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11-0621_STROSCHER G3 LLC_E1_Agenda Report_Supplementary
6/21120"11 SUPPLEMENTARY AGENDA REPORT E1 TO. Dave Adams, Interim City Manager FROM: Grant Taylor, Development Services Director SUBJECT: Consideration of an Ordinance Approving a Development Agreement for the Plaza Banderas Hotel Project; Stroscher G3, LLC has Requested Approval of a Development Agreement for a Previously Approved Project Consisting of a 124-Room Hotel, Consisting of 76,363 Square Feet ("Hotel") on Approximately 2 Acres; 10,169 Square Feet Two Story Office/Retail Building Consisting of 6,467 Square Feet of Retail on the First Floor ("Retail Component") and 3,702 Square Feet of Private Office on the Second Floor (the "Private Office Space"); 6,095 Square Feet for a Restaurant ("Restaurant") and 190 Parking Spaces on an Existing 3.18 Acre Property Located at 26871 & 26891 Ortega Highway and Generally Located at the Northeast Corner of Ortega Highway and El Camino Real (Assessor Parcel Numbers 124-17012, 14, 15 & 16) (Stroscher G3, LLC) RECOMMENDATION: Open the public hearing, receive public testimony, and close the public hearing; and by motion: 1. Continue the Public Hearing for consideration of the DRAFT Ordinance and DRAFT Development Agreement to the June 30, 2011 City Council meeting. APPLICANT/PROPERTY OWNER APPLICANT AGENT Stroscher G3 LLC, Civic Solutions Gretchen Stroscher Thomson Tom Merrell PO Box 129 27362 Calle Arroyo San Juan Capistrano, CA 92693 San Juan Capistrano, CA 92675 A. BACKGROUND On October 5, 2010, the City Council approved the first reading and introduction of an ordinance certifying the Environmental Impact Report (EIR) and approving Rezone (RZ) 10-001 for the proposed Plaza Banderas Hotel project; and, adopted a resolution certifying the Environmental Impact Report (EIR), and approving General Plan Amendment (GPA) 10-001, Architectural Control (AC) 10-002, Grading Plan Modification (GPM) 10-001, Tree Removal Permit (TRP) 10-003, Floodplain Land Use Permit (FP) 10-001, and Tentative Parcel Map (TPM) 10-001. Agenda Report June 21, 2011 Page 2 On October 19, 2010, the City Council approved the second reading and adoption of the ordinance for the Plaza Banderas Hotel project. While all the necessary legislative and discretionary planning applications have been previously approved by the City Council,the applicant's proposed Development Agreement remains for consideration. Also, last July (2010), the City Council adopted an amendment to the City's fee resolution reducing certain "development impact fees" including water, sewer and traffic, for hotel and auto dealership uses by 75% to encourage the development of such uses. The retail, restaurant and office components are not included in the impact fee reduction. On December 14, 2010, the Planning Commission reviewed and provided comments on the proposed DRAFT Development Agreement. The Commission expressed concerns with the entire draft Development Agreement and felt that the proposed language was at odds with the discretionary approvals and that it should be denied by the City Council. On January 11, 2011, the Planning Commission reviewed and provided additional comments on the proposed DRAFT Development Agreement. On January 18, 2011,the City Council conducted a public hearing to considerthe DRAFT Development Agreement. The Council provided comments and requested that staff continue to work with the City attorney and the applicant on the DRAFT agreement (See Attachment 2, January 18, 2011 CC Meeting Minutes). The item was continued to the February 15, 2011 meeting. On February 15, 2011, the City Council continued consideration to the March 1, 2011 meeting in order for City staff and the City Attorney to continue negotiations with the applicant on the proposed DRAFT agreement. On March 1, 2011, the City Council continued consideration to the March 15, 2011 meeting in order for City staff and the City Attorney to continue negotiations with the applicant on the proposed DRAFT agreement. On June 21, 2011, the City Council continued consideration to the June 30, 2011 meeting in order for City staff and the City Attorney to continue negotiations with the applicant on the proposed DRAFT agreement. B. Development Agreement The applicant has prepared and submitted a revised draft Development Agreement that would establish specific assurances and responsibilities on the part of both the applicant and the City. On September 7, 2010, The City Council formed an Ad-Hoc Subcommittee to focus on the specific provisions pertaining to Fiscal & Economic Impacts on the City as proposed in the draft Development Agreement. The Ad-Hoc Subcommittee consisted.of Councilmen Hribar and Nielsen. The Subcommittee along with staff and the City Attorney have met with the applicant and their attorney on several occasions to negotiate the proposed draft agreement. Agenda Report June 21, 2011 Page 3 Following the City Council meeting of January 18, 2011, the ad hoc committee now consisting of council members Freese and Taylor, City staff and the City Attorney continued negotiations with the applicant's attorney based on comments from the Commission and Council. Staff presents the following main issues for City Council consideration: Section 2.3, Term. The Agreement is proposed to commence on the effective date of the ordinance approving it and will terminate at the end of the day immediately preceding the fifth (5th) anniversary of that effective date of the ordinance. It is subject to specific termination provisions set forth in the agreement. However, so long as the developer is not in Default of the agreement and the agreement has not been otherwise terminated, the developer may request the City to extend the Term for up to three (3)one-year extensions. The City retains the discretion as to whether to approve or deny any such extension request(s) made by the developer. The developer's request(s) to extend the term shall be submitted not more than one hundred eighty (180) days and no less than sixty (60) days before the end of the term. Section 2.5.1 Transfers and Assignments. This section provides that the developer shall not assign all or any part of this Agreement without the prior written approval of the City, which approval will not be unreasonably withheld. Section 3.1 Vesting. This section provides that the developer has and shall have the right to develop the Project on the Property consistent with the Development Plan and the Development Plan Approval(s), including, without limitation, the Future Development Approvals after the same have been issued or approved by CITY and become effective ("vested right"). Section 3.7.1 Applicability of Tem ora Reductions in Development lm act Fees. On July 20, 2010, the City Council adopted Resolution No. 10-7-20-01, mandating a seventy-five percent (75%) reduction in sewer, traffic, and water Development Impact Fees for hotels and vehicle dealerships from the rate otherwise applicable for commercial/industrial uses (collectively, the "Decreased Impact Fees"). On May 17, 2011, the City Council adopted Resolution 11-05-17-01 extending the expiration of the reduced fees for six months to January 31, 2012. Notwithstanding the expiration of the reduced fees, the Project shall be subject to the Decreased Impact Fees, as long as the first building permit for construction of the hotel building is issued on or before the second (2"d) anniversary of the Effective Date. If the first building permit for construction of the hotel building is issued after the second (2nd) anniversary of the Effective Date and before the third (3r ) anniversary of the Effective Date, thea the Project shall qualify for a fifty percent (50%) reduction in sewer, traffic and water Development Impact Fees. If the first building permit for construction of the hotel building is issued after the third (3rd) anniversary of the Effective Date and before the fourth (4t") anniversary of the Effective Date, then the Project shall qualify for a twenty- five percent (25%) reduction in sewer, traffic and water Development Impact Fees. No reduction will be available after the fourth (4th) anniversary of the Effective Date. Pursuant to Resolutions Nos. 10-7-20-01 and 11-0517-01, the Decreased Impact Fees shall apply Agenda Report June 21, 2011 Page 4 to the hotel portion of the Project. Furthermore, the parties agree that if the expiration date of Resolutions 10-7-20--01 and 11-05-17-01 is extended or a similar fee reduction program is established which provides lower fees than those stipulated to in the Agreement, the lower fee program shall apply. Section 4.1.3 Water System Upgrade. This section provides that the Project Mitigation Measure MM 4.11.201b and Project Condition of Approval No. 48 require Developer to construct a loop system to run from a POC in the 350C system at the intersection of El Horno and the 1-5 Freeway("El Horno Section") to a connection to the 350C system at the intersection of Ortega Highway and Avenida Los Cerritos ("Ortega Section"). Compliance of these conditions may be resolved as follows.- a. ollows:a. During the future reconstruction of the Ortega Bridge over the 1-5, City has requested Caltrans to provide for the water interconnect required to create the Ortega Section loop. Should the EI Horno Section provide sufficient fire flow as determined by the Fire Marshal, Developer shall not be required to construct the Ortega Section. Prior to the time the Ortega Section is to be constructed, Developer and City will consider Developer's fair share for the cost of construction and/or the Parties will enter into a reimbursement agreement to specify Developer's fair share and reimbursement for the Ortega Section construction. City will waive this requirement in the event that grant funding becomes available to fund the construction of the Ortega Section. b. Developer shall construct the EI Horno Section to provide sufficient fire flow to the Property as determined by the Fire Marshal. Developer and City may reconsider Developer's fair share for the cost of construction should new development be proposed, which would benefit from the El Horno Section construction. The Parties may further enter into a reimbursement agreement to specify Developer's fair share and reimbursement should new development be proposed, which would benefit from the El Horno Section construction. City will waive this requirement in the event that grant funding becomes available to fund the construction of the Ortega Section. Section 4.2.1 Under rounding of Power Lines. This section provides that subject to exercising its legislative discretion, City shall consider the creation of a utility district("Utility District") to fund the Undergrounding of Power Lines. Regardless of when the Utility District is formed, the Utility District shall be responsible for funding, designing, and constructing the Undergrounding of Power Lines. Developer shall support creation of a Utility District, and agrees to have the Property subject to assessment, if such a district is formed by City. In such a situation, Developer shall be deemed to have satisfied Project Condition of Approval No. 118. If formed, the Utility District shall consist of additional benefitted properties, in addition to the Property. If City has not created the Utility District, and not imposed the assessment on relevant properties in the area, including the Property, before issuance of the first (1s) certificate of occupancy for the Project, City agrees that Developer shall have no obligation to Underground the Power Lines, and Developer shall not be required to comply with Project Condition of Approval No. 118. If City forms and funds the Utility District after the issuance of the first (1s) certificate of occupancy, Agenda Report June 21, 2011 Page 5 Developer shall support creation of the Utility District and agrees to have the Property subject to assessment, if such district is formed by the City. If City or the Utility District elects to Underground the Power Lines, Developer agrees to provide City or Utility District with a temporary construction easement, with the terms of such easement to be mutually agreed upon by the Parties, to allow the undergrounding of the lines to occur. For clarification of the foregoing provisions pertaining to the Undergrounding District, the Council might recall that when the Council approved the project, it reviser[ Project Condition 118 to be addressed in the development agreement. Section 4.2.2 Reconstruction of Project EntnMay. This section provides that the City agree to assist the developer in its attempts to have Caltrans reconstruct the project entryway, due to the future relocation and expansion of Ortega Highway, The City's assistance to the developer shall not include any financial assistance unless the City, in its sole discretion, determines to provide financial assistance. Section 4.2.3 Reversion of Portions of the Ortega Highway Rights-of-Way. Subject to exercising of its legislative discretion,the City agrees to undertake all reasonable good faith efforts to re-convey to the developer the excess Ortega rights-of-way adjoining the property. FINANCIAL CONSIDERATIONS The developer deposit submitted by the applicant to recover staff costs of processing the General Plan Amendment and associated entitlements is currently overdrawn by $20,390, respectively. Further charges for staff time will be necessary to complete application processing with the Design Review Committee and Planning Commission. Staff requests paying deficits and providing an additional $5,000 developer deposit. Notices to collect overdrawn amount have been mailed to the applicant. Staff has generated a summary table of the estimated "costs" of the Draft Development agreement (See Attachment 4, Estimate of Proposed Cost Distribution). PUBLIC NOTIFICATION Pursuant to Title 9, land Use Code, Section 9-2.302(f), Notification Procedures, a public hearing notice has been mailed to all property owners (as listed on the Orange County Real Property Tax Assessment rolls)within five-hundred (500)feet of the project, has been published in the Capistrano Valley News at least ten (10) days prior to the hearing, and has been posted at three public locations. Copies of this agenda item have been provided to the applicant and their representative through posting of the agenda packet on the City's website (See Attachment 3, Public Hearing Notice). Agenda Report June 21, 2011 Page 6 RECOMMENDATION: Open the public gearing, receive public testimony, and close the public hearing; and by motion: 1. Continue the Public Hearing for consideration of the DRAFT Ordinance and DRAFT Development Agreement to the June 30, 2011 City Council meeting. Respectfully submitted, Prepared by: oa4�e�jff"_ Grant Taylor David Contreras Development Services Director Senior Planner Attachments: 1. Draft Ordinance and Development Agreement for the Plaza Banderas Hotel. 2. January 18, 2011 CC Meeting Minutes. 3. Public Hearing Notice. 