05-0802_ADVANCED GROUP 99SJ_H1_Agenda Report8/2/2005
AGENDA REPORT H 1
TO: Dave Adams, City Manager 5&K
FROM: Meg Monahan, City Clerk
SUBJECT: Consideration of an Ordinance Approving and Adopting a Development
Agreement for the San Juan Meadows (Advanced Group SJ-99)(APN 666-311-02, 03 &
04)(TTM 14343)
RECOMMENDATION:
Following reading of the ordinance by title, by motion, adopt the Ordinance entitled:
AN ORDINANCE OF THE CITY OF SAN JUAN CAPISTRANO, CALIFORNIA,
APPROVING AND ADOPTING A DEVELOPMENT AGREEMENT FOR THE
SAN JUAN MEADOWS (ADVANCED GROUP SJ-99)(APN 666-311-02, 03 &
04)(TTM 14343)
SITUATION:
The City Council approved first reading and introduction of the following Ordinance at the
meeting of July 19, 2005.
AN ORDINANCE OF THE CITY OF SAN JUAN CAPISTRANO, CALIFORNIA,
APPROVING AND ADOPTING A DEVELOPMENT AGREEMENT FOR THE
SAN JUAN MEADOWS (ADVANCED GROUP SJ-99)(APN 666-311-02, 03 &
04)(TTM 14343)
One very minor revision has been made to the ordinance concerning Exhibit A-2 to the
development agreement. Exhibit A-2 is Vesting Tentative Tract Map 14343, which is a
large scale document. Wording has been revised so that Vesting Tentative Tract Map
14343 is incorporated into the agreement, by reference, rather than attached to the
agreement.
The Ordinance is presented to the City Council for second reading and adoption. The
Ordinance will go into effect 30 days after it is adopted by the City Council.
FINANCIAL CONSIDERATIONS:
None
Agenda Report
Page 2
NOTIFICATION:
August 2, 2005
The Office of the City Clerk will coordinate the necessary publication and posting of
notices.
RECOMMENDATION:
Following reading of the ordinance by title,
By motion, adopt the Ordinance entitled:
AN ORDINANCE OF THE CITY OF SAN JUAN CAPISTRANO, CALIFORNIA,
APPROVING AND ADOPTING A DEVELOPMENT AGREEMENT FOR THE
SAN JUAN MEADOWS (ADVANCED GROUP SJ-99)(APN 666-311-02, 03 &
04)(TTM 14343)
Respectfully submitted,
City Clerk
ORDINANCE NO.
AN ORDINANCE OF THE CITY OF SAN JUAN CAPISTRANO,
CALIFORNIA, APPROVING AND ADOPTING A DEVELOPMENT
AGREEMENT FOR THE SAN JUAN MEADOWS (ADVANCED GROUP
SJ-99)(APN 666-311-02, 03 & 04)(TTM 14343)
The City Council of the City of San Juan Capistrano hereby ordains as follows:
SECTION 1. Recitals & Findings
1. Advanced Group SJ -99 has requested approval of a Development Agreement
with the City of San Juan Capistrano for an approved tentative tract map on a
135.63 acre parcel located along the south side of La Novia Avenue and 300 feet
east of Valle Road (APN# 666-311-02, 03 & 4); and,
2. On February 17, 1998, the City Council adopted Resolution 98-2-17-3
conditionally approving Revised Tentative Tract Map 14343, San Juan Meadows
for an approved tentative tract map to develop 275 single-family detached (SFD)
lots and 165 affordable senior dwelling units on a 135.63 acre parcel located
along the south side of La Novia Avenue and about 300 feet east of Valle Road;
and,
3. On July 21, 1992 the City Council adopted Resolution 92-7-21-5 certifying a Final
Environmental Impact Report for Tentative Tract Map (TTM) 14343, San Juan
Meadows; and on February 17, 1998, the City Council adopted Resolution 98-2-
17-1 certifying a Mitigated Negative Declaration (MND) for Revised Tentative
Tract Map 14343, San Juan Meadows, and all project -related impacts have been
previously disclosed and adequately mitigated, and the City has otherwise
complied with all applicable provisions of the California Environmental Quality
Act; and,
4. The Planning Commission conducted a duly -noticed public hearing on July 12,
2005 pursuant to the provisions of Section 9-2.335 of the Title 9, Land Use Code,
Administrative Policy 409, and Planning Department Policy 510 to consider
public testimony on the proposed project.
5. The City Council finds that the development agreement is appropriate because of
the public benefits associated with the proposed project and because the closure
of the Old Forster Canyon Landfill and the required landslide stabilization require
State Agency review and necessitating substantial additional processing time;
and,
1
ATTACHMENT
6. The City Council finds that the development agreement is consistent with the
General Plan Growth Management Element because it provides for the orderly
provision of services and infrastructure with new development; and,
SECTION 2. Amendment.
Pursuant to Government Code sections 65864 et seq., the City Council does
hereby approve and adopt the "DEVELOPMENT AGREEMENT" by and between the
City of San Juan Capistrano ("City") and Advanced Group 99SJ, a California limited
partnership, which is attached as Exhibit A, attached hereto. The Mayor is hereby
authorized to execute said agreement on behalf of the City of San Juan Capistrano.
