreement and new Development Agreements setting forth certain financial arrangements for the following projects: Garret Group — Amendment No. 8 to Development Agreement 1-89, pertaining to the Rancho San Jacinto Specific Plan, located east of Hewitt Street, north of Washington Avenue, south of Evans Street. Osborne Development - Tract 28858 - located on Ramona Boulevard at Savory Lane; Tentative Tract 29917 — located on the south side of Park Avenue, just east of Hewitt; Tentative Tract 30136 — located on the south side of Main Street, just west of the Ramona Expressway; 29,000 square foot commercial parcel located on the east side of San Jacinto Street, just south of Esplanade Avenue. Empire Homes — Tract 29314 — located on the southwest corner of Meridian and Washington; Tentative Tract 30644 and Tentative Tract 31035— located on the west side of San Jacinto Street, just north of the Ramona Expressway; Tentative Tract 30481 — located on the north side of Cottonwood Avenue, between Kirby Street and Lyon Avenue; and a future residential project on the northwest corner of Main Street and Ramona Expressway. Riverside Valley Land Company — Tentative Tract 30944 — located on the northwest corner of Cottonwood Avenue and Lyon Avenue. Further details are available in the Community Development Department, 248 E. Main Street, San Jacinto, CA. Phone (909) 487-7330. Timothy M. Hults Community Development Director 248 E, Main Street San jacinto, CA 92583 Tel: 909/487-7330 FaX: 909/654-9896 ,,,Aromisci.san-jacinto,ca,us Dorothy Chounard Agendas for the 24th` .& 1 l From: "Michelle Gibson" <mg|bson@ooaw1.com> ` To: <dchouinard@so jacintoma.us> Date: 4/18/03 10:27AM ` Subject: Agendas for the 24th & 25th; Staff Report; Development Agreements Hi Dorothy — We spoke onthe phone this morning but | thought that | would also submit my request in writing just in case | overloaded you. | know how busy you are and how late you were at the City last night. | so appreciate you helping mowith all ofthis. Have agreat weekend. | look forward toworking with you in the future. | need toget acopy ofthe agenda for April 24tland 25thassoon asthey become available. |naddition tothe agendas, honeeds copies ofthe staff reports that pertain to any matter regarding a development agreement item. In other words, any project that may be listed on the agendas for the 24th and 25thBob wants tosee what other development agreements look like. He needs these documents byMonday. Soinaddition tothe agendas, woneed all the staff reports for the Cove AND any development agreement documentation that may be hoard NOT na|abad to our client. Thanks again, Michelle Gibson AJhadeff&Solar, LLP 434GORidge Park Drive, Suite 27O Temecula, CA9259O Phone-909)699-7556 Fax-909)699-6191 Apr 21 0 ALHADEFF & SOLAR, LLP 43460 RIDGE PARK DRIVE, SUITE 270 TEMECULA, CALIFORNIA 92590 MAIN TELEPHONE: (909) 699-7556 FACSIMILE: (909) 699-6191 Offices in San Diego and Temecula, California FACSIMILE TRANSMISSION FILE NUMBER: NAME FAX NO. PHONE No. To: Dorothy Chouinard City Clerk San Jacinto 654-3728 654-7337 From: Debbie Lindberg 909-699-6191 909-699-7556 RE: The Cove NUMBER OF PAGES, INCLUDING COVER PAGE: 13 ORIGINALS FOLLOW BY MAIL: No MESSAGE: Hi Dorothy, Thanks again for your assistance in The Cove project. Could you please distribute the attached letters to the appropriate individuals? Looking forward to seeing you at Thursday's hearing and again I appreciate your assistance. CAUTION - CONFIDENTIAL THE ACCOMPANYING DOCUMENT IS INTENDED SOLELY FOR THE USE OF THE PARTY SPECIFIED ABOVE AND MAY