4. Estimate of Proposed Cost Distribution. ORDINANCE NO. xxx AN ORDINANCE OF THE CITY OF SAN JUAN CAPISTRANO APPROVING AND ADOPTING A DEVELOPMENT AGREEMENT FOR THE PLAZA BANDERAS HOTEL. . PROJECT The City Council of the City of San Juan Capistrano hereby ordains as follows: SECTION 1. Recitals & Findings 1. Stroscher G3, LLC (Gretchen Stroscher Thomson) has requested approval of a Development Agreement, entitled "Development Agreement (Plaza Banderas Hotel and Mixed Use Project) by and between the City of San Juan Capistrano and Stroscher G3, LLC"; and, 2. On October 5, 2010, the City Council approved the first reading and introduction of an ordinance certifying the Environmental Impact Report (EIR) and adopted a resolution certifying the Environmental Impact Report (EIR). On October 19, 2010, the City Council approved the second reading and adoption of the ordinance for the Plaza Banderas Hotel project. While all the necessary legislative and discretionary planning applications have been previously approved by the City Council, the applicant's proposed Development Agreement remains.for consideration; and, 3. The Planning Commission conducted duly-noticed public meeting on December 14, 2010 and on January 11, 2011 pursuant to Title 9, Land Use Code, Section 9-2.335, and Public Hearing Procedures to consider the draft development agreement; and, 4. The City Council conducted a duly-noticed public hearing on January 18, 2011, February 15, 2011, March 1, 2011, June 21, 2011, and June 30, 2011 pursuant to Title 9, Land Use Code, Section 9-2.335, Public Hearing Procedures to consider the draft development agreement, and to consider public testimony on the proposed agreement, has considered all relevant public comments. SECTION 2. Amendment. Pursuant to Government Code sections 65864 et seq., the City Council does hereby approve and adopt the "Development Agreement (Plaza Banderas Hotel and Mixed Use Project) by and between the City of San Juan Capistrano and Stroscher G3, LLC", which is attached as Exhibit A, and incorporated herein by reference. The Mayor is hereby authorized to execute said agreement on behalf of the City of San Juan Capistrano. 1 ATTACHMENT 1 SECTION 3, Effective Date. This Ordinance shall take effect and be in force thirty (30) days after its passage. SECTION 4. City Clerk's Certification The City Clerk shall certify to the adoption of this Ordinance and cause the same to be posted at the duly designated posting places within the City and published once within fifteen (15) days after passage and adoption as required by law; or, in the alternative, the City Clerk may cause to be published a summary of this Ordinance and a certified copy of the text of this Ordinance shall be posted in the Office of the City Clerk five (5) days prior to the date of adoption of this Ordinance; and, within fifteen (15) days after adoption, the City Clerk shall cause to be published the aforementioned summary and shall post a certified copy of this Ordinance, together with the vote for and against the same, in the Office of the City Clerk. PASSED, APPROVED AND ADOPTED this 30th day of June, 2011. SAM ALLEVATO, MAYOR ATTEST: MARIA MORRIS, CITY CLERK 2 2-24-11 CI'T'Y DRAFT RECORDING REQUESTED BY AND WHEN RECORDED MAIL TO: City Clerk City of San Juan Capistrano 32400 Paseo Adelanto San Juan Capistrano, CA 92675 (Space Above This Line for Recorder's Office:Use Only) (Exempt from Recording fee per Gov.Code§§6103 and 27383) DEVELOPMENT AGREEMENT (PLAZA BANDERAS HOTEL AND MIXED USE PROJECT) by and between CITY OF SAN JUAN CAPIS TRANO and STROSCHER G3, LLC Effective (Ordinance No. adopted , 2011) EXHIBIT A DEVELOPMENT AGREEMENT (PLAZA BANDERAS HOTEL AND MIXED USE PROJECT) This DEVELOPMENT AGREEMENT (PLAZA BANDERAS MOTEL AND MIXED USE PROJECT) (the "Agreement") is dated for reference purposes only as of the day of , 2010, and is being entered into by and between the CITY OF SAN JUAN CAPISTRANO, a municipal corporation, organized and existing under the laws of the State of California("CITY"), and STROSCHER G3, LLC, a California limited liability company ("STROSCHER"), pursuant to the authority of Sections 65864 through 65869.5 of the California Government Code (the "Development Agreement Legislation") and Article XI, Section 2, of the California Constitution. CITY and STROSCHER are sometimes hereinafter referred to as the "Parties." RECITALS This Agreement is predicated upon the following facts: A. These Recitals refer to and utilize certain capitalized terms which are defined in this Agreement. The Parties intend to refer to those definitions in conjunction with the use thereof in these Recitals. B. The Development Agreement Legislation authorizes CITY to enter into binding development agreements with persons having legal or equitable interests in real property for the development of such property in order to, among other things: ensure high quality development in accordance with comprehensive plans; provide certainty in the approval of development projects so as to avoid the waste of resources and the escalation in the cost of housing and other development to the consumer; provide assurance to the applicants for development projects that they may proceed with, their projects in accordance with existing policies, rules, and regulations, subject to the applicable conditions of approval, in order to strengthen the public planning process and encourage private participation in comprehensive planning and reduce the private and public economic costs of. development; and encourage and provide for the development of public infrastructure and amenities to support the development of new housing and commercial projects. C. STROSCHER is the fee owner of that certain real property consisting of 3.18 acres of land located at the corner of Ortega Highway and El Camino Real in the City of San Juan Capistrano, County of Orange, State of California, that is more particularly described and depicted in Exhibit "A" attached hereto and made a part hereof{the "Property"). D. The Property consists of 3.18 acres, with a three-story, 124-room hotel, consisting of 70,363 square feet ("Hotel") on approximately 2 acres; 10,169 square feet two story office/retail building consisting of 6,467 square feet of retail on the first floor ("Retail Component") and 3,702 square feet of private office on the second floor (the "Private Office Space") ; 6,095 square feet for a restaurant ("Restaurant") and 190 parking spaces (the Hotel, Retail Component, the Private Office Space, Restaurant and parking spaces are collectively, the "Project"). E. In connection with approval of the Project, STROSCHER applied for, and CITY approved, General Plan Amendment 10-001; Rezone 10-001; Architectural Control 10-002; Grading Plan Modification 10-001; Tree Removal Permit 10-003; Floodplain Land Use Permit 10-001; and Tentative Parcel Map 10-001 (collectively, the "Development Platt Approvals"), in accordance with -I- the provisions of this Agreement, and other applicable regulations of the CITY and other governmental agencies having jurisdiction over the Property and the "Project" as defined in Section 1.24 below. F. STROSCHER has applied for, and CITY has approved,this Agreement in order to create a beneficial development project and a physical environment that will conform to and complement the goals of CITY, be sensitive to human needs and values, and facilitate efficient traffic circulation. By its approval and execution of this Agreement CITY has determined that CITY (including, without limitation the existing and future residents of CITY) will receive the following direct and indirect benefits from the implementation of this Agreement: I. The Project will conform to CITY's goal to manage growth through the use of among other things, comprehensive planning and design, project-wide continuity of landscaping and architectural design, state-of-the-art development standards, and planning concepts. 2. The traffic and circulation elements of the Development Plan will conform to CITY's General Plan by reducing the impact of the average daily trips generated by the Development of the Project on arterial roads and thoroughfares adjacent to the Expansion Parcels consistent with Transportation and Traffic Mitigation Measures set forth in the Mitigation Monitoring and Reporting Program ("MMRP") for the Project. 3. Dedication to CITY of an easement interest in the air space over a portion of the Property, to be used by the City as a parking lot or parking facility ("Parking Lot Air Space Parcel"), to increase the number of parking spaces available for visitors to the Mission San Juan Capistrano. The Parking Lot Air Space Parcel shall not eliminate any of the Project's parking spaces and improvements to this air space shall not disrupt Development or operation of the Project. A depiction of the Parking Lot Air Space Parcel is attached hereto at Exhibit "B"and made a part hereof. 4. Development of the Project will generate significant increases in revenue to the City, through Project generation of Transit Occupancy Tax revenues (San Juan Municipal. Code ("SJMC") Section 3-3.601 et seq.), sales tax revenues and increased property tax revenues. G. The following actions have been taken with respect to this Agreement and the Project: . On or about October 5, 2010, pursuant to the applicable provisions of the California Environmental Quality Act, Public Resources Code Section 21000 et seq., and the regulations promulgated by the Secretary of Resources pursuant thereto (Title 14 of the California Code of Regulations, Section 15000 et seq.) (collectively, "CEQA"), the City Council of CITY found and determined that all of the significant environmental impacts of the Project, including this Agreement, were adequately mitigated and adopted an Environmental Impact Report; 2. On or about September 14, 2010, following three duly noticed and conducted public hearings, the Planning Commission of CITY took action on the Project; -2- 3. On or about October 5, 2010,. the City Council of CITY approved the Development PIan Approvals; 4. On or about , 2011, after a duly noticed and conducted public hearing, the City Council of CITY detennined that the provisions of this Agreement were consistent with the General Plan of CITY; 5. On or about , 2011, pursuant to CEQA, the CITY Council of CITY found and determined that the previously certified Environmental Impact Report for the Project adequately describes the Agreement's environmental setting, impacts and alternatives and mitigation measures related to each significant impact; and 5. On or about , 2011, after a duly noticed and conducted public hearing, the City Council of CITY introduced Ordinance No. approving and authorizing the execution of this Agreement and on , 2011, the City Council of CITY adopted said Ordinance (hereinafter the "Authorizing Ordinance"), a copy of which Authorizing Ordinance is on file in the City Clerk's office at City Hall. H. In consideration of the substantial public improvements and benefits to be provided by STROSCHER and the Project, and in order to strengthen. the public planning process and provide significant educational and economic benefits to the City of San Juan community, by this Agreement CITY intends to provide to STROSCHER the assurance that it can proceed with Development of the Project for the Term of this Agreement pursuant to the terms and conditions of this Agreement and in accordance with the CITY's General Plan, ordinances, policies, rules, and regulations existing as of the Effective Date. In reliance on CITY's covenants in this Agreement concerning Development of the Property, STROSCHER has and will in the future incur substantial costs in site preparation and the construction and installation of major infrastructure and facilities in order to make the Master Plan feasible. I. Pursuant to Section 65867,5 of the Development Agreement Legislation, the City Council has found and determined that:. (i) this Agreement and the Development Plan for the Project implement the goals and policies of CITY's General Plan, provide balanced and diversified land uses and impose appropriate standards and requirements with respect to land development and usage in. order to maintain the overall quality of life and the environment within the City of San Juan Capistrano, (ii) this Agreement is in the best interests of and not detrimental to the public health, safety, and general welfare of CITY and its residents; (iii) adopting this Agreement inconsistent with CITY's General Plan and constitutes a present exercise of CITY's police power; and (iv) this Agreement is being entered into pursuant to and in compliance with the requirements of Section 65867 of the Development Agreement Legislation. J. CITY and STROSCHER agree that it may be beneficial to enter into additional agreements and operating memoranda, or to modify this Agreement with respect to the implementation of the separate components of the Development Plan when more information concerning the details of each component is available, and that this Agreement should expressly allow for such contemplated additional agreements, operating memoranda, and modifications to this Agreement. -3- K. Project Mitigation Measure MM 4.11.201b and Project Condition of Approval No. 48 require STROSCHER to construct a loop system to run from a POC in the 350C system at the intersection of EI Homo and the I-5 Freeway ("El Homo Section") to a connection to the 350C system at the intersection of Ortega Highway and Avenida Los Cerritos ("Ortega Section"). Compliance of these conditions maybe resolved as follows: 1. During the future reconstruction of the Ortega Bridge over the I-5, CITY has requested Caltrans to provide for the water interconnect required to create the Ortega Section loop. Should the El Homo Section provide sufficient fire flow as determined by the Fire Marshall, STROSCHER shall not be required to construct the Ortega Section. Prior to the time the Ortega Section is to be constructed, STROSCHER and CITY may reconsider STROSCHER's fair share for the cost of construction and/or the Parties may enter into a reimbursement agreement to specify STROSCHER's fair share and reimbursement should new development be proposed, which would benefit from the Ortega Section construction. City will waive this requirement in the event that grant funding becomes available to fund the construction of the Ortega Section. 2. STROSCHER shall construct the El Homo Section to provide sufficient fire flow to the Property as determined by the fire marshall. STROSCHER and CITY may reconsider STROSCHER's fair share for the cost of construction should new development be proposed, which would benefit from the EI Homo Section construction. The Parties may further enter into a reimbursement agreement to specify STROSCHER's fair share and reimbursement should new development be proposed, which would benefit from the EI Homo Section construction. City will waive this requirement in the event that grant funding becomes available to fund the construction of the Ortega Section. 