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 2nd day of August, 2005.
WYATT HART, MAYOR
ATTEST:
MARGARET R. MONAHAN, CITY CLERK
pa
Recording Requested By And When Recorded Return to:
Meg Monahan
City Clerk
City of San Juan Capistrano
32400 Paseo Adelanto
San Juan Capistrano, Ca. 92675
[Exempt From Recording Fees-G.C. 6103]
DEVELOPMENT AGREEMENT
This Development Agreement ("Agreement") is made this day of
, 2005, by and between the City of San Juan Capistrano ("City") and
Advanced Group 99SJ, a California limited partnership ("Developer"). The City and Developer
are also referred to as "Parties" and individually as a "Party".
RECITALS
Whereas, Developer owns in fee simple title approximately 135.63 acres of real property
north of the I-5 Freeway surrounding an inactive landfill. The stated parcels are described in
Exhibit A-1 and are collectively referred to herein as the "Subject Property"; and
Whereas, the inactive landfill has not been the subject of a closure plan and presents a
health and safety risk to the citizens of San Juan Capistrano; and
Whereas, the Parties agree that this Agreement will promote and encourage the
development of the Subject Property by providing the Developer, and its successors, assigns, and
lenders, with a greater degree of certainty as to the Developer's ability to complete the Project,
and that the consideration to be received by the City pursuant to this Agreement, including but
not limited to the proper closure of the inactive Forster Canyon Landfill, future extension of
Street "A", and the payment of current fees to the City constitute sufficient consideration to
support the covenants and agreements of the Parties; and
Whereas, City has found that this Agreement and the development of the Subject
Property as provided in this Agreement is consistent with the General Plan of the City; and
Whereas, the City has previously reviewed Vesting Tentative Tract Map (TTM) 14343 in
accordance with the California Environmental Quality Act (1970) and the City Council certified
a Final Environmental Impact Report (EIR) on July 21, 1992 and approved a Mitigated Negative
Declaration (MND) on February 17, 1998. The Environmental Administrator has determined that
all project impacts have been addressed by those actions and no further environmental review is
necessary.
NOW, THEREFORE, City and Developer mutually agree as follows:
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EXHIBIT A
ARTICLE 1. GENERAL PROVISIONS
1.1 Ownership of the Property. The City and Developer acknowledge and agree
that Developer has the requisite legal or equitable interest in the Subject Property, and thus,
Developer is qualified to enter into and be a party to this Agreement in accordance with
Government Code section 65865(b).
1.2 Assignment of Rights. Developer shall be permitted to assign or otherwise
transfer this Agreement, and its rights and obligations hereunder, to any other person, firm or
entity, but only if the prior written consent of the City or the City's delegate is obtained. Such
consent of the City shall not be unreasonably withheld. Notwithstanding any other provisions in
this Agreement, Developer or its successors in interest may assign or otherwise transfer this
Agreement and its rights and obligations hereunder to any entity or entities owned or controlled
either directly or indirectly by Developer (each such entity being a "Permitted Transferee").
Assignments or transfers of the Agreement, or rights or obligations thereunder, to a Permitted
Transferee do not require the prior written consent of the City. As used in this subsection
"owned or controlled by" means an entity in which Developer has either a direct or indirect
equitable or beneficial ownership interest equal to at least 25%. The provisions of this
Agreement shall be binding upon and shall inure to the benefit of the Parties and their respective
successors and assigns. To the extent of the interest of the Developer, and its assigns, in the
Subject Property, the covenants of Developer set forth in this Agreement shall be covenants
running with the land and enforceable to the full extent permitted by applicable law.
1.3 Release Upon Transfer. With respect to any permitted assignment pursuant to
the provisions of Section 1.2, City shall release Developer from its obligations under this
Agreement and any other agreements or undertakings pertaining to the transferred portion of the
Project, and release to Developer any bonds or other security posted to secure obligations under
such agreements or undertakings, provided the transferee expressly assumes the obligations
under such agreements and substitutes bonds or other security acceptable to City in place of the
security to be released.
1.4 Term. Unless otherwise terminated as provided in this Agreement or otherwise
provided, this Agreement shall continue in full force and effect for a period of five (5) years from
its effective date. At Developer's request by written notice to City, City may, at the City's sole
discretion, extend this Agreement for an additional two (2) years if the Closure Plan has not been
approved by the State and the City, provided Developer is not in default under the terns of this
Agreement at the time of the requested extension.
1.5 Termination of Agreement with Respect to Individual Lots Upon Sale to
Public and Completion of Construction. The restrictions on transfers in Section 1.2 shall not
apply to the sale or lease (for a period longer than one year) of any lot which has been finally
subdivided and is individually (and not in "bulk") sold or leased to a member of the public or
other ultimate user. Notwithstanding any other provisions of this Agreement to the contrary, this
Agreement shall automatically terminate with respect to any lot, and such lot shall be released
and no longer be subject to this Agreement without the execution or recordation of any further
document upon satisfaction of both of the following conditions:
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(a) The lot has been finally subdivided and individually (and not in "bulk")
sold or leased (for a period longer than one year) to a member of the public or other ultimate
user; and,
(b) A certificate of occupancy has been issued or the final inspection has been
approved for a building on the lot.