CONTAIN INFORMATION THAT IS PRIVILEGED, CONFIDENTIAL AND PROTECTED FROM DISCLOSURE BY APPLICABLE LAW. IF THE READER OF THIS MESSAGE IS NOT THE ABOVE -SPECIFIED RECIPIENT (OR AN EMPLOYEE OR AGENT RESPONSIBLE FOR DELIVERING THIS MESSAGE TO THE INTENDED RECIPIENT), DISSEMINATION, DISTRIBUTION OR COPYING OF THE ACCOMPANYING DOCUMENT IS STRICTLY PROHIBITED. IF YOU HAVE RECEIVED THIS TRANSMISSION IN ERROR, PLEASE IMMEDIATELY NOTIFY THE ABOVE -IDENTIFIED SENDER BY TELEPHONE. THANK YOU, IF YOU DO NOT RECEIVE ALL OF THE PAGES, PLEASE CALL MICHELLE ASH AT (909) 699-7556 AS SOON AS POSSIBLE. CAW' NDO WS \ DESKTOP FAX COVER.DOC ^~''`~ meeting Page 1 [ From: "Jeff Ballinger" <J8 com> To: �dchouinard — . V�sargamn�x�a.us>.<mrodhguez@sanjacinboca.us> Date: 4/21/03 12:20PM Subject: 4/24/03meeting Here are our suggested revisions. Also, please add the following line tothe "effective date" portion ofevery ordinance adopting a Development Agreement, "This Ordinance and the Development Agreement affected thereby shall not become effective unless and until the City of San Jacinto has received full reimbursement from Applicant for all costs and fees associated with the negotiation, drafting and execution of the Development Agreement." As far as I know, Cove hasn't responded to our request last week for an additional $10,000. Bernie, could you confirm whether everyone has paid the $5,000 deposit? Jeffrey S. Ba|hnger, Esq. Best Best& Krieger LLP 3750University Avenue Suite 400 Rimsnside, California 92502 Ph. 909.686.1450 Fx. 909.686.3083 E'Mai|J8BaUinger@bbk|aw.com CAUTION - CONFIDENTIAL: THE DOCUMENT BEING SENT TO YOU MAY CONTAIN INFORMATION PROTECTED BYTHE ATTORNE\-CL|ENT[WORK PRODUCT PRIVILEGE. It isintended only for the person towhom itisaddressed. |fyou are not the intended recipient oran authorized agent. [hen this is notice to you that dissemination, distribution orcopying ofthis document is prohibited. |fthis was received inerror, please call usatonce and destroy the document. x^>"Mimi Rodriguez" <mrodrigacinhocaus>04/21/0310:34AM >>> Here's a copy of the agenda for Thursday CC: "John Brown" <JEBnown@bbklaw.com>, <thults@msn.com>. Dorothy Chouinon1_Re: Joint Meeting San Jacinto council and Commission �'_ � �`. � _`�Poge1 | From: "Marco Martinez" <MAMartinez@bbk|ow.com> To: <mrod rig uez@so jacinbxco.ua> Date: 4/18/032:21PK8 Subject: Re: Joint Meeting San Jacinto council and Commission DoroUlv& Mimi: Here are mypreliminary comments about the agenda. | checked the titles onlast night's agenda. VVeshould remain consistent. Thus, this should be the revised title: "Adjourned Regular Meeting ofthe San Jacinto City Council, Adjourned Special Meeting of the San Jacinto Planning Commission and Special Joint Meeting ofthe San Jacinto City Council and Planning Commioaion." Also, weshould note that all ofthe closed session items are continued from the April 24 meeting. Finally, | noticed that the new public hearings are all amendments todevelopment agreements. These. | pnasume, will be amended via ordinance. If that is the caae, you should beaware that they cannot bepassed (2dreading) atother than oregular meeting ofthe city council. I will review these with Jeff and John on Monday. Marco & Martinez, /UCP Best Best & Krieger LLP 375UUniversity Avenue P.O.Box 1U28 Rkmnside, CA 92502 (808)686-1450 (8UQ)G8G-3U83Fax >>> "Mimi Rodriguez" <mrodhguez@oo jacinhzcous>U4/18/U3U1:57PK4 Please review the attached agenda for our special, adjourned, regular joint meeting. Thanks Marco. ��� CC: "John Brown" <JEBrown@bbklaw.com>, "Jeff Ballinger" <JSBallinger@bbklaw.com>