3. Subject to exercising its legislative discretion, the CITY shall consider the creation of a utility district to fund the undergrounding of power lines along El Camino Real ("Undergrounding of Power Lines"). L. CITY agrees, subject to exercising its legislative discretion, to assist STROSCHER in. its attempts to have Caltrans reconstruct the entryway to the Project, which may be required due to the future relocation and expansion of Ortega Highway by Caltrans. CITY's assistance to STROSCHER shall not include the provision of any financial assistance, unless CITY, in its sole discretion, determines to provide financial assistance. M. The Stroscher Family previously conveyed to the County of Orange rights-of-way which were to be used in the construction of the Ortega Highway. Ultimately, the City succeeded to the interest of the County of Orange, and presently owns the rights-of-way, which no longer are needed for future improvement of the Ortega Highway ("Excess Ortega Rights-of-Way"). The Excess Ortega Rights-of-Way are depicted on Exhibit "C" attached hereto and made a part hereof. AGREEMENT NOW, THEREFORE, pursuant to the authority contained in the Development Agreement Legislation, as it applies to CITY, pursuant to Article XI, Section 2 of the California Constitution, and in consideration of the foregoing recitals of fact, all of which are expressly incorporated into this Agreement, the mutual covenants set forth in this Agreement, and for the further consideration described in this Agreement, the Parties agree as follows: -4- I. Definitions. The following words and phrases are used as defined terms throughout this Agreement and each defined term shall have the meaning set forth below: 1.1 Authorizing Ordinance. "Authorizing Ordinance" means Ordinance No. approving this Agreement. 1.2 CT-QA, "CEQA" has the meaning ascribed to that tenn in Recital F.1 of this Agreement. 1.3 CITY. "CITY" means the City of San Juan Capistrano, a California municipal corporation, duly organized and existing under the Constitution and laws of the State of California, and all of its officials, employees, agencies, and departments. IA City Council. "City Council" means the duly elected and constituted city council of CITY. 1.5 Default. "Default" has the meaning ascribed in Section 9.1 or 9.2 of this Agreement, as applicable. 1,6 Develops Development or Developing. "Develop," "Development" or "Developing" means the improvement and use of the Property, as the term "Development" is defined in California Government Code Section 65927, for purposes consistent with the Project and this Agreement, all in accordance with the provisions of this Agreement, but does not include the maintenance, repair, reconstruction, or redevelopment of any building, structure, improvement, or facility after the initial construction and completion thereof. 1.7 Developer. Developer means Stroscher G3, LLC, all successors in interest, in whole or part, to the right, title, and interest of any of such entity in and to this Agreement with respect to all or any portion of the Property. 1.8 ' Development Agreement Legislation. "Development Agreement Legislation" means Sections 65864 through 65569.5 of the California Government Code as it exists on the Effective Date. 1.9 Development Exactions. "Development Exactions" means any requirement of CITY in connection with the Existing or Subsequent Land Use Regulations or Development Plan Approvals, for the dedication of land (including without limitation through the encumbrance of land with an easement or use restriction), the construction or improvement of public improvements or facilities (including without limitation improvements or facilities located on land that is encumbered with an easement or use restriction in favor of a public agency, the public, or a private non-profit entity), or the formation of any Financing District and/or payment of any special taxes, assessments, or fees, in order to provide any such public improvements or facilities in conjunction with Development or to lessen, offset, mitigate, or compensate for the impacts of development on the environment or other public interests consistent with the Project and this Agreement. 1.10 Development Impact Fees. "Development Impact Fees" shall mean those fees established and adopted by CITY with respect to development and its impacts pursuant to applicable -5- governmental requirements, including Section 66000 et seq., of the California Government Code, including impacts fees, linkage fees, exactions, assessments or fair share charges or other similar impact fees or charges imposed on or in connection with new development by the CITY. Development Impact Fees do not mean or include Processing Fees, The Development Impact Fees are the only Development Impact Fees that the City may impose or levy on the Project. 1.11 Development Plan. "Development flan" means the plan for Developing the Project on the Property in accordance with this Agreement, the Development Plan Approval(s), and the Future Approvals. As of the Effective Date, the Development Plan consists of the Master Plan, provisions of CITY's General Plan (as amended through the General Plan Amendment referred to in Recital E) applicable to the Property, the narrative description of the Project set forth in Exhibit "D" to this Agreement, the Development Plan Approvals set forth in Exhibit "E" to this Agreement, and the express provisions set forth in this Agreement that define or describe the Project. The Future Development Approvals automatically shall become a part of the Development Plan and included within the scope of STROSCHER's vested rights provided for in this Agreement without the need for any amendment of this Agreement when the same are issued or approved by CITY and become effective. Each of the documents memorializing the Development Plan. is (or will be) maintained in the official records of CITY and shall be utilized whenever required to interpret or apply this Agreement. 1.12 Development Plan Approval(s). "Development Plan Approval(s)" means the approvals of the City Council described in .Exhibit "E" hereto insofar as the same relate to the Property and the Development Plan, including those amendments to this Agreement made in. accordance with Section 3.8 hereof, those amendments to the Development Plan Approval(s) made in accordance with Section 3.9 hereof, and those Future Development Approvals made in accordance with Section 3.6 hereof. 1.13 Development Transferee. "Development Transferee" means a person or entity that expressly assumes obligations under this Agreement pursuant to Section 2.5 hereof. 1.14 Discretionary Actions or Discretionary Approvals). "Discretionary Action(s)" or "Discretionary Approval(s)" means an action which requires the exercise of judgment, deliberation or discretion on the part of the CITY including any board, agency, commission or department and any officer of employee thereof, in the process of approving or disapproving a particular activity, as distinguished from an activity which is defined herein as a Ministerial Pen-nit or Ministerial Approval. 1.15 Effective Date. "Effective Date" means the date the Authorizing Ordinance becomes effective. 1.16 Existing. Land Use Regulations. "Existing Land Use Regulations" means all ordinances, laws, resolutions, codes, rules, regulations, policies, requirements, guidelines or other action of CITY, including but not limited to the CITY's General Plan Municipal Code and Zoning Code and including all Development Impact Fees, which affect, govern or apply to the Development and use of the Property, 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, subject to -6- the terms of this Agreement, whether adopted by the City Council or the voters in an initiative, which are in effect on the Effective Date, pursuant to California Government Code Section 65866. 1.17 Future Develo meat A rovals. "Future Development Approvals" means those entitlements and approvals that are: (a) made in accordance with Section 3.6 hereof, and (b) requested by STROSCHER in order to authorize the Development to occur upon the Property in a manner consistent with the Development Plan Approval(s). By way of enumeration, and not limitation of the foregoing, the Future Development Approvals include such development pen-nits, development plan reviews, use permits, variances, grading permits, building permits, and occupancy permits that are required as a condition to STROSCHER's right to Develop pursuant to the Development Approvals for all or any portion of the Project. There is no intention to include any approvals that are beyond the implementation of the specific development listed on Exhibit "D" 1.18 Ministerial. Approval(s) or Ministerial Act(s). "Ministerial Approval(s)" or "Ministerial Act(s)" means a permit approval or clearance, conformance with the Existing Land Use Regulations, including, without limitation, conformance maps for tentative tract maps, determinations of compliance with the Project Conditions of Approval of the Existing Project Approvals, site plans, grading plans, improvement plans, building plans and specifications, and ministerial issuance of one or more final maps, zoning clearances, grading permits, improvement permits, wall permits, building permits, lot line adjustments, encroachment permits, temporary use permits, certificates of use and occupancy, and approvals and entitlements and related matters as necessary for the completion of the Development of the Property as distinguished from an activity which is included in the definition of Discretionary Action or Discretionary Approval. 1.19 On-Site Improvements. "On-Site Improvements" means physical infrastructure improvements or facilities that are or will be located on the Property consistent with the Development Plan Approvals. 1.20 Owner. "Owner" means STROSCHER. 1.21 Party or Parties. "Party" means either CITY or STROSCHER, as the context dictates, and "Parties" means CITY and STROSCHER. 1.22 Planning Cominission. "Planning Commission" means the duly appointed and constituted planning commission of CITY. 1.23 Processines. "Processing Pees" means all fees and charges of every kind and nature imposed by City to cover the estimated actual costs to City of processing applications for Future Development Approvals. 1.24 Project. "Project" means the Development and Approvals summarized in Recital E, the planning elements of which are more specifically described in Exhibit "E"hereto. 1.25 PropertX. "Property" means the Property referred to in Recital C and more particularly described in Exhibit "A"to this Agreement. 1.26 Term. "Term" means the period of time that this Agreement remains in effect with respect to the Property or any portion thereof, as provided in Section 2.3. -7- 2. General Provisions. 2.1. Binding Covenants. The provisions of this Agreement to the extent permitted by law shall constitute covenants which shall run with the Property for the benefit thereof, and the benefits and burdens of this Agreement shall bind and inure to the benefit of the Parties and all successors in interest to the Parties hereto. 2.2 Interest of STROSCHER. As of the date this Agreement is being executed by the Parties, STROSCHER represents that STROSCHER is the fee owner of that certain real property consisting of 3.18 acres of land located at the northwest corner of Ortega Highway and El Camino Real in the City of San Juan Capistrano, County of Orange, State of California, that is more particularly described and depicted in Exhibit "A" attached hereto and made a part hereof (the "Property") 2.3 Term. In addition to the provisions of Section 10.4 of this Agreement, the initial term (hereinafter called "Term") of this Agreement shall commence on the Effective Date and shall terminate at the end of the day immediately preceding the fifth (5`h) anniversary of the Effective Date, subject to the termination provisions set forth herein; provided, however, that so long as STROSCHER is not in Default of this Agreement and the Agreement has not been otherwise terminated, STROSCHER may request CITY to extend the Term for up to three (3) one-year extensions of the Term. City shall have the discretion as to whether to approve or deny any such extension request(s) made by STROSCHER. STROSCHER's request(s) to extend the Term shall be submitted not more than one hundred eighty (180) days and no less than sixty (60) days before the end of the Tenn. Pursuant to California Government Code Sections 65863.9 and 66452.6(a), the expiration date of all Development Plan Approvals shall be extended for the greater of the Term of this Agreement, in which case no such extension application need be filed, or such time approved in accordance with state law or the Existing Land Use Regulations. The Parties agree that phased final subdivision maps may be processed and recorded. 2.4 Termination.. This Agreement shall be deemed terminated and of no further effect upon the occurrence of any of the following events: (i) If termination occurs pursuant to any specific provision of this Agreement; or (ii) As to provisions of this Agreement governing On-Site Improvements on any separate legal lot(s) or parcel(s) within the Property, upon the completion of On-Site Improvements on and with respect to said lot(s) or parcel(s) pursuant to the terms of this Agreement and CITY's issuance of all required occupancy permits or final inspections, as applicable, and acceptance of all dedications and improvements required to complete such On-Site Improvements; or (iii) Entry after all appeals have been exhausted of a final judgment or issuance of a final order directed to CITY invalidating this Agreement. The termination of this Agreement in its entirety or with respect to a particular lot(s) or parcel(s) shall not affect any right or duty of STROSCHER arising from any provisions of this Agreement that remain effective or from a source other than this Agreement. -R- In the event this Agreement terminates in its entirety or with respect to a particular lot(s) or parcel(s), and notwithstanding any other provision set forth herein, upon request by STROSCHER, or any other successor or assignee of either of them, CITY shall cooperate, at no cost to CITY, in executing in recordable form a document prepared by the requesting party that confirms the termination of this Agreement with respect to the Property or applicable portion thereof 2.5 Transfers and Assignments. 2.5.1 STROSCHER ("Owner") shall not assign all or any part of this Agreement without the prior written approval of the CITY. Such written approval by the CITY shall not be unreasonably withheld, provided that: (a) if Owner's proposed assignee is an entity, such entity shall. be legally formed and qualified to conduct business in the State of California; (b) Owner shall have delivered evidence to CITY that Owner's proposed assignee has the ability to comply with the Agreement; (c) Owner and its/their assignee execute an assignment and assumption agreement pursuant to which the assignee expressly assumes all of Owner's obligations under the Agreement; and (d) CITY shall bear no expenses in connection with such assignment. Notwithstanding any other provision of this Agreement, Owner need not obtain the prior written approval of CITY for the assignment of this Agreement to a limited liability company, limited partnership or corporation wholly-owned by, or under Owner's control. 3. Development Provisions. 3.1 Vesting. 3.1.1 Project. CITY covenants STROSCHER has and shall have the; right to Develop the Project on the Property consistent with the Development Plan and the Development Plan Approval(s), including, without limitation, the Future Development Approvals after the same have been issued or approved by CITY and become effective ("vested right"). 