1.6 Exhibits. The following documents are attached to, and by this reference made a
part of, this Agreement:
Exhibit A-1 - Legal Description of the Property
Exhibit A-2 - Vesting Tentative Map 14343 (incorporated by reference)
ARTICLE 2. DEVELOPMENT OF THE PROPERTY
2.1 Vested Right to Develop. Pursuant to Government Code sections 65865.4 and
65866, Developer is obtaining vested rights to develop the Subject Property in accordance with
the General Plan, zoning, rules, regulations, and official policies in force at the time of the
approval of Vesting Tentative Map No. 14343, as vested by Vesting Tentative Map No. 14343,
approved on February 17, 1998, a copy of which is attached as Exhibit A-1, (the "Vesting Map")
and the terms of this Agreement (collectively the "Applicable Land Use Regulations"). Unless
amended or terminated in the manner specified in this Agreement (and subject to the provisions
of this Agreement), Developer shall have the rights and benefits afforded by this Agreement and
this Agreement shall be enforceable by Developer and the City notwithstanding any growth
control measure or any development moratorium adopted after the Execution Date, or any
change in applicable general or specific plans, zoning, or subdivision regulation adopted by the
City which alter or amend the City's General Plan or Zoning Code or effect a change to City
policies that prevent or materially adversely affect development of the Project as contemplated
by this Agreement and the Vesting Map. Developer agrees to comply with all conditions of
approval imposed on the project through City's approval of the Vesting Map except as modified
by this Agreement.
2.2 Permitted Uses. Unless otherwise provided by this Agreement, the land use
rules, regulations and official policies governing the permitted uses of the Subject Property,
governing density, design, improvement, and construction standards and specifications,
applicable to development of the property shall be the Applicable Land Use Regulations.
Pursuant to Government Code section 65866, the City in subsequent land use actions applicable
to the Property may apply new rules, regulations, and policies which do not conflict with the
Applicable Land Use Regulations.
2.3 Future Developer Requested Land Uses Changes. Developer may request but
shall not be entitled to any change, modification, revision or alteration in Applicable Land Use
Regulations. Any change in the Applicable Land Use Regulations shall be subject to review and
approval by the City in accordance with the San Juan Capistrano Municipal Code (the
"Municipal Code") requirements as they relate to modification of such land use entitlement
vff2005-7-12 3
requirements. City and Developer agree that any change in the Applicable Land Use
Regulations approved by City and Developer shall be incorporated into the terms of this
Agreement by and amendment to this Agreement.
2.4 Tentative Tract Map Extension. Pursuant to the provisions of Government
Code Section 66452.6, the Vesting Map and any subsequent tentative subdivision map or
tentative parcel map approved in connection with development of the Subject Property is hereby
granted an extension of time for a period equal to the term of this Agreement. Developer shall
be entitled to record a final subdivision map that is in substantial compliance with the Vesting
Map which final map application is complete and filed prior to the termination of this
Agreement.
2.5 Developer's Obligation to Pay Current Impact and Service Fees. Subject to
any fee credits provided by the terms of the Municipal Code, Developer shall pay to City any
applicable public facilities impact mitigation and service fees in effect at such time as the fees
are due.
2.6 Future Voter Actions. Notwithstanding any other provision of this Agreement
to the contrary, any general plan amendment, zoning ordinance or regulation, or any other law,
policy, or procedure adopted by the voters of the City after the Execution Date of this Agreement
shall not apply, in whole or in part, to the Subject Property, unless such voter approved
amendments expressly further the development of the Subject Property. Additionally, because
the Supreme Court held in Pardee Construction Co. v. City of Camarillo (1984) 37 Cal.3d 465
that the failure of the parties therein to provide for the timing of development permitted a later
enacted ordinance restricting the timing of development, it is the intent of the Developer and the
City to hereby acknowledge and provide a right for the Developer to develop the Project in such
an order and at such rate and time as Developer deems appropriate within the exercise of its sole
and subjective business judgment pursuant to the Applicable Land Use Regulations.
2.7 Reservation of Authority/Exceptions. Notwithstanding any other provision of
this Agreement, the following additional subsequent land use regulations shall apply to the
development of the Subject Property:
(a) Processing fees and charges of every, kind and nature imposed or enacted
by the City to cover the estimated actual costs to the City of processing applications for land use
approvals or for monitoring compliance with applicable land use approvals;
(b) Procedural regulations consistent with this Agreement relating to hearing
bodies, applications, notices, findings, records, hearing, reports, recommendations, appeals and
any other matter of procedure;
(c) Changes adopted by the International Conference of Building Officials, or
other similar body, as part of the then most current versions of the Uniform Building Code,
Uniform Fire Code, Uniform Plumbing Code, Uniform Mechanical Code, National Electrical
Code, or Dangerous Building Code.
ver2005-7-12 4
(d) Regulations that are in conflict with Developer's project provided
Developer has given written consent to the application of such regulations to the Subject
Property.
