11-0705_STROSCHER G3 LLC_H1_Agenda Report 7/5/2011
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AGENDA REPORT
TO: Karen P. Brust, City Ma,6
FROM: Maria Morris, City Clerk
SUBJECT: Adoption of an Ordinance Approving a Development Agreement for the
Plaza Banderas Hotel Project (Assessor Parcel Numbers 124-170-12, 14,
15 & 16) (Stroscher G3, LLC)
RECOMMENDATION:
By motion, approve the second reading and adoption of an ordinance entitled,
"AN ORDINANCE OF THE CITY OF SAN JUAN CAPISTRANO APPROVING AND
ADOPTING A DEVELOPMENT AGREEMENT FOR THE, PLAZA BANDERAS HOTEL
PROJECT."
SITUATION:
On June 30, 2011, the City Council approved first reading and introduction of an
ordinance approving a Development Agreement for the Plaza Banderas Hotel Project.
The ordinance will go into effect 30 days after its passage.
NOTIFICATION:
The City Clerk's office will provide all necessary publication and posting of the
ordinanc as required by law.
ReSp� tf Ily submitted,
EF
a
ML Mo ris, C
City Clerk
Attachment: 1. Ordinance
ORDINANCE NO. 988
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, and 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 5t" day of July, 2011.
SAM ALI_EVATO, MAYOR
ATTEST:
MARIA MORRIS, CITY CLERK
2 0988
RECORDING REQUESTED BY AND
WHUN,RECORDED MAII, TO:
City Clerk
City of San Juan Capistrano
32400 Paseo Adelanto
San Juan Capistrano, CA 92675
(Space Above This Lane for Recorder's Office Use Only)
(Exempt from Recording Fee per Cmv.Code§§6103 and 27383)
DEVELOPMENT AGREEMENT
(PLAZA BANDERAS HOTEL AND MIXED USE PROJECT)
by and between
CITY OF SAN JUAN CAPISTRANO
and
STROSCHER G3, LLC
Effective August 3, 2011 (Ordinance No. 988 adopted July 5, 2011)
EXHIBIT A
DEVELOPMENT AGREEMENT
(PLAZA BANDERAS HOTEL AND MIXED USE PROJECT)
This DEVELOPMENT AGREEMENT (PLAZA BANDERAS HOTEL AND MIXED USE
PROJECT) (the "Agreement")is dated for reference purposes only as of the 5`h day of Jul , 2011,
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 duality 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
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 (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 Plan Approvals"), in accordance with
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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. STROSCIIER 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:
I. 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 etseq.) (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 t4, 2010, following three duly noticed and conducted
public hearings, the Planning Commission of CITY took action on the Project;
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3. On or about October 5, 2010, the City Council of CITY approved the
Development Plan Approvals;
4. On or about June 30, 2011, after a duly noticed and conducted public hearing,
the City Council of CITY determined that the provisions of this Agreement were consistent
with the General Plan of CITY;
5. On or about June 30, 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 June 30, 2011, after a duly noticed and conducted public hearing,
the City Council of CITY introduced Ordinance No. 988 approving and authorizing the
execution of this Agreement and on_July 5, 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 is consistent 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.
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K. Project Mitigation Measure MM 4.11.201b and Project Condition of Approval No. 48
require STROSC14ER to construct a loop system to run from a POC in the 350C system at the
intersection of El 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"). The
"Ortega Section" to which. the El Homo Section is to comieet includes the water line from a point 200
Foot east of the intersection of Camino Capistrano and Ortega Hwy., then continuing easterly on
Ortega Hwy. to the intersection of Ortega Highway and Avenida Los Cerritos. Compliance of these
conditions may be resolved as follows:
1. 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 marshalI, 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 :how to the
Property as determined by the fire marshail. STROSCIHER and CITY may reconsider
STROSCHER's fair share for the cost of construction should new development be proposed, which
would benefit from 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 Horno Section construction. City will
waive this requirement in the event that grant funding becomes available to fund the construction of
the El Homo 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 OrtegaHighway 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 Txhibit "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,
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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:
1. 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. 988
approving this Agreement.
1.2 CEQA. "CEQA" has the meaning ascribed to that term 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.
1.4 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 Develop, 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 65869.5 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
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Development or to lesson, 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
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 pees. The Development Impact Fees
are the only Development Impact pees that the City may impose or levy on the Project.
1.11 Development Plan. "Development Plan" 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 Discretionar Actions or Discretiona Approval(s
. "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 Permit 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
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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
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 Development Approvals. "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 permits,
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. "Ower" 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 Commission. "Planning Commission" means the duly appointed and
constituted planning commission of CITY.