3.1.2 Limits on Development. The California Supreme Court held in Pardee Construction Company v. City of Camarillo, 37 Cal.3d 465 (1984), that the failure of the parties to address certain limits on a city's ability to condition, restrict, or regulate a development allowed a later adopted initiative to restrict the development. This Agreement is intended to cure that deficiency by expressly addressing the timing for the Development, the vested rights afforded by this Agreement, and the scope of CITY's reserved authority described in Section 3.2 hereof: Except as expressly set forth in the Development flan and Development Plan Approval(s), regardless of any future enactment, whether by initiative or otherwise, STROSCHER. shall have the vested right to Develop the various components of the Project in such order, at such rate, and at such times as STROSCHER deems appropriate within the exercise of its subjective business judgment. Specifically, CITY agrees that STROSCHER shall be entitled to apply for and receive the Future Development Approvals and to Develop and use the Property at any time, provided that such application is made and such Development occurs in accordance with this Agreement and the other Development Plan Approval(s). No future amendment of any CITY law and no fixture adoption of any CITY law or other action that purports to limit the scope, rate, or timing of Development on the Property or to alter the sequencing of the Development in a manner inconsistent with the Development Plan or the Development Plan Approval(s) (including without limitation the Future Development Approvals when issued by CITY), whether the same are adopted or imposed by the City Council or through the initiative or referendum process, shall apply to the Property. _A_ Notwithstanding the foregoing, nothing in this Section 3.1 shall limit or restrict CITY's reserved authority as described in Section 3.2. 3.1.3 Entitlements, Permits, and Approvals—Cooperation. 3.1.3.1 Processing. CITY agrees that it shall accept and expeditiously process, pursuant to CITY's regular procedures, complete applications for the Future Development Approvals and, if applicable, STROSCHER's complete applications for amendments to this Agreement, to the Development Plan Approval(s), and to any of the Future Development Approvals (after the same have been initially approved). 3.1.3.2 Other Permits. CITY further agrees to reasonably cooperate with. STROSCHER, at no cost to CITY, in securing any County, State, and Federal permits or authorizations which may be required in connection with Development of the Property that are consistent with the Development Plan and Development Plan.Approval(s); provided, that nothing in this Section 3.1.3.2 shall be deemed to require CITY's assumption of any obligations under any said permits or authorizations. 3.1.3.3 Acquisition of Off-Site PropertX. CITY shall not postpone or refuse approval of any Future Development Approval because STROSCHER or a Development Transferee has failed to acquire off-site property required for the construction or installation of offsite improvements. To the extent CITY, STROSCIIER, or a Development Transferee does not have sufficient title or interest to permit any of such offsite improvements that are such entity's responsibility to be constructed or installed at the time the application for a Future Development Approval is processed or approved by CITY, STROSCHER or the Development Transferee shall mare a good faith effort to acquire the required property. If STROSCHER or the Development Transferee is unable to acquire the required property, CITY shall consider in good faith the acquisition of the required property. If CITY is unable to acquire the required property by negotiation or condemnation within the time frame provided for in Government Code Section 66462.5, CITY shall continue to issue the Future Development Approval(s) for the Property despite the fact that the offsite improvement has not been completed. Notwithstanding the foregoing, CITY's obligation to continue to issue the Future Development Approvals as provided for in this Section is contingent upon: (i)STROSCHER or the Development Transferee submitting the improvement plans required for the improvement to CITY; and (ii) consistent with Government Code Section 66462.5, STROSCHER or the Development Transferee entering into a mutually acceptable agreement with CITY that requires STROSCHER or the Development Transferee to pay or reimburse or secure the futuure payment or reimbursement of CITY for STROSCHER's fair share of the costs incurred in acquiring the land and constructing the applicable offsite improvement(s) at such time as CITY acquires the required land. 3.2 Reserved Authority. 3.2.1 Reservation of Authority With Respect to Future Development Approvals, Future Changes in Development Exactions. Notwithstanding any other provision set forth in this Agreement to the contrary, CITY reserves the right after the Effective Date of this Agreement to change the Existing Land Use Regulations applicable to the Property and the Project and to exercise the same degree of discretion and control in its consideration of Future Development Approvals that _in_ it would have in the absence of this Agreement to impose conditions under CEQA and other applicable laws and regulations that apply to all similar development throughout the CITY in order to mitigate the Project's impact on the environment, subject to the following limitations: (i) Although CITY reserves the authority to change its Existing Land Use Regulations, no such future changes in the Existing Land Use Regulations shall apply to the Project, if such future changes in the Existing Land Use Regulation would be inconsistent with the Development Plan, the Project Development Approvals, or any of the provisions of this Agreement, nor shall any such future changes applicable to the Project materially jeopardize or impair the rights of STROSCHER thereunder or materially increase the cost of Developing the Project; (ii) Upon request by STROSCHER., CITY shall provide written support to STROSCHER., if STROSCTIER files a request for waiver or reduction of a Development Exaction imposed by any governmental or quasi-governmental agency, aside from the CITY 3.2.2 Uniform Codes. This Agreement shall not prevent CITY from applying to the Project new uniform construction standards adopted by the Mate of California as State Codes, such as the Uniform Building Code, National Electrical Code, Uniform. Mechanical Code, and Uniform Fire Code, provided those same standards are applied to all other development within the City of San Tuan Capistrano. 3.2.3 State and Federal Laws and Repaulations, STROSCHER shall comply with all applicable state and federal laws and regulations, provided that nothing in this Agreement shall be deemed to limit or restrict the right of STROSCHER to contest or challenge the validity of any such laws or regulations or their applicability to the Property or the Project. In the event that either CITY or STROSCHER determines that a state or federal law or regulation prevents the full implementation of the Development Plan and/or any of the Development Plan Approval(s), that Party shall provide the other Party with written notice of the state or federal law or regulation, a copy of the law or regulation, and a written statement of the conflicts between such state or federal law or regulation and this Agreement. Promptly thereafter CITY and STROSCHER shall meet and confer in good faith in a reasonable attempt to determine whether a modification or suspension of this Agreement is required, provided that each Party reserves its discretion with respect thereto. CITY agrees to cooperate with STROSCHER in. resolving the conflict in a manner which minimizes any adverse fiscal or other impact of the conflict upon STROSCHER, provided only that in no event does CITY agree that in such event it will materially increase its financial obligations set forth in this Agreement or otherwise materially increase its obligations. CITY also agrees to process in a prompt manner STROSCHER's proposed changes to the Development Plan and/or Development Plan Approval(s) as may be necessary to comply with such federal or state law or regulation; provided, however, that the approval of such changes by CITY shall be subject to the discretion of CITY, consistent with this Agreement. 3.2.4 Suspension of Development in Order to Protect Health and Safet . Nothing in this Agreement shall be construed to be in derogation of CITY's police power to suspend the right of STROSCHER to develop all or any portion of the Project in order to protect the public health and safety (e.g., in the event of the unavailability of adequate water, wastewater treatment, or storm drainage facilities). In the event that CITY determines that the public health or safety require a 1 1.. suspension of STROSCHER's right to develop all or any portion of the Project, the scope of the suspension shall be limited to the extent determined by CITY to be reasonably necessary to protect the public health or safety, the term of the suspension shall be limited to the period of time during which the public health or safety concern continues, and CITY shall exercise reasonable good faith efforts to minimize the period of such suspension to the extent that the cause thereof is within CITY's control. As soon as is reasonably practicable after the commencement of an event that results in a suspension. of the rights of STROSCHER to develop hereunder due to public health or safety concerns, CITY shall provide STROSCHER. with written notice of the existence of such event, a detailed explanation of CITY's proposed action, and a written statement of any conflicts with the provisions of this Agreement that require a suspension of any of the terms hereof. Promptly thereafter CITY and STROSCHER shall meet and confer in good faith in a reasonable attempt to determine whether a modification or suspension of this Agreement in whole or in part, is necessary. In such negotiations, CITY and STROSCHER agree to preserve the terms of this Agreement and the rights of STROSCHER as derived from this Agreement to the maximum feasible extent while resolving the conflict. CITY agrees to cooperate with STROSCHER in a good faith reasonable effort to resolve any such conflict in a manner which minimizes any adverse financial or other impact of the conflict upon STROSCHER without materially increasing the obligations of CITY under this Agreement. CITY also agrees in such event to process in an expedited manner STROSCHER's proposed changes to the Development Plan and any previously issued Development Plan Approval(s) as may be necessary to appropriately respond to the public health and safety concern with respect to the portion of the Property owned by STROSCHER; provided, however, that the approval of any such changes by CITY shall be subject to the discretion of CITY, consistent with this Agreement, and no such change shall apply to any other portion of the Property without the prior written consent of the owner(s) thereof. 3.3 Further Assurances to STROSCHER Regarding; Exercise of Reserved Authority. The Parties further acknowledge that the public benefits to be provided by STROSCHER to CITY pursuant to this Agreement are in consideration for and reliance upon assurances that the Property may be developed and used in accordance with the Development Plan and the Development Plan Approval(s). Accordingly, while recognizing that the Development of the Property may be affected by the exercise of the authority and rights reserved and excepted as provided in Sections 3.1 ("Vesting") and 3.2 ("Reserved Authority"), STROSCHER is concerned that normally the judiciary extends to local agencies significant deference in the adoption of rules, regulations, and policies and that in the absence of an express provision set forth in this Agreement such judicial deference might be construed to permit CITY, in violation of the limitations on its reserved authority, to attempt to apply rules, regulations, and policies that are inconsistent with the Development Plan and the Development Plan Approval(s). Accordingly, STROSCHER desires assurances that CITY shall not, and CITY agrees that it shall not, further restrict or limit the Development of the Property in violation of this Agreement except in strict accordance with the reserved authority described in Section 3.2 hereof, which exercising of CITY's reserved authority shall not be considered to be a violation of this Agreement. In this regard, from and after the date that CITY approves the Project, if STROSCHER judicially (including by way of a reference proceeding) challenges CITY's purported exercise of its reserved authority as being in violation of this Agreement, STROSCHER shall bear the burden of alleging that such purported exercise by CITY of its Reserved Authority is inconsistent with the Development Plan or the Development Plan Approval(s) and CITY thereafter shall bear the burden of proof in establishing by a preponderance of the evidence that such exercise of its Reserved Authority is in accordance with and not a violation of this Agreement. 3.4 Vested Right. By entering into this Agreement and relying thereupon, STROSCHER is obtaining certain vested rights to proceed with the Development anticipated by the Development Plan and the Development Approvals and in. accordance with the terms and conditions of this Agreement (as the same may be amended and supplemented from time to time as expressly set forth herein) and the Existing Land Use Regulations. By entering into this Agreement and relying thereupon, CITY is securing certain public benefits which enhance the public health, safety, and welfare. CITY therefore agrees to the following: 3.4.1 No Conflicting Enactments. Except as provided in Section 3.2 of this Agreement, after the Effective Date neither the City Council nor any other agency of CITY shall enact a rule, regulation, ordinance, or other measure (collectively, "law") applicable to the Property which is inconsistent or in conflict with this Agreement. Not by way of limitation of the foregoing, any law, whether by specific reference to this Agreement or otherwise, shall be considered to be inconsistent and in conflict with this Agreement if it has any of the following effects: (i) It limits or reduces the occupancy, density or intensity of the Project as provided for in the Development Plan or the Development Plan Approval(s); or (ii) It imposes Development Exactions on the Property other than those in effect on the Effective Date or as otherwise expressly permitted by Section 3.2.1 of this Agreement. 3.4.2 Consistent Enactments. By way of enumeration and not limitation, the following types of laws shall be considered consistent and not in conflict with this Agreement: (i) Laws that provide for the relocation of structures within the Property pursuant to an application from STROSCHER; and (ii) Any law that is expressly authorized by this Agreement. 