(e) Federal, state, county, and multi jurisdictional laws and regulations which
the City is required to enforce as against the Subject Property or development of the Subject
Property.
(f) Sewer and water connection fees which would ordinarily be required to be
paid by Developer, subject to the provisions of Section 2.5.
(g) Regulations that do not apply to the development of the Subject Property
but to future potential temporary uses such as temporary use permits.
2.8 Modification or Suspension by Federal, State, County, or Multi -
Jurisdictional law. In the event that federal, state, county, or multi jurisdictional laws or
regulations, enacted after the effective date of this Agreement, prevent or preclude compliance
with one or more of the provisions of this Agreement, such provisions of this Agreement shall be
modified or suspended as may be necessary to comply with such federal, state, county, or multi -
jurisdictional laws or regulations, and this Agreement shall remain in full force and effect to the
extent it is not inconsistent with such laws or regulations and to the extent such laws or
regulations do not render such remaining provision impractical to enforce.
2.9 Additional Developer Requirements. Developer shall comply with the
following provisions:
(a) Final design plans for the following design elements shall be subject to
Design Review Committee review and approval prior to approval of any Final Map:
1. Landscape plans for the La Novia Avenue and Street "A" streetscapes and
for the project entries.
2. Pedestrian pathways connecting the ends of cul-de-sacs to the planned
private park, where feasible.
3. Gate -guarded entry designs including gates, walls, control boxes,
pavement, and related improvements.
4. Landscaping on manufactured slopes in excess of 8'-0" which are subject
to Homeowners Association maintenance.
All retaining walls exceeding a height of 6'-0" measured from finished
grade.
6. The final trail alignment for the proposed General Plan equestrian trial
connecting the City's open space lands through the site to La Novia
Avenue.
vu20o5-7-12
7. The final improvement plans for the required private park designated as
Parcel 14A on Revised Tentative Tract Map (TTM) 14343.
8. The final improvement plan for the required recreational vehicle storage
area including access, paving, fencing, lighting, and landscaping.
(b) The geotechnical stability plan and overall grading plan for the Tentative
Tract Map (TTM) shall be subject to Planning Commission review and recommendation.
(c) Any changes to the trail alignment for the proposed General Plan
equestrian trial connecting the City's open space lands through the site to La Novia Avenue shall
be subject to review by the Parks, Recreation, & Equestrian Commission.
(d) The required widening of Valle Road between La Novia Avenue and San
Juan Creek Road shall be to "secondary arterial" standards.
ARTICLE 3. REVIEW FOR COMPLIANCE
3.1 Periodic Review. The City Council shall review this Agreement annually, on or
before the anniversary of the Effective Date, in order to ascertain the good faith compliance by
Developer, with the terms of the Agreement. As part of that review, Developer shall submit an
annual monitoring review statement describing its actions in compliance with the Agreement, in
a form acceptable to the City Manager or his/her authorized designee, within thirty (30) days
after each anniversary date of the Effective Date of this Agreement. The statement shall be
accompanied by an annual review fee as specified in the City's adopted fee resolution. No
failure on the part of the City to conduct or complete the review as provided herein shall have
any impact on the validity of this Agreement.
3.2 Special Review. The City Council may, in its sole and absolute discretion, order
a special review of compliance with this Agreement at any time at City's sole cost. Developer
shall cooperate with the City in the conduct of such special reviews.
3.3 Procedure. Each Party shall have a reasonable opportunity to assert matters
which it believes have not been undertaken in accordance with the Agreement, to explain the
basis for such assertion, and to receive from the other Party a justification of is position on such
matters.
3.3.1 If on the basis of the Parties' review of any terms of the Agreement,
either Party concludes that the other Party has not complied in good faith with the terms of the
Agreement, then such Party may issue a written "Notice of Non -Compliance" specifying the
grounds therefore and all facts demonstrating such non-compliance.
3.3.2 The Party receiving a Notice of Non -Compliance shall have thirty (30)
days to cure or remedy the non-compliance identified in the Notice of Compliance, or if such
cure or remedy is not reasonably capable of being cured or remedied with such thirty (30) days
ver2005-7-12 6
period, to commence to cure or remedy the non-compliance and to diligently and in good faith
prosecute such cure or remedy to completion.
3.3.3 If the Party receiving the Notice of Non -Compliance does not believe it
is out of compliance and contests the Notice, it shall do so by responding in writing to said
Notice within ten (10) calendar days after receipt of the Notice.
3.3.4 If the response to the Notice of Non -Compliance has not been received
in the offices of the Party alleging the non-compliance within the prescribed time period, the
Notice of Non -Compliance shall be presumed to be valid unless good cause exists for not
responding within the time period.