1.23 ProcessingFees. "Processing Fees" 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.
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1.25 Property. "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.
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 (5t") 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 Terni, 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 Term. 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.
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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 froze a source other than this Agreement.
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 Pian 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 Plan 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 future adoption of
any CITY law or other action that purports to limit the scope, rate, or timing of Development on the
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Property or to alter the sequencing of the Development in a manner inconsistent with the
Development flan 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.
Notwithstanding the foregoing, nothing in this Section 3.l 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, STROSCHF_,R'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 Pro ert CITY shall not postpone or
refuse approval of any Future Development Approval because STROSCHER or a
Development Transferee has failed to acquire offsite property required for the construction or
installation of offsite improvements. To the extent CITY, STROSCHER, 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 make 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 playas 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 future 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.
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3.2 I-,eserved Authorit .
3.2.1 Reservation of Authority. With Refect 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
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 STROSCHER 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 State 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 Regulations. 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
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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 Safety. 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
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 Authorit . 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
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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, STROSCI-IER
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 STROSCHER 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 STROSCHERs 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.
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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
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 CEQA 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 imposed 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 from 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 SubsNuent Project Approvals.
3.6.1 Basis for Den in 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.
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3.6.2 DI t 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 con-form 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 Obligations. 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 Pro'eet. 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
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time when payment for such fees is due and payable, for the portion of the Property to which such
fees apply.
3.7.1 Alicabilit of Temporary Reductions in DevelopmentImpact Fees. 4n
July 24, 2010, the City Council adopted Resolution No. 10-7-20-01, mandating a seventy-five percent
(751/c,) 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 pees, 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 (2"d) anniversary of the Effective Date and before the third (3rd) 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 (3rd) anniversary of the Effective Date and before the fourth (0) 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 (0) 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 Develo er'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 pees 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 A reement.
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.
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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 time. 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 Develo Ment 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 ObR ations 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.
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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 4.1.1.201b 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
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 rnarshall. STROSCHER and CITY may reconsider STROSCHER'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 STROSCHER'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,
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 imposed 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 (V) certificate of occupancy, STROSCHER shall
support creation of the Utility District and agrees to have the Property subject to assessment, if such
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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.
4.2.3 Reversion of Portions of the Ortega Highway Rights-of-Way. 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 CI'T'Y and its agents,
officers, contractors, attorneys, and employees (the "Indemnified Parties"), STROSCHER, and with
respect to the portion of the Property transferred to them, 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 them, 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.
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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
the terms 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
CIIY 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
STROSCBER. 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 8.1 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 A rg eement. 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 Cleric 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.
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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 terrriinate 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
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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 Le al Action. Except to the extent a non-Defaulting Party's rights or
remedies are limited by the express provisions set forth herein, STROSCI-lER 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
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.
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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 Majcure. 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, STR.OSCHER'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 term 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 Plata
Approval(s) or having the actual effect of delaying implementation of the Development Plan
is pending, including litigation pending on theEffective 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.
I L 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
-23-
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 Juan Capistrano, CA 92675
with a copy to:
Allen Matkins Leck. Gamble Mallory &Natsis LLP
1900 Main Street, 5th 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 Party 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.
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13. Retarding.
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
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 deemed cured if any lender obtains
possession.
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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 65858 as in effect on the
Effective Date.
17. Rules of Construction and Miscellaneous Terms.
17.1 Interpretation and Governing 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 Ileadinys. 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.
17.4 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.
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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 Term. 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"
27-
STROSCHER G3, LLC, a California limited liability
company
By: Stroscher Capistrano, LLC, a Delaware limited
liability company
Its: Sole Member
By:
Gretchen Stroscher Thomson, as Trustee
of the Thomson Family Trust uId/t dated
October 8, 1990
Its: Authorized Person
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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 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]
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 trA,f
LEGAL DESCRIPTION OF THE STROSCHER PROPERTY
Exhibit "A"
EXHIBIT "B"
DEPICTION AND LEGAL DESCRIPTION OF
PARKING LOT AIR SPACE PARCEL
Exhibit "B"
EXHIBIT "C"
DEPICTION AND LEGAL DESCRIPTIONS OF
EXCESS ORTEGA RIGHTS-OF-WAY
Exhibit "C"
EXHIBIT "D"
NARRATIVE DESCRIPTION OF THE PROTECT
Exhibit "D"
EXHIBIT "E"
DEVELOPMENT PLAN APPROVALS
Exhibit "E"