3.4.3 Initiative Measures. In accordance with state law, in addition to and not in limitation of the foregoing, it is the intent of STItOSCIIER and CITY that no moratorium or other limitation (whether relating to the Development of all or any part of the Property and whether enacted by initiative or otherwise) affecting site development permits, precise plans, site development plans, building permits, occupancy certificates, or other entitlements to use approved, issued, or granted within CITY, or portions of CITY, shall apply to the Property to the extent such moratorium or other limitation would restrict STROSCHER's right to Develop the various elements of the Project on the Property in such order and at such rate as STROSCHER deems appropriate. 3.5 Subsequent CEQA Review. 3.5.1 The EIR. The CITY certifies that the EIR prepared on behalf of the CITY in conjunction with the Project is a complete and accurate document which satisfies all the requirements of the California Environmental Quality Act ("CEQA," California Public Resources Code Section 21000 et seq.) and the State CEQA Guidelines (14 California Code of Regulations 15000 et seq.) with respect to the Project and this Agreement. CITY agrees that no mitigation measures arising out of environmental concerns that are not included in the MMRP for the EIR or this Agreement shall be imposed on the Project except as otherwise provided in this Section. In exercising its legislative discretion to enter into this Agreement and to commit CITY to the completion of the Project, CITY -11- has further reviewed and considered from a variety of perspectives, and has analyzed pursuant to a variety of assumptions, the projected future regional and cumulative environmental demands that will compete with the Project for available capacities and cumulatively add to potential adverse impacts. 3.5.2 Subsequent CE A Review. In accordance with state law, the Parties to this Agreement intend that the EIR fully and adequately addresses all potential adverse environmental impacts from full development of the Project. After consideration of the potential adverse environmental impacts associated with the Project, the CITY has unposed mitigation measures in accordance with CEQA, as specified in the MMRP to the fullest extent the CITY considers feasible and necessary. The CITY has determined that the Development of the Project in the manner contemplated by the Project Approvals and this Agreement will provide the mitigation measures needed to alleviate short-run and long-run potential adverse environmental impacts created by the Project, and that the public benefits to be derived froth the Development of the Project override any potential adverse environmental impacts which may arise from the. Development of the Project. Therefore, the CITY agrees that no subsequent or supplemental EIR shall be required by the CITY for any Subsequent Discretionary Project Approvals implementing the Development of the Project unless required pursuant to California Public Resources Code Section 21166 and Title 14 California Code of Regulations, Section 15162. For purposes of this analysis, the term "new information" does not mean discovery that probabilities of adverse (or beneficial) results considered in the approval of this Agreement, the Existing Project Approvals or the EIR may prove incorrect, or that such probabilities are or are not becoming, or have or have not become, realities; but instead, "new information" requires that the actual quantitative or qualitative extent of the underlying issues were not considered and could not have been considered in the environmental analysis associated with the approval of the Existing Project Approvals,this Agreement and the EIR. 3.6 Subsequent Protect Approvals. 3.6.1Basis for Denying or Conditional Granting Subsequent Project Approvals. The CITY is bound to permit the uses on the Property that are permitted by the Existing Land Use Regulations and the Development Plan Approvals. The CITY agrees to grant and implement all Ministerial Approvals, as long as the Ministerial Approvals comply with the Existing Land Use Regulations, the Agreement, and are consistent with the Development Plan Approvals, including but not limited to, building plans and permits, specifications, reclamation plans, landscape plans, grading plans and permits, and use permits reasonably necessary or desirable to accomplish the goals, objectives, policies and plans described in this Agreement. This Agreement shall not prevent the CITY from denying or conditionally approving any Discretionary Approval on the basis of the Existing Land Use Regulations, subject, however, to the provisions of Sections 3.1 and 3.4 of this Agreement. 3.6.2 Duty to Grant and Implement. Subject to the requirements of state law and the CITY Municipal Code, the CITY's obligation to grant and implement any Ministerial or Discretionary Approvals shall not infringe upon the CITY's right to withhold such Future Development Approvals for failure of the applicable Application to confonn to the Existing Land Use Regulations. If the CITY rejects an application for a Ministerial or Discretionary Approval, it shall provide, in good faith, a specific list of reasons why the application was rejected, along with a description of reasonable measures ("Measures to Correct") to correct each basis for rejection. If Developer resubmits its application incorporating all the Measures to Correct, the CITY shall not unreasonably deny Developer's application. 3.6.3 Processing Obligation . The CITY hereby agrees that it will accept from the Developer for processing and review all applications for Future Development Approvals, in accordance with the Existing Land Use Regulations. To the fullest extent allowed by law, the CITY shall process all applications filed in connection with the Development of the Project as expeditiously as possible and shall complete at the earliest possible time all steps necessary for the implementation of this Development Agreement and the Development of the Project, including, but not limited to, the following: (a) The processing of applications for and the issuance of all Project Approvals requiring the exercise of judgment and deliberation by the CITY, including without limitation,the Subsequent Project Approvals; (b) The retention, upon the Developer's request, of outside plan check consultants, to be selected by CITY, in consultation with STROSCHER, to assist in processing of applications and plans (including infrastructure and storm drain plans), at the Developer's cost, (c) The holding of any required public hearings, and (d) CITY performance of all required inspections called for by Developer within fifteen(15)business days following the request for inspection.by Developer. 3.6.4 Changes in the Project. In accordance with the City Municipal Code, CITY acknowledges that the Developer may in the future desire to change or modify the Project based on precise planning, changes in market demand for aggregate products, changes in development occurring in the vicinity of the Property, or other factors. All such Project revisions shall be subject to the provisions of Subsections 3.5.1, 3.5.2, 3.6.1, 3.6.2 and 3.6.3 of this Agreement. In such event, CITY shall cooperate with Developer to expeditiously review and take final action on. such requested changes in accordance with the Existing Land Use Regulations. No change to the Project which is consistent with the Existing Land Use Regulations shall require an amendment to this Agreement and, in the event any change to the Project proposed by Developer is approved by the CITY, the references in this Agreement to the Project of applicable portion thereof shall be deemed to refer to the Project as so changed. 3.7 Development Impact Fees. Notwithstanding anything to the contrary in this Agreement, and subject to the provisions of Section 3.7.1, the only Development Impact Fees that may be applied to the Project, Developer or Property in connection with the.Project shall be those existing on the Entry Date. Development Impact Fees shall be paid at the fee rate in effect at the time when payment for such fees is due and payable, for the portion of the Property to which such fees apply. 3.7.1 Applicability of Tgnporary Reductions in Development Impact Fees,. On July 20, 2010, the City Council adopted Resolution No. 10-7-20-01, mandating a seventy-five percent (75%) reduction in sewer, traffic, and water Development Impact Fees for hotels and vehicle dealerships from the rate otherwise applicable for commercial/industrial uses (collectively, the "Decreased Impact Fees"). Notwithstanding the July 31, 2011 expiration date of Resolution No. 10- 07-20-01, the Project shall be subject to the Decreased Impact Fees, as long as the first building permit for construction of the hotel building is issued on or before the second (2`ld) anniversary of the Effective Date. If the first building permit for construction of the hotel building is issued after the second (2"d) anniversary of the Effective Date and before the third (3`d) anniversary of the Effective Date, then the Project shall qualify for a fifty percent (50%) reduction in sewer, traffic and water Development Impact Fees. If the first building permit for construction of the hotel building is issued after the third (3'd) anniversary of the Effective Date and before the fourth (4"') anniversary of the Effective Date, then the Project shall qualify for a fifty percent (25%) reduction in sewer, traffic and water Development Impact Fees. No reduction will be available after the fourth (41h) anniversary of the Effective Date. Pursuant to Resolution No. 10-7-20-01, the Decreased Impact Fees shall apply to the hotel portion of the Project. Furthermore, the parties agree that if the expiration date of Resolution 10-7-20-01 is extended or a similar fee reduction program is established which provides lower fees than those stipulated to herein, the lower fee program shall apply. 3.7.2 Developer's Right to Contest Increases in Development Impact Fees. Nothing in this Agreement shall prevent Developer from contesting, in any appropriate forum, the imposition or the amount of any new Processing Fees or any increase in the Development Impact Fees. Such right of protest shall not extend to the current amount of any Development Impact Fees or Processing Fees in effect as of the Entry Date of this Agreement, and the Developer hereby agrees to pay the same pursuant to the terms of this Agreement and the CITY's normal fee payment schedule. Notwithstanding any pending contest of such fees, CITY shall proceed with issuance of all required Project Approvals and shall not withhold or delay issuance of those Project Approvals based upon any pending protest or appeal with respect to such fee. 3.8 Amendment of Development Agreement. 3.8.1 Initiation of Amendment. Any Party may propose an amendment to this Agreement, and all Parties agree that it may be beneficial to enter into additional written agreements or modifications of this Agreement in connection with the Development of the separate components of the Development Plan. Notwithstanding any provision of this Agreement to the contrary, no amendment to the Development Plan or to any conditions of approval contained therein shall require an amendment of this Agreement. 3.8.2 Procedure. Except as set forth in Section 3.8.4 below, the procedure for proposing and adopting an amendment to this Agreement shall be the same as the procedure required for entering into this Agreement in the first instance. 3.8.3 Consent. Except as expressly provided in this Agreement, any amendment to this Agreement shall require the written consent of all affected Parties. An amendment to this Agreement shall not be deemed to affect a portion of the Property if it does not alter, jeopardize, or impair the rights and does not increase the obligations of STROSCHER that owns said portion of the Property. No amendment to all or any provision of this Agreement shall be effective unless set forth in writing and signed by duly authorized representatives of each of the affected Parties. 3.8.4 Operating Memoranda. The Parties acknowledge that refinements and further development of the Development Plan may demonstrate that changes are appropriate with respect to the details and performance of the Parties under this Agreement. The Parties desire to retain a certain degree of flexibility with respect to the details. of the Development Plan and with respect to those items covered in general terms under this Agreement. If and when the Parties mutually find that changes, adjustments, or clarifications are minor in nature and are appropriate to further the intended purposes of this Agreement, they may, unless otherwise required by law, effectuate such changes, adjustments, or clarifications without amendment to this Agreement through operating memoranda mutually approved by the Parties, which, after execution, shall be attached hereto as addenda and become a part hereof and which may be further changed and amended from time to tir e. The City Manager shall have the authority, on behalf of CITY, to approve and execute such operating memoranda and STROSCHER shall have the authority, on behalf of STROSCHER, to approve and enter into such operating memoranda. Unless otherwise required by law or by the Development Plan Approval(s), no such changes, adjustments, or clarifications shall require prior notice or hearing. 3.9 Future Amendments to Development Plan. Subject to the provisions of Sections 3.5 and 3.6 of this Agreement. The following rules apply to future amendments to the Development Plan: 3.9.1 STROSCHER's Written Consent. Any Development Plan amendment to which STROSCHER does not agree in writing shall not apply to the Property while this Agreement is in effect. 3.9.2 Concurrent Development Agreement Amendment. Any Development Plan amendment requiring amendment of this Agreement shall be processed concurrently with an amendment to this Agreement. 3.9.3 Effect of Amendment. Except as expressly set forth in the Development Plan amendment itself or this Agreement, a Development Plan amendment shall not alter, affect, impair, or otherwise impact the rights, duties, and obligations of the Parties set forth in this Agreement. 4. Miscellaneous Oblizations of the Parties. 4.1 STROSCHER's Obligations. 4.1.1 Project Conformance with CITY Policies and Its General Plan. The Project shall conform to CITY's goal to manage growth through the use of, among other things, comprehensive planning and design, project-wide continuity of landscaping and architectural design, state-of--the-art development standards, and planning concepts. The traffic and circulation elements of the Development Plan will conform to CITY's General Plan. 4.1.2 Dedication of Easement Interest for Parking Lot Air Space Parcel. As depicted in Exhibit "B", prior to approval of a final map for the Property, STROSCHER shall dedicate to the CITY, an easement interest in the Parking Lot Air Space Parcel. If the CITY does not accept this dedication before this Agreement expires, then the CITY agrees that the Parking Lot Air Space Parcel will revert to STROSCHER. In no. event shall dedication of the easement interest of the Parking Lot Air Space Parcel eliminate any of the Project's parking spaces, and future improvements in this air space shall not disrupt the Development or operation of the Project. 