3.3.5 If a Notice of Non -Compliance is contested, the Parties shall, for a
period of not less than fifteen (15) days following receipt of the response, seek to arrive at a
mutually acceptable resolution of the matter(s) occasioning the Notice. In the event that a cure
or remedy is not timely effected or, if the Notice is contested and the Parties are not able to arrive
at a mutually acceptable resolution of the matter(s) by the end of the fifteen (15) day period, the
party alleging the non-compliance may thereupon pursue the remedies provided in Section 3.4 of
this Agreement.
3.3.6 Neither Party hereto shall be deemed in breach if the reason for
noncompliance is due to a "force majeure" as defined in, and subject to the provisions of Section
9.7 below.
3.4 Certificate of Agreement Compliance. If, at the conclusion of a periodic or
special review, Developer is found to be in compliance with this Agreement, City shall, upon
request by Developer, issue a Certificate of Agreement Compliance ("Certificate") to Developer
stating that after the most recent Periodic or Special Review and based upon the information
known or made known to the City Council that (1) this Agreement remains in effect and that (2)
Developer is in compliance. The Certificate, whether issued after a Periodic or Special Review,
may be in recordable form if required, shall contain information necessary to communicate
constructive record notice of the finding of compliance, and shall state that the Certificate
expires upon the earlier of (i) one (1) year form the date thereof, or (ii) the date of recordation of
a Notice of Termination of Development Agreement. Additionally, Developer may at any time
request from the City a Certificate stating, in addition to the foregoing, which obligations under
this Agreement have been fully satisfied with respect to the Subject Property, or any lot or parcel
within the Subject Property. Developer may record the Certificate with the County Recorder. If
City does not expressly issue a Certificate, or expressly decline to issue a Certificate within 15
calendar days of after the conclusion of the periodic or special review, a Certificate shall be
deemed to have been provided to Developer.
ARTICLE 4. TERMINATIONIDEFAULT AND REMEDIES
4.1 Termination for Default by Developer. The City may terminate this Agreement
for any failure of Developer to perform any of its material duties or obligations hereunder to
comply in good faith with the terms of this Agreement (hereinafter referred to as "default' or
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"breach"); provided, however, the City may terminate this Agreement pursuant to this Section
only after following the procedure set forth in Section 4.3.
4.2 Termination of Agreement for Default of City. Developer may terminate this
Agreement pursuant to this Section only after following the procedure set forth in Section 3.3
and thereafter providing written notice by Developer to the City of the default setting forth the
nature of the default and the actions, if any, required by the City to cure such default and, where
the default can be cured, the failure of the City to cure such default within thirty (30) days after
the effective date of such notice or, in the event that such default cannot be cured within such
thirty (30) day period, the failure of the City to commence to cure such default within such thirty
(30) day period and to diligently proceed to complete such actions and to cure such default.
4.3 Rights and Duties Following Termination. Upon the termination of this
Agreement, no Party shall have any further right or obligation hereunder except with respect to
(i) any obligations to have been performed prior to said termination, or (ii) any material default
in the performance of the provisions of this Agreement which has occurred prior to said
termination.
4.4 Dispute Resolution by Binding Arbitration. Subject to the notice of default and
opportunity to cure provisions provided herein, all disputes, claims, and questions regarding the
rights and obligations of the Parties under the terms of this Agreement shall be resolved by
binding arbitration.
In case of a dispute, either party may make a demand for Arbitration by filing
such demand in writing with the other party within ten (10) days after the notice of default and
cure process has been exhausted.
The arbitrator shall be mutually selected by the Parties. In the event that the
Parties cannot agree on an arbitrator within ten (10) days, then one or both Parties shall file a
written request with the Judicial Arbitration and Mediation Service ("JAMS") for a list of nine
(9) potential arbitrators. Upon receipt of such list, the Parties shall promptly conduct a strike -off
of unacceptable names. A coin toss shall be initially conducted to determine which Party shall
strike off the first name.
Once the arbitrator is chosen, the Parties immediately shall forthwith request
JAMS to set an arbitration hearing not later than 120 days from date of the arbitration request.
Costs of the arbitration proceeding shall be shared equally.
4.5 Surety Bond. Nothing in this Article shall prevent City from making a demand
on the surety bond for untimely performance of the traffic mitigation measures set forth by the
City Council's approval of Exhibit A-2, Vesting Tentative Tract 14343, provided the provisions
of Section 3.3 have been complied with.
ARTICLE 5. THIRD PARTY LITIGATION
The City shall promptly notify Developer of any claim, action, or proceeding filed and
served against the City to challenge, set aside, void, annul, limit or restrict the approval and
continued implementation and enforcement of this Agreement. Developer agrees to fully defend
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and indemnify the City for all costs of defense and/or judgment obtained in any such action or
proceeding. Developer shall assume the obligation of providing a legal defense in such
litigation, including the choice of defense legal counsel, unless otherwise provided for by mutual
stipulation of the Parties.
ARTICLE 6. MORTGAGEE PROTECTION
6.1 The Parties hereto agree that this Agreement shall not prevent or limit Developer
in any manner, at Developer's sole discretion, from encumbering the Subject, Property or any
portion thereof or any improvement thereon by any mortgage, deed of trust or other security
device securing financing with respect to the Subject Property. The City acknowledges that the
lenders providing such financing may require certain Agreement interpretations and
modifications and agrees upon request, from time to time, to meet with Developer and
representatives of such lenders to negotiate in good faith any such request for interpretation or
modification. Subject to compliance with applicable laws, the City will not unreasonably
withhold its consent to any such requested interpretation or modification provided the City
determine such interpretation or modification is consistent wit the intent and purposes of this
Agreement.
6.2 Any Mortgagee of the Subject Property shall be entitled to the following rights
and privileges:
(a) Neither entering into this Agreement nor a breach of this Agreement shall
defeat, render invalid, diminish or impair the lien of any mortgage on the Subject Property made
in good faith and for value, unless otherwise required by law.
(b) The Mortgagee of any mortgage or deed of trust encumbering the Subject
Property, or any part thereof, which Mortgagee has submitted a request in writing to the City in
the manner specified herein for giving notices, shall be entitle to receive written notification
from the City of any default by Developer in the performance of Developer's obligations under
this Agreement.
(c) If the City timely receives a request from a Mortgagee requesting a copy
of any notice of default given to Developer under the terms of this Agreement, the City shall
make a good faith effort to provide a copy of that notice to the Mortgagee within ten (10) days of
sending the notice of default to Developer. The Mortgagee shall have the right, but not the
obligation, to cure the default during the period that is the longer of (i) the remaining cure period
allowed such Party under this Agreement or (ii) thirty (30) days.
(d) Any Mortgagee who comes in to possession of the Subject Property, or
any part thereof, pursuant to foreclosure of the mortgage or deed of trust, or deed in lieu of such
foreclosure, shall take the Subject Property, or party thereof, subject to the terms of this
Agreement. Notwithstanding any other provision of this Agreement to the contrary, no
Mortgagee shall have an obligation or duty under this Agreement to perform any of Developer's
obligations or other affirmative covenants of Developer hereunder, or to guarantee such
performance; except that (i) to the extent that any covenant to be performed by Developer is a
condition precedent to the performance of a covenant by the City, the performance thereof shall
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continue to be a condition precedent to the City's performance hereunder, and (ii) in the event
any Mortgagee seeks to develop or use any portion of the Property acquired by such Mortgagee
by foreclosure, deed of trust or deed in lieu of foreclosure, such Mortgagee shall strictly comply
with all of the terms, conditions and requirements of this Agreement and the Development Plan
applicable to the Subject Property or such part thereof so acquired by the Mortgagee.
ARTICLE 7. INSURANCE
Developer shall submit within 30 days from date of adoption of the ordinance approving
this Development Agreement to the City duplicate originals of policies and endorsements, or
appropriate certificates of insurance, of public liability insurance and broad form property
damage insurance policies in the amount of not less than Two Million Dollars ($2,000,000),
combined single limits, for death and injury to any person and property damage, naming the City
and its officers, officials, employees, agents, and representatives as additional insureds, and in
addition all such insurance:
(a) shall be primary insurance and not contributory with any other insurance
the City or its officers, officials, employees, agents, and representatives may have;
(b) shall contain no special limitations on the scope of protection affordable to
the City and its officers, officials, employees, agents, and representatives;
(c) shall be "date of occurrence" and not "claims -made" insurance;
(d) shall apply separately to each insured against whom claim is made or suit
is brought, except with the respect to the limits of the insurer's liability;
(e) shall provide that the policy shall not be canceled by the insurer or
Developer unless there is a minimum of ninety (90) days prior written notice to the City;
(f) shall be endorsed to include a waiver of subrogation rights against the City
or its officers, Officials, employees, agents, and representatives; and
(g) shall otherwise be in a form acceptable to the Office of the City Attorney.
ARTICLE 8. INDEMNITY
Developer agrees to and shall indemnify, defend, and hold harmless the City and the
City's officers, officials, members, employees, agents, and representatives, from and against any
and all claims, liabilities, damages, and losses, including without limitation reasonable attorneys'
fees and litigation expenses, including court, courts and expert witness fees (collectively,
"Claims") arising out of City's approval of land use entitlements for Developer's project and this
development agreement; or due to the death or personal injury of any person, or physical damage
to any person's real or personal property, caused by construction of improvements by, or
construction -related activities of, Developer or Developer's employees, agents, representatives,
servants, invitees, consultants, contractors, or subcontractors (collectively, "Developer's
Representatives") on the Subject Property, or for any construction defects in any improvements
constructed by Developer or Developer's Representatives on the Subject Property; provided,
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however, that Developer shall not be required to indemnify the City for any and all misconduct
of the City, or the City's officers, officials, members, employees, agents, or representatives,
subject to any immunities which may apply to the City with respect to such Claims. The
foregoing indemnification provision shall survive the termination of this Agreement.
ARTICLE 9. MISCELLANEOUS PROVISIONS
9.1 Entire Agreement. This Agreement sets forth and contains the entire
understanding and agreement of the Parties with respect to the subject matter set forth herein,
and there are no oral or written representations, understandings or ancillary covenants,
undertakings or agreements which are not contained or expressly referred to herein. No
testimony of evidence of any such representations, understandings or covenants shall be
admissible in any proceeding of any kind or nature to interpret or determine the terms or
conditions of this Agreement.