4.1.3 Water System Upgrade. Project Mitigation Measure MM 4.11.201b and Project Condition of Approval No. 48 require STROSCHER to construct a loop system to run from a POC in the 350C system at the intersection of El Homo and the 1-5 Freeway ("El Homo Section") to _17- a connection to the 350C system at the intersection of Ortega Highway and Avenida Los Cerritos ("Ortega Section"). Compliance of these conditions may be resolved as follows: a. During the future reconstruction of the Ortega Bridge over the 1-5, CITY has requested Caltrans to provide for the water interconnect required to create the Ortega Section loop. Should the El Homo Section.provide sufficient fire flow as determined by the fire marshall, STROSCHER shall not be required to construct the Ortega Section. Prior to the time the Ortega Section is to be constructed, STROSCHER and CITY may reconsider STROSCHER's fair share for the cost of construction and/or the Parties may enter into a reimbursement agreement to specify STROSCHER's fair share and reimbursement should new development be proposed, which would benefit from the Ortega Section construction. City will waive this requirement in the event that grant funding becomes available to fund the construction of the Ortega Section. b. STROSCHER shall construct the El Homo Section to provide sufficient fire flow to the Property as determined by the fire marshall. STROSCHER and CITY may reconsider STROSCHER's fair share for the cost of construction should new development be proposed, which would benefit froze. the El Homo Section construction.. The Parties may further enter into a reimbursement agreement to specify STROSCHER's fair share and reimbursement should new development be proposed, which would benefit from the El Homo Section construction. City will waive this requirement in the event that grant funding becomes available to fund the construction of the Ortega Section. 4.2 CITY's Obligations. 4.2.1 Undergrounding of Power Lines. Subject to exercising its legislative discretion, CITY shall consider the creation of a utility district ("Utility District") to fund the Undergrounding of Power Lines. Regardless of when the Utility District is formed, the Utility District shall be responsible for funding, designing, and constructing the Undergrounding of Power Lines. STROSCHER shall support creation of a Utility District, and agrees to have the Property subject to assessment, if such a district is formed by CITY. In such a situation, STROSCHER shall be deemed to have satisfied Project Condition of Approval No. 118. If formed, the Utility District shall consist of additional benefitted properties, in addition to the Property. If CITY has not created the Utility District, and not unposed the assessment on relevant properties in the area, including the Property, before issuance of the first (1St) certificate of occupancy for the Project, CITY agrees that STROSCHER shall have no obligation to Underground the Power Lines, and STROSCHER shall.not be required to comply with Project Condition of Approval No. 118. If CITY forms and funds the Utility District after the issuance of the first (1") certificate of occupancy, STROSCHER shall support creation of the Utility District and agrees to have the Property subject to assessment, if such district is formed by the CITY. If CITY or the Utility District elects to Underground the Power Lines, STROSCHER agrees to provide CITY or Utility District with a temporary construction easement, with the terms of such easement to be mutually agreed upon by the Parties, to allow the undergrounding of the lines to occur. 4.2.2 Reconstruction of Project Entryway. Subject to exercising its legislative discretion, CITY agrees to assist STROSCHER in its attempts to have Caltrans reconstruct the Project entryway; due to the future relocation and expansion of Ortega Highway. CITY's assistance to STROSCHER shall not include any financial assistance unless CITY, in its sole discretion, determines to provide financial assistance. -1 R- 4.2.3 Reversion of Portions of the Ortega Highway Ri lits-of=-Wa . Subject to exercising of its legislative discretion., CITY agrees to undertake all reasonable good faith efforts to reconvey to STROSCHER the Excess Ortega Rights-of-Way. 5. Indemnification. Except to the extent of the gross negligence or willful misconduct of CITY and its agents, officers, contractors, attorneys, and employees (the "Indemnified Parties"), STROSCHER, and with respect to the portion of the Property transferred to there, the Development Transferee agree: to indemnify, defend, and hold harmless the Indemnified Parties from and against each and every claim, action, proceeding, cost, fee, legal cost, damage, award or liability of any nature arising from alleged damages caused to third parties and alleging that CITY is liable therefor as a direct or indirect result of CITY's approval of or performance under this Agreement. The duties of STROSCHER under this Section 5 are solely subject to and conditioned upon the Indemnified Parties' written request to STROSCHER to defend and/or indemnify CITY. Without in any way limiting the provisions of this Section 5, the Parties hereto agree that this Section 5 shall be interpreted in accordance with the provisions of California Civil Code Section 2778 in effect as of the Effective Date. 6. Relationship of Parties. The contractual relationship between CITY and STROSCHER is such that STROSCHER is an independent contractor and not an agent or employee of CITY. CITY and STROSCHER hereby renounce the existence of any form of joint venture or partnership between therm., and agree that nothing contained in this Agreement or in any document executed in connection with the Property shall be construed as making CITY and STROSCHER joint venturers or partners. 7. Amendment or Cancellation of Agreement. This Agreement may be amended or canceled in whole or in part only by mutual consent of the Parties in the manner provided for in Government Code Section 65868. No amendment or modification of this Agreement or any provision hereof shall be effective unless set forth in writing and signed by duly authorized representatives of each Party hereto. This provision shall not limit any Party's remedies as provided by Section 9. 8. Periodic Review of Compliance with Agreement. 8.1 Periodic Review. CITY and STROSCHER shall review this Agreement at least once every 12-month period from the date this Agreement is executed, in September or such other month as the CITY may notify STROSCHER. CITY shall notify STROSCHER in writing of the date for review at least thirty (30) days prior thereto. Such periodic review shall be conducted in accordance with Government Code Section 65865.1. 8.2 Good Faith Compliance. During each periodic review, STROSCHER shall be required to demonstrate good faith compliance with the terms of this Agreement. STROSCHER agrees to furnish such reasonable evidence of good faith compliance as CITY, in the exercise of its reasonable discretion, may require. If requested by STROSCHER, CITY agrees to provide to STROSCHER a certificate that STROSCHER or its Development Transferee is in compliance with -10- the teens of this Agreement, provided STROSCHER reimburses CITY for all actual and direct costs and fees incurred by CITY with respect thereto. If CITY fails to undertake the annual review process specified in Section 8.1 of this Agreement, STROSCHER shall be deemed to be in full compliance with the Agreement, and the Agreement shall be deemed to be in full force and effect. 8.3 Failure to Conduct Annual Review. The failure of CITY to conduct the annual review shall not be a Default by STROSCHER, nor shall any such failure alter, suspend, or terminate any of the Parties' other rights and obligations hereunder. Aside from the provisions of Section 8.2 of this Agreement, STROSCHER. shall not be entitled to any remedy for a failure by CITY to conduct this annual review. 8.4 Initiation of Review by City Council. In addition to the annual review, the City Council may at any time initiate a review of this Agreement by giving written notice to STROSCHER. Within thirty (30) days following receipt of such notice, STROSCHER shall submit evidence to the City Council of STROSCHER's good faith compliance with this Agreement and such review and determination shall proceed in the same manner as is provided in Sections 8.I and 8.2 and the Development Agreement Legislation for the annual review. The City Council shall initiate its review pursuant to this Section 8.4 only if it has probable cause to believe CITY's general health, safety, or welfare is at risk as a result of specific acts or failures to act by STROSCHER. 8.5 Administration of Agreement. Any final decision by the CITY's staff concerning the interpretation and administration of this Agreement and Development of the Property in accordance herewith may be appealed by STROSCHER to the City Council, provided that any such appeal shall be filed with the City Clerk within ten (10) days after STROSCHER receives written notice that the staff decision is final. The City Council shall render, at a noticed public hearing, its decision to affirm, reverse, or modify the staff decision within thirty(30) days after the appeal is so filed. 8.6 Availability of Documents. If requested by STROSCHER, CITY agrees to provide to STROSCHER copies of any documents, reports, or other items reviewed, accumulated, or prepared by or for CITY in connection with any periodic compliance review by CITY, provided STROSCHER reimburses CITY for all reasonable and direct costs and fees incurred by CITY with respect thereto. CITY shall respond to STROSCHER's request on or before ten (10) business days have elapsed from. CITY's receipt of such request. 9. Events of Default: Remedies and Termination. 9.1 Defaults by STROSCHER.. If CITY determines on the basis of a preponderance of the evidence that STROSCHER has not complied in good faith with the terms and conditions of this Agreement, CITY may, by written notice to STROSCHER, specify the manner in which STROSCHER has failed to so comply and state the steps STROSCHER must take to bring itself into compliance. If, within. sixty (60) days after the effective date of notice from CITY specifying the manner in which STROSCHER has failed to so comply, STROSCHER does not commence all steps reasonably necessary to bring itself into compliance as required and thereafter diligently pursue such steps to completion, then STROSCHER shall be deemed to be in default under the terms of this Agreement (a "Default"). In such event, CITY may terminate this Agreement pursuant to Government Code Section 65865.1 with respect to the Property. In material event of Default by STROSCHER, except as provided in Section 9.3, CITY's sole remedy for any breach of this Section 9.1 shall be CITY's right to terminate this Agreement. 9.2 Defaults by CITY. If STROSCHER determines on the basis of a preponderance of the evidence that CITY has not complied in good faith with the terms and conditions of this Agreement, STROSCHER may, by written notice to CITY, specify the manner in which CITY has failed to so comply and state the steps CITY must take to bring itself into compliance. If, within sixty (60) days after the effective date of notice from STROSCHER specifying the manner in which CITY has failed to so comply, CITY does not commence all steps reasonably necessary to bring itself into compliance as required and thereafter diligently pursue such steps to completion, then CITY shall be deemed to be in default under the terms of this Agreement (a "Default"). In such event, STROSCHER's sole remedy is to terminate this Agreement with respect to the Property or pursue specific performance as set forth in Section 9.3, 9.3 Specific Performance Remedy. Due to the size, nature, and scope of the Development Plan, it will not be practical or possible to restore the Property to its pre-development condition once implementation of this Agreement has begun. After such implementation, STROSCHER may be foreclosed from other choices they may have had to utilize the Property and. provide for other benefits. STROSCHER has invested significant time and resources and performed extensive planning and processing of the Development Plan and Development Plan Approval(s) in agreeing to the terms of this Agreement and will be investing even more significant time and resources in implementing the Development Plan and Development Plan Approval(s) in reliance upon the terms of this Agreement, and it is not possible to determine the sum of money which would adequately compensate STROSCHER for such efforts. For the above reasons, CITY and STROSCHER agree that damages would not be an adequate remedy if CITY fails to carry out its obligations under this Agreement and that STROSCHER shall have the right to seek and obtain injunctive relief and specific performance as a remedy for any Default by CITY hereunder. CITY and STROSCHER further acknowledge that, if STROSCHER fails to carry out its obligations under this Agreement, CITY shall have the right to refuse to issue any permits or other approvals which STROSCHER otherwise would have been entitled to pursuant to this Agreement that are related to and depend upon STROSCHER's performance hereunder. Therefore, CITY's remedy of specific performance pursuant to Section 9.1, or else the remedy of terminating this Agreement as to the portion of the Property as to which a material breach of Section 9.1 exists shall be sufficient in most circumstances if STROSCHER fails to carry out its obligations hereunder. Notwithstanding the foregoing, if CITY issues a permit or other approval pursuant to this Agreement in reliance (explicitly stated in writing) upon a specified condition being satisfied in the future, and if STROSCHER then fails to satisfy such. condition, CITY shall be entitled to specific performance for the sole purpose of causing STROSCHER to satisfy such condition. CITY's right to specific performance shall be limited to those circumstances set forth above, and CITY shall have no right to seek specific performance to cause STROSCHER to otherwise proceed with the Development of the Property in any manner. 9.4 Institution of Legal Action. Except to the extent a non-Defaulting Party's rights or remedies are Iimited by the express provisions set forth herein, STROSCHER or CITY may institute legal action to cure, correct, or remedy any Default, to enforce any covenants or agreements herein, to. enjoin any threatened or attempted violation hereof, to recover damages for any Default, or to obtain any other remedies consistent with the purpose of this Agreement. Such legal action shall be heard by a reference from the Orange County Superior Court. 