9.2 Severability. If any word, phrase, term, provision, clause, covenant or condition
of this Agreement shall be determined invalid, void or unenforceable, the invalid provision shall
be deemed to be severable from the, remaining provisions contained within the Agreement. The
Parties hereby state and acknowledge they would have adopted each and every provision
contained within this Agreement notwithstanding the presence of an invalid provision.
9.3 Interpretation and Governing Law. This Agreement and any dispute arising
hereunder shall be governed and interpreted in accordance with the laws of the State of
California. This Agreement shall be construed as a whole according to its fair language and
common meaning to achieve the objectives and purposes of the Parties, and the rule of
construction to the effect that ambiguities are to be resolved against the drafting party or in favor
of the City shall not be employed in interpreting this Agreement, all Parties having been
represented by counsel in the negotiation and preparation hereof.
9.4 Section Headings. All section headings and subheadings are inserted for
convenience only and shall not affect any construction or interpretation of this Agreement.
9.5 Waiver. Failure of a Party to insist upon the strict performance of any of the
provisions of this Agreement by the other Party, or the failure by a Party to exercise its rights
upon the default of the other Party, shall not constitute a waiver of such Party's right to insist and
demand strict compliance by the other Party with the terms of this Agreement thereafter.
9.6 No Third Party Beneficiaries. This Agreement is made an entered into for the
sole protection and benefit for the Parties and their successors and assigns. No other person shall
have any right of action based upon any provision of this Agreement.
9.7 Force Majeure. Upon the Effective Date of this Agreement, Neither Party shall
be deemed to be in default where failure or delay in performance of any of its obligations under
this Agreement is caused by earthquakes, other acts of God, fires, wars, riots or similar
hostilities, strikes and other labor difficulties beyond the party's control (including the Party's
employment force), court actions (such as restraining orders or injunctions), or other causes of a
similar nature beyond the Party's reasonable control. If any such events shall occur, the term of
this Agreement and the time for performance shall be extended for the duration of each such
ver2005-7-12 11
event, provided that the term of this Agreement shall not be extended under any circumstances
for more than five (5) years.
9.8 Mutual Covenants. The covenants contained herein are mutual covenants and
also constitute conditions to the concurrent or subsequent performance by the Party benefited
thereby of the covenants to be performed hereunder by such benefited Party.
9.9 Litigation Expenses. In the event of any action between the City and Developer
seeking enforcement of any of the terms and conditions to this Agreement, the prevailing party in
such action shall be awarded, in addition to such relief to which such party entitled under this
Agreement, its reasonable litigation costs and expenses, including without limitation its expert
witness fees and reasonable attorneys' fees.
9.10 Covenant Not to Sue. The Parties to this Agreement, and each of them, agree
that this Agreement and each term hereof is legal, valid, binding, and enforceable. The Parties to
this Agreement, and each of them, hereby covenant and agree that each of them will not
commence, maintain, or prosecute any claim, demand, cause of action, suit, or other proceeding
against any other Party to this Agreement, in law or in equity, or based on an allegation, or assert
in any such action that this Agreement or any term hereof is void, invalid, or unenforceable
under the Development Agreement legislation.
9.11 Project as a Private Undertaking. It is specifically understood and agreed by
and between the Parties that the Development of the Subject Project is a private development,
that neither Party is acting as the agent of the other in any respect hereunder, and that each Party
is an independent contracting entity with respect to the terms, covenants and conditions
contained in this Agreement. No partnership, joint venture or other association of any kind is
formed by this Agreement. The only relationship between the City and Developer is that of a
government entity regulating the Development of private property, on the one hand, and the
holder of a legal or equitable interest in such property and as a current or future holder of fee title
to such property, on the other hand.
9.12 Further Actions and Instruments. Each of the parties shall cooperate with and
provide reasonable assistance to the other to the extent contemplated hereunder in the
performance of all obligations under this Agreement and the satisfaction of the conditions of this
Agreement. Upon the request of either party at any time, the other party shall promptly execute,
with acknowledgment or affidavit if reasonably required, and file or record such required
instruments and writings and take any actions as may be reasonably necessary under the terms of
this Agreement to carry out the intent and to fulfill the provisions of this Agreement or to
evidence or consummate the transactions contemplated by this Agreement. The provisions of
this Section shall not require the taking of any actions which are prohibited by law or, except as
expressly set forth in this Agreement, impair the lawful legislative discretion of the City as to
those matters to which the law imparts legislative discretion to the City.
9.13 Corporate Authority. The person(s) executing this Agreement on behalf of each
of the Parties hereto represent and warrant that (i) such Party are duly organized and existing, (ii)
they are duly authorized to execute and deliver this Agreement on behalf of said Party, (iii) by so
executing this Agreement such Party is formally bound to the provisions of this Agreement, and
ver2005-7-12 12
(iv) the entering into this Agreement such Party is formally bound to the provisions of this
Agreement, and (iv) the entering into this Agreement does not violate any provision of any other
agreement to which such Party is bound.