9.5 Estoppel Certificates. Any Party or the holder or prospective holder of a mortgage or deed of trust secured by an interest in any portion of the Property (a "holder") may at any time -21- during the Term of this Agreement deliver written notice to the other Party requesting an estoppel certificate (the "Estoppel Certificate") stating: (i) The Agreement is in full force and effect and is a binding obligation of the Parties; (ii) This Agreement has not been amended or modified either orally or in writing or, if so amended, identifying the amendments; (iii) No Default exists hereunder, nor would any Default exist with the passage of time or the giving of notice, or both, or, if a Default or failure does exist, the nature thereof and the actions required to be taken by the non-performing Party to cure the Default or prevent the same from occurring; and (iv) Any other matter affecting the status of the rights and obligations of the Parties hereunder as to which the requesting Party or the holder may inquire. A Party receiving a request for an Estoppel Certificate shall provide a signed certificate to the requesting Party or holder within thirty (30) days after receipt of the request. The City Manager or any person designated by the City Manager may sign Estoppel Certificates on behalf of CITY. An Estoppel Certificate may be relied on by the holder and by Development Transferees. In the event that one Party requests an Estoppel Certificate from another Party of Parties, the requesting Party shall reimburse the other Party or Parties for all actual and direct costs and fees incurred by such Party or Parties with respect thereto. 10. Waivers and Delays. 10.1 No Waiver. Failure by a Party to insist upon the strict performance of any of the provisions of this Agreement by another Party, and failure by a Party to exercise its rights upon a Default by another Party hereto, shall not constitute a waiver of such Party's right to demand strict compliance by such other Party or Parties in the future for the same, similar, or any different Default. 10.2 Third Parties. The Parties' respective performance obligations hereunder shall not be delayed or excused because of any act or failure to act by a third person, except as provided in Section 10.3. 10.3 Force Maieure. Notwithstanding any other provision set forth in this Agreement to the contrary, STROSCHER shall not be deemed to be in Default where failure or delay in performance of any of its obligations under this Agreement is caused by floods, earthquakes, other Acts of God, fires, wars, riots or similar hostilities, strikes and other labor difficulties beyond STROSCHER's control, STROSCHER's inability to obtain required permits or approvals from governmental agencies with jurisdiction over the applicable portions of the Property and the Project, government regulations .(including, without limitation, local, state, and federal environmental and natural resource regulations), voter initiative or referenda, moratoria (including, without limitation, any "development moratorium" as that terin is applied in Government Code Section 66452.6), litigation, or any other causes that are without the fault and beyond the reasonable control of STROSCHER. 10.4 Extensions. In addition to qualifying for a possible extension of the Term of this Agreement, as provided in Section 2.3, the Term of this Agreement and the times for performance by STROSCHER or CITY of any of its obligations hereunder or pursuant to the Development Plan Approval(s) shall be extended by the period of time that any of the events described in Section 10.3 exist and/or prevent performance of such obligations. In addition, the Term shall be extended for delays arising from the following events for a time equal to the duration of each delay which occurs during the Term: (i) The period of time after the Effective Date during which litigation challenging the validity or enforceability of this Agreement or related to the Development Plan Approval(s) or having the actual effect of delaying implementation. of the Development Plan is pending, including litigation pending on the Effective Date. This period shall include any time during which appeals may be filed or are pending; and (ii) Any delay resulting from the acts or omissions of CITY or any other governmental agency or public utility and beyond the reasonable control of STROSCHER. 10.5 Notice of Delay. STROSCHER shall give notice to CITY of any delay which STROSCHER believes to have occurred as a result of the occurrence of any of the events described in Section 10.3. For delays of six months or longer, this notice shall be given within a reasonable time after STROSCHER becomes aware that the delay has lasted six months or more. In no event, however, shall notice of a delay of any length be given later than thirty days after the end of the delay or thirty days before the end of the Term, whichever comes first. I1. Notices, All notices required or provided for under this Agreement shall be in writing and delivered in person or sent by certified mail,postage prepaid, return receipt requested. Notices to CITY shall be addressed as follows: City of San Juan Capistrano 32400 Paseo Adelanto San Juan Capistrano, CA 92675 Attention: City Manager with a copy to: Woodruff, Spradlin & Smart 555 Anton Boulevard, Suite 1200 Costa Mesa, CA 92626 Attention: Omar Sandoval, City Attorney Notices to STROSCHER shall be addressed as follows: Gretchen Stroscher.Thomson Stroscher G3, LLC P,O. Box 129 San Juan Capistrano, CA 92693 Tom Merrell Civic Solutions, Inc. 27362 Calle Arroyo San Tuan Capistrano, CA 92675 with a copy to: Allen Matins Leck Gamble Mallory &Natsis LLP 1940 Main Street, 51' Floor Irvine, CA 92614 Attention: John Condas, Esq. Any notice given as required herein shall be deemed given only if in writing and upon delivery personally or by independent courier service. A Party may change its address for notices by giving notice in writing to the other Parties as required herein and thereafter notices shall be addressed and transmitted to the new address. CITY shall additionally provide written notice of any Default by STROSCHER (including, as applicable, any Development Transferee) and any act or omission by STROSCHER (or such Development Transferee) that would constitute a Default with the passage of time or giving of notice or both, to the holder of any mortgage or deed of trust secured by all or any interest in the Property which (i) delivers a written notice to CITY requesting such notices and (ii) provides CITY with such holder's address(es) for notice purposes. 12. Attorneys' Fees. If legal action is brought by one Party against another Party for breach of this Agreement, including actions derivative from the performance of this Agreement, or to compel performance under this Agreement, the prevailing Parry shall be entitled to an award of its costs, including reasonable attorneys' fees, and shall also be entitled to recover its contribution to the costs of the referee referred to in Section 9.4 above as an item of damage and/or recoverable costs. 13. R,ecordiniz, This Agreement and any amendment or cancellation hereto shall be recorded against the Property at no cost to CITY, in the Official Records of Orange County by the City Clerk within the period required by Section 65868.5 of the Government Code. Notwithstanding the foregoing, in no event shall any failure or delay in recording this Agreement and any amendment to this Agreement limit or restrict the validity or enforceability of this Agreement. 14. Effect of Agreement on Title. 14.1 Effect on Title. The Parties agree that this Agreement shall not continue as an encumbrance against the.Property once the Agreement has terminated. 14.2 Encumbrances and Lenders' Rights. The Parties hereby agree that this Agreement shall not prevent or limit STROSCHER (including without limitation any Development Transferee hereunder), at any time or from time to time in any manner, at its or their sole discretion, from. -24- encumbering the Property, the improvements thereon, or any portion thereof with any mortgage, deed of trust, sale and leaseback arrangement, or other security device. CITY acknowledges that the holder of any such security interest in all or any portion of the Property may require certain clarifications, interpretations, or modifications to this Agreement or the Development Plan and CITY agrees, upon request, from time to time, to meet with the applicable Party and/or representatives of any such holder to negotiate in good faith any such request for clarification, interpretation, or modification. CITY further agrees that it will not unreasonably withhold its consent to any such requested clarification or interpretation to the extent such clarification or interpretation is consistent with the intent and purpose of this Agreement. A Default under this Agreement shall not defeat, render invalid, diminish, or impair the lien of any such holder. The mortgagee of a mortgage or beneficiary of a deed of trust or holder of any other security interest in the Property or any portion thereof and its or their successors and assigns, including without limitation the purchaser at a judicial or non judicial foreclosure sale or a person or entity which obtains title by deed-in-lieu of foreclosure (collectively, a "holder") shall be entitled to receive a copy of any notice of Default (as defined in Section 9.1 hereof) delivered to STROSCHER as to whose portion of the Property such a Default exists and, as a pre-condition to the institution of legal. proceedings or termination proceedings, CITY shall deliver to all such holders written notification of any Default by STROSCHER in.the performance of its obligations under this Agreement which is not cured within sixty (60) days (the "Second Default Notice") and shall allow the holder(s) an opportunity to cure such Defaults as set forth herein. The Second Notice of Default shall specify in detail the alleged Default and the suggested means to cure it. After receipt of the Second Default Notice, each such holder shall have the right, at its sole option, within ninety (90) days to cure such Default or, if such Default cannot reasonably be cured within that ninety (90) day period, to commence to cure such Default, in which case no Default shall exist and CITY shall take no further action. Notwithstanding the foregoing, if such Default shall be a Default which can only be remedied by such holder obtaining possession of the applicable portion of the Property, and such holder seeks to obtain possession, such holder shall have until ninety (90) days after the date obtaining such possession to cure or, if such Default cannot reasonably be cured within such period, then to commence to cure such. Default. Further, a holder shall not be required to cure any non-curable Default of STROSCHER, and any such Default shall be deer ed cured if any lender obtains possession. 15. Severability of Terms. If any term., provision, covenant, or condition of this Agreement shall be determined invalid, void, or unenforceable, the remainder of this Agreement shall not be affected thereby if the tribunal finds that the invalidity was not a material part of consideration for the affected Party or Parties. The covenants contained herein are mutual covenants. The covenants contained herein constitute conditions to the concurrent or subsequent performance by each Party benefited thereby of the covenants to be performed hereunder by such benefited Party. 16. Subsequent Amendment to Authorizing Statute. This Agreement has been entered into in reliance upon the provisions of the Development Agreement Legislation in effect as of the Effective Date. Accordingly, to the extent that subsequent amendments to the Development Agreement Legislation would affect the provisions of this Agreement, such amendments shall not be applicable to this Agreement unless necessary for this Agreement to be enforceable or required by law or unless this Agreement is modified pursuant to the provisions set forth in this Agreement and Government Code Section 65868 as in effect on the Effective Date. 17. Rules of Construction and Miscellaneous Terms. 17.1 Interpretation and Governin Law. The language in all parts of this Agreement shall, in all cases, be construed as a whole and in accordance with its fair meaning. This Agreement and any dispute arising hereunder shall be governed and interpreted in accordance with the internal laws of the State of California, with regard to conflict of laws rules. The Parties understand and agree that this Agreement is not intended to constitute, nor shall be construed to constitute, an impermissible attempt to contract away the legislative and governmental functions of CITY, and in particular, CITY's police powers. In this regard, the Parties understand and agree that this Agreement is a current exercise of CITY's police powers and except as expressly provided for herein this Agreement shall not be deemed to prevent the future exercise by CITY of its lawful governmental powers over the Property. 17.2 Section Headings. All section headings and subheadings are inserted for convenience only and shall not affect any construction or interpretation of this Agreement. 17.3 Gender. The singular includes the plural; the masculine gender includes the feminine.- "shall" is mandatory, "may" is permissive. 17A Time of Essence. Time is of the essence regarding each provision of this Agreement as to which time is an element. 17.5 Recitals. All Recitals set forth herein are incorporated in this Agreement as though fully set forth herein. 17.6 Entire Agreement. This Agreement constitutes the entire agreement between and among the Parties with respect to the subject matter hereof, and this Agreement supersedes all previous negotiations, discussions, and agreements between and among the Parties with respect thereto. 18. Not for Benefit of Third Parties. This Agreement and all provisions hereof are for the exclusive benefit of CITY and STROSCHER and their respective Development Transferees and shall not be construed to benefit or be enforceable by any third party, excepting only to the extent of the limited rights provided to the holders of security interests in all or a portion of the Property. 19. Cooperation in Event of Legal Challenge. CITY agrees to cooperate with STROSCHER as may be needed in order to keep this Agreement in full force and effect during the entire Tenn. In the event of any legal action instituted by a third party or other governmental entity or official challenging the validity or enforceability of any provision of this Agreement or any of the Development Plan Approval(s) (including without limitation any Future Development Approvals after the same have been issued by CITY), the Parties hereby agree to cooperate in defending such action and, in this regard, CITY shall not allow its default to be taken in such legal action or otherwise compromise the legal action without STROSCHER's prior written consent. In the event of any such litigation, to the maximum extent permitted by law this Agreement shall remain in full force and effect while such litigation, including any appellate review, is pending. Notwithstanding the foregoing, STROSCHER shall be responsible for all costs, including but not limited to attorney's fees, costs, expert witness fees, and the like, incurred with respect to any such litigation. IN WITNESS WHEREOF, the Parties hereto have executed this Agreement on the day and year dated below. Dated: , 2011 "CITY" CITY OF SAN JUAN CAPISTRANO, a municipal corporation By: Name: Title: Mayor ATTEST: City Clerk APPROVED AS TO FORM: City Attorney Dated: , 2011 "STROSCHER" STROSCHER G3, LLC, a California limited liability company By: Stroseher Capistrano, LLC, a Delaware limited .liability company Its: Sole Member By: Gretchen Stroscher`l'homson, as Trustee of the Thomson Family Trust a/d/t dated October &, 1990 Its: Authorized Person STATE OF CALIFORNIA ) } ss COUNTY OF ORANGE } On , before me, , a Notary Public, personally appeared 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 rare that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s) or the entity upon behalf of which the person(s) acted, executed the instrument. I declare under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. Witness my hand and official seal. Notary Public [SEAL] STATE OF CALIFORNIA } } ss COUNTY OF ORANGE ) On , before me, , a 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. I declare under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. Witness my hand and official seal. Notary Public [SEAL] EXHIBIT "A" LEGAL DESCRIPTION OF THE STROSCHER PROPERTY Exhibit "A" EXHIBIT "B" DEPICTION AND LEGAL DESCRIPTION OF PARKING LOT AIR SPACE PARCEL F,xh ihi9 "R11 EXHIBIT i,Crr DEPICTION AND LEGAL DESCRIPTIONS OF EXCESS ORTEGA RIGHTS-OF-WAY EXHIBIT "D" NARRATIVE DESCRIPTION OF THE PROJECT Ti' rhihit e�yt EXHIBIT "E" DEVELOPMENT PLAN APPROVALS ® Did not favor a Mayoral Subcommittee, preference in the City Council reviewing all the applications. Preference in the City Council reviewing all applications, and meet under Closed Session in order to pick top candidates and move forward in the process. Requested an update on outsourcing. Council. Action: Moved by Council Member Freese, seconded . by Council Member Taylor, and carried unanimously to continue the item to February 1, 2011. PUBLIC HEARINGS: 1. CONSIDERATION OF A DEVELOPMENT AGREEMENT FOR THE PLAZA BANDERAS HOTEL PROJECT WITH STROSCHER G3, LLC — CONTINUED TO FEBRUARY 15, 2011 (600.30) David Contreras, Senior Planner, provided a staff report, and responded to questions. Nasser Abbaszadeh, Public Works Director; Assistant Fire Marshall Dennis Grubb, Orange County .Fire Authority; and Eric Bauman, Utilities Engineer, responded to questions. Tom Merrell, Civics Solution, presented a PowerPoint presentation on behalf of the applicant. Mayor Allevato opened the public hearing and invited testimony, no public testimony was provided. Council Comments: Felt that project will bring in money to the City, it will stimulate the downtown businesses & will be the cornerstone of the Historic Town Center.Master Plan; preference in extending the 75% reduction of applicable fees; under Section 9 -- 9.2 W- Defaults by City — preference in changing language, as the City might be open to litigation if the City defaults; preference in removing the Water System Upgrade section at this time, and make a decision at a later time once the fair share has been determined. • Concurred that the Water System Upgrade should be addressed separately; shared same concerns as the Planning Commission; understands the importance of having a Rotel, but concerned that the hotel is being built because the City is asking for it, and concerned with the current market being able to sustain the hotel; and not in favor of subsidizing the project or extending the 75% reduction of fees. Felt that the City needs to upgrade its infrastructure; and felt that a Motel would help revive the downtown. 6 1118/2011 ATTACHMENT 2 d Stated that an increase in water flow will be necessary for any future projects in the downtown; in favor of having the option of a parking structure, as more parking spaces might be needed in the future; would like to be able to view Exhibit B "Parking Lot Air Space Parcel"; would like to include in the agreement that the City will not incur additional costs for ground access to the parking structure; and on the Air Space Easement it states that it is for visitors to the Mission San Juan Capistrano, the word Mission should be removed. • Felt that the Hotel will be essential to the City's economic vitality, and hopes that it will be a good investment for the property owner; need to have more information on the Water System Upgrade, and fair share needs to be identified; and not in favor of extending the 75% reduction of fees. Suggested that the City Manager work with staff to develop a fair share analysis with costs broken-down. Council Action: Moved by Council Member Freese, seconded by Council Member Taylor, and carried unanimously to continue the public hearing to February 15, 2011, SAN JUAN CAPISTRANO COMMUNITY REDEVELOPMENT AGENCY (Refer to Agency Agenda) ADMINISTRATIVE ITEMS: G1. CITY MANAGER a. RESOLUTION NO. 11-031-18-03 ADOPTED APPROVING THE EXECUTION BY THE AGENCY OF THE PROMISSORY NOTES FOR THE PURPOSE OF REFINANCING THE EXISTING PROMISSORY NOTES (KINOSHITA ENTERPRISES, L.P. AND BOBBY KINOSHITA INVESTMENT ENTERPRISES, L.P.) 670.20) Public Correspondence: • Jiro Reardon, City resident, submitted an e-mail in January 14, 2011, urging the City Council not to roll-over debt, but instead to repay all of the promissory notes. Cindy Russell, Chief Financial Officer/City Treasurer, provided a staff report and responded to questions. Council Motion: Moved by Council Member Freese, seconded by Council Member Taylor, and carried 4-1 with Council Member Reeve opposed to adopt Resolution No. 11-01-18.03 entitled, "A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SAN JUAN CAPISTRANO, CALIFORNIA, APPROVING THE EXECUTION BY THE CITY OF SAN JUAN CAPISTRANO COMMUNITY REDEVELOPMENT AGENCY OF ITS SAN JUAN CAPISTRANO CENTRAL REDEVELOPMENT PROJECT NON-NEGOTIABLE NOTES, AND MAKING CERTAIN DETERMINATIONS RELATING THERETO", in an aggregate principal amount not to exceed $3,916,450.71 and $4,080,246.64, respectively. 7 1/1812011 NOTICE OF � � " aceaasEe`4e � PUBLIC HEARING neeemtto Ta1bE. �"` 177U 14IF l . CITY OF SAN JUAN CAPIST RA NO NOTICE IS HEREBY GIVEN, that on the 215t day of June, 2011, at 6:00 P.M. in the City Council Chamber, 32400 Paseo Adelanto, San Juan Capistrano, California, the City Council will hold a public hearing on the following: CONSIDERATION OF A DEVELOPMENT AGREEMENT— PLAZA BANDERAS HOTEL Stroscher G3, LLC has requested approval of a Development Agreement for a previously approved mixed-use development that encompasses a 76,363 square foot, 124-room hotel, approximately 16,264 square feet of commercial land uses, including 6,467 square feet of retail commercial floor area, a 6,095 square foot restaurant, and a 3,702 square foot private office on an existing 3.18 acre property located at 26871 & 26891 Ortega Highway and generally located at the northeast corner of Ortega Highway and EI Camino Real (Assessor Parcel Numbers 124-170-12, 14, 15 & 16). The Development Agreement would establish certain rights and responsibilities on the part of the applicant and the City. The project site is General Plan-designated "PC" (Planned Community) and is designated on the Official Zoning Map as "PC" (Planned Community). The entitlements for the subject project have been reviewed in accordance with the California Environmental Quality Act and the City has prepared an EIR which was certified by the City Council on October 5, 2010 and on October 19, 2010. Those desiring to be heard in favor of, or opposition to, this time extension request will be given an opportunity to do so during such hearing. Written information pertaining to this item must be submitted to the City Clerk by 5:00 p.m., on Monday, June 20, 2011, at 32400 Paseo Adelanto, San Juan Capistrano, CA 92675. E-mail correspondence may be sent to: cityclerk(a)-sanjuancapistrano.orq. Individuals desiring to submit late written information at the meeting must orally request such action. For more information, please contact the project mana�,ger, Y avid Contreras, Senior Planner at (949) 443-6320 or by e-mail at dcontreras san`uanca� istra 0o.org. MARIA MCS PIkCfTY CLE K ATTACHMENT 3 Estimate of Proposed Cost Distribution Prepared by City staff DRAFT Development Agreement Estimate of Proposed Cost Distribution Per 219!11 Agmt Per 2/24/11 Agmt DA Line Developers City B Item in Detail Description of Cost Impacted Estimated Estimated 1 Dev city %Dev City Group 219111 General Description Items Cost Cost Paid Dev Share$ Paid City Share Paid Dev Share$ Paid City Share Comments With City assuming cost of Ortega Hwy Water Plan Check and pipeline the PC&I fees are now Fees are not covered 1 4.2.4 Inspection Fees adsorbed by the City. - $67,873 $64,255 0% $J i Pii`'/n $C4,255 0% $0 10()% $64,255 2'24111. With City assuming cost of EI Horno pipeline the PC&t fees are now Fees are not covered 2 42,4 adserbed by fhe City. $57,603 $57,905 31% $57./k2 691X1 $40:121 100% ' $57,905 0% $1,2124!11. 3 Grading Permit fees Not Availa to.lack of info from engr_ TSD 100%TBD 0%TBD 10fl TBD D%TBD Dev Data Req Soils Report review 4 fees Not Available-lack of info from engr. TBD TSD 100%TS C%TE3f7 100%TBD 0%TBD Dev Data Req rontage mprevaMent - 5 a review fees Not Availahle-lack of into from engr. TBD TBD 100%TBD 1%TCDD 10i)%TBD o% rBD Dev Data Req 6 Hydrol6gy Review fees Not Available-lack of info fromengr. TBD TBD 100%TEDC 1.TBD 100%TBD 0%TBDds, Dev Data Req Sewer Plan Check and 7 -n Inspection Fees $2,130 100% $2..130 r,% $0 100% $2,130 0% c 8 Storm drain Plan Fee Not Available-lack of info from engr, Ti TSD 100%TBD 0';78;;1 100%TRD 0%TBDDev Data Req Landscape&Irrigation ii Plan Check and 9 p lrnsoectionFees $8,520 $8,520 100% $8,5217 0% $0 100% $8,520 Q% m Eng.Fees Summary-Exhibit I,pg,23 of 10 WQhhPReport Fee 55 $896 $836 100% $69E G% 10 100% $896 0% $0 - Permits fees incl SM IF and Systems ?1 o' DevetopmenVOrd.211Fees) $220,000 $220,000 160% 5220,000 C/r, $0 100, $220,€)00 Q% $0 't2 U TCAes 641,4G4 $541,444 100% 554`444 0% SU 100% $541,A44 0% $0 13 c Bi3ilding Permit Fees coo fees 41,924 $41,924 100% $41-924 1% $0 100% $41,924 0% $0 14 d Meter Feas Meters for Hotel,Office,&Irrigation 5,984 $5,984 100"%v $5.954 -,% $0 100% $5,9844 Q% $0 Section Suhfotals $944,244'. $943,058' $838,582[ $104,376 $1375,803 ! $54,25 15 Water Development Fee $33,617 $33,617 25!1 58,404 7s-x $25:213 25% $8,404 75% $25,213 16 WaterStorage'Fee $50,425 $50,425 25% $12.606 7515 $37,519 25% $12,606 75% -537,819 17 JuIy2010,Resolution Water Capacity Fee $44,122 $44,122 25% $`1,12,1 757 $33:;192 25% 511,031 75% 533,092 (10-07--20-01)reducing nigation Watertmpact Fee 45,847 $45,647 25°% $11,412 75 r. 534:236 25% 511,412 75% $34,236 18 Certain Development Sewer 201,©00 $2€]1,000 25% $50,251) 76, 5150.750 25% $50,260 75% $450,750 19 Impact Fees by 75% Traffic! -410,.40 $490,444 25% 511 2,61D 75% 5307 BaO 25% $102,810 75% $307,830 213 ater Development Fee $8,892 $8,892 % $8,892. C 0 1 8,892 011. SO 21 Water Storage Fee $10,633 100% $10,633 '?''i, V) 104% 514,633 0% $0 u OfficefRetail and 22 Water Capacity Fee $11,551 $11,551 100% $11.551 0% $0 100% $11,551 0% $0 a Restaurant-not 23 Sewer $2C,776 $20,776 100% $20,775 o $0 164% 520,776 0% $0 covered by Resolution 24 Agricultural Preservation $3,18D $3,180 100% $3,1gD Q $0 100% $3,180 6% $0 25 10-07»20-01 TraffiUCCFP $104,299 $104,299 1 SiE14,29f3 0% $0 100% $104.299 0% $0 26o Drainage mpac;tFees 0 $3,720 100% 113.720 ,'1% $0 100% $3,720 D% $0 2/ ' 28 p Section Subtotals $948,30 $134$,31111 $359,363: $588,93 5359.363€ $58&,R3 r�T DRAFT Development Agreement Estimate of Proposed Cost Distribution Per 219!11 Agmt Per 2/24/11 Agmt # OA tine Developers City E Item in Detail Description of Cost Impacted Estimated Estimated %Dev City %Dev city Y Group 219111 General Description Items Cost Cost Paid Dev Share$ Paid City share Paid Dev Share$ Paid City Share Comments City Responsible for forming a utility 4.2-11 Underground of power district,and eolieclinq tee contribur ions 29 RecitalK Lines. from other benefited properties_ $165,0001 $748,060 50% WA 0Q0 5i)'„ 5374 0N 50% $374,000 50% 3374,600 _ Easernent for The"mutually agreed terms are not 4.2.'=! Underground Power stated and may result in rn-,t%to the 30 Recital Lines City $0 553,$4,,33 100% $63363 0%; $0 50% $26,681 50%1 $26681 4.2.4(42!9 4.1.3.a,b( 31 2124111) EI Homa Water Line EI Horno 12-inch water line. $1,095,261 $891,847 31`o :273,89(3 3 100% $891,847 0% so Dev Fee calc includes Internal Hotn Water - inion)lines for hotel 32 Line $0 $2€33,414 1009; $2934,41 % SO 100%n $203,494 0% So w!El Home tine costs Valuation of EI Horno easement. City obligated to acquire property needed for off site improvements related to Development;up In an including condemnation. Speo5cally an U - easement for the pipeline in EI ver 4124;11 drops o Acquisition of Off site Horno(418I11), The"El Horno easement burden on City to 33 5 3.1.3.3 prop"y referenced dropped 4124111 version. $0 $172,343 31% $52 9211 fig`-Y,. W9:41111 104% 5172343 0% $3 aquire easments. 2 omp ement to participation in V Downtown development. Extend El ver 4!24!11 xfers dev a L 3A none Downtown Line Ext Horno f Ortega Loop sylem. $0 $500,134 31'-: $153_tgt1 69';--; $;1,6,536 0% $0 0!0 $o share costs equitably. Section Subtotals °1,26 22131 52,563,101 $1,11il,242 $1,457,899 51.668,286 $41061 Grand Total $4,46Q,464 $2,309._247 $2,159,213 $2,908,dS1 $'!,053,875 Dev Pain City?atc', Dev Paid Cit Paid 221100 Downtown Redevelcpmum 98006 Plaza Bandems llncrews in Tn3 revenuo 5750,000 $750,7^d1 per year 31% Piz Bnd%of Downtown Redev Yrs to a of Ca Portion;no interest. 2.0 1,4 Years to pay off. ep ace- ment 35 -Protects'4.2.4 Ortega flwy Water Line Ortega Hwy 12-inch water line $895,600 $378,000 0%1 $D 100% 3378.000 0% $0 100% 5378,000 $376,00h€ "$k ". . :3378;OiTtt 39€ .$378:000 2 DRAFT Development Agreement Estimate of Proposed Cost Distribution Per 2/9/11 Agmt Per 2/24/11 Agmt GA Llne Developers City Item in Detail Deschption of Cost Impacted Estimated Estimated %Dev City %Dev City - w Group 219/11 General Description Items Cost Cost Paid Shara$ Paid City Share Paid fDev Share$ Paid City Share Comments Intangible Fees Reflecting Issues to be Clalriiied in the Development Agreement Prohibits the City from imposing any new"Development Exactions"unless expressly,already,included in the DA. No new development This includes"Utility Districts,Financing 36 3.4.1.ii fees Districts,or Special Tax Assessments." $50D.000 0% $0 100• 5500 00( 0% $0 100% $500,000 City Agrees that no new mitigation beyond the MMRP will be required. Assumes MMRf'infatlibia. Makes City liable for unforeseen environmental 37 3.5.1 No new mitigations mitigations. $500,000 01 $U i00% 5504_"N 0% $0 100% $500,004 Revision of Ortega Hwy Transfer of bump remaining after re» 38 RW: The City agrees alignment of Ortega Hwy $b11,691 951/1 a,58t 10 5 11 20,585 951 $581,106 5% $30,585 to undertake all reasonable good faith Transfer of Area 6,adjacent to Ortega 39 efforts to re-convey to Hwy owned by City $611,691 0% $0 100 56 !,b01 0% $0 100% $611,691 4.2.31 Developer the excess Transfer of Area A,adjacent to Spring These costs belong In 40 Recital L Ortega Hwy right ofway Street,Owned ny City. $191,$84 0% 50 100% :S=91,684 0% 50 190% $181,684 tangible section City to pay Developer for losses incurre by the failure to build line within 6 City cbl€gation to months to allow ful[occupancy of all construct El Homo components. E.g.sticks.. Estimated is within 6 months of first the loss of petenlialrevenue for a 6 ver 2124111 drops this 41 4.2.4 building permit. month delay. 53;990,899 0% `c i00% $30% $0 0% $0 requirement, Archeo-Pa ea monitoring is included in - n the Construction costs for facilities m above. This intangible cost could nccur _ a if the construction monitoring finds _ significant Archen-Palen resources,or ver 2/24/11 drops this 42 none Archeo Palee Costs human remains. $560,000 25% 5125."TKI 75 X 5375,000 0% $0 0 so requirement. c m c Section Subtotals $0 $6,9u,965; $706.106 56,339,858! $581,106 S1.833,359