9.14 Notices. All notices under this Agreement shall be effective upon personal
delivery, via facsimile so long as the sender receives confirmation of successful transmission
from the sending machine, or three (3) business days after deposit in the United States mail, first
class, postage fully prepaid and addressed to the respective Parties as set forth below or as to
such other address as the Parties may from time to time designate in writing:
To City: City of San Juan Capistrano
32400 Paseo Adelanto
San Juan Capistrano 92675
Attn: City Manager
Facsimile: (949) 488-3874
To Developer: Advanced Group 99 -SJ
22974 Toro Road
Lake Forest, CA 92630
Facsimile: (949) 595-5901
Copy to: Manatt, Phelps and Phillips, LLP
695 Town Center Drive, 14th Floor
Costa Mesa, CA 92626
Attn: Roger A. Grable, Esq.
Facsimile: (714) 371-2537
9.15 Non -liability of City Officials. No officer, official, member, employee, agent, or
representatives of the City shall be liable for any amounts due hereunder, and no judgment or
execution thereon entered in any action hereon shall be personally enforced against any such
officer, official, member, employee, agent, or representative.
9.16 Time of the Essence. The Parties expressly acknowledge and that time is of the
essence in the performance of the provisions of this Agreement.
9.17 Execution Date. The Execution Date of this Agreement is that date on which all
parties have executed this Agreement.
9.18 Effective Date/Condition Subsequent. This Agreement shall not go into effect
until the earlier of the occurring of the following: (a) 5 days following the lapsing of any and all
statutes of limitation applicable to any legal challenge to this Agreement, and to any and all
environmental impact reports prepared in connection with this Agreement, or (b) 5 days
following the entry of a final, non -appealable judgment in any action challenging this
Agreement, and any and all environmental impact reports prepared in connection with this
Agreement.
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9.19 Survival Clause. Notwithstanding Section 1.4 of this Agreement, Section 2.5,
Developer's Obligation to Pay Current Impact and Service Fee and Section 2.7, Reservation of
Authority/Exceptions shall survive the termination of this Agreement for a period of 20 years.
IN WITNESS WHEREOF, the Parties hereto have executed this Agreement on the day
and year first set forth above.
City: CITY OF SAN JUAN CAPISTRANO
M
Attest:
M
Meg Monahan, City Clerk
APPROVE AS TO FORM:
By:
John Shaw, City Attorney
Wyatt Hart, Mayor, City of San Juan Capistrano
ADVANCED GROUP 99 -SJ, a California limited partnership
General Partner
vff2oo5-7-12 14
STATE OF CALIFORNIA
SS.
COUNTY OF )
On 2005, before , a Notary Public, personally
appeared , personally known to me -OR- [ ] proved
to me on the basis of satisfactory evidence to be the person whose name is subscribed to the
within instrument and acknowledged to me that he executed the same in his authorized capacity,
and that by his signature on the instrument the person, or the entity upon behalf of which the
person acted, executed the instrument.
Witness my hand and official seal.
Signature of Notary
ver2005-7-12 15
PUBLIC AGENCY FORM OF ACKNOWLEDGEMENT
State of California )
County of Orange ) ss.
City of San Juan Capistrano )
(Gov't Code 40814 & Civil Code 118 1)
On 2005 before me, Margaret R. Monahan, City Clerk, personally appeared
personally known to me to be the person whose name is subscribed to
the within instrument and acknowledged to me that he executed the same in his authorized
capacity, and that by his signature on the instrument the person, or the entity upon behalf of
which the person acted, executed the instrument.
(SEAL)
Capacity Claimed by Signers
Mayor
Title
Signers are Representing
City of San Juan Capistrano
Witness my hand and official seal.
Margaret R. Monahan, City Clerk
OPTIONAL
Description of Attached Document
Development Agreement
Exhibit A-1
Legal Description
That portion of Lot 5, in the City of San Juan Capistrano, County of Orange, State of
California, as shown on a map filed in book 4, page(s) 15, of Record of Surveys, in the office
of the County Recorder of said County, described as follows:
Beginning at the most Southerly corner of said Lot 5; thence North 64°03'45" West 495.51 feet
along the Southwesterly line of said Lot 5, to the most Easterly corner of land described as
Parcel 3 in a deed to Edward J. Guirado and wife, recorded April 17, 1950 in book 1999 page
443, Official Records; thence North 22'03'10" West 1386.08 feet along the Northeasterly line
of said land of Edward J. Guirado, to an angle point designated Station `B" in the
Southeasterly line of land described as Parcel 1 in a deed to Rosenbaum Ranch Co., a
Partnership, recorded December 30, 1947 in book 1613, page 219, Official Records; thence,
along the Southeasterly and Easterly line of said Land of the Rosenbaum Ranch Co., the
following bearings and distances North 45°18'00" East 576.30 feet, North 4°07'00" East
267.60 feet, North 24°05'00" East 357.47 feet, North 80°26'10" East 233.10 feet, North
10°53'00" West 438.90 feet to the Northwesterly line of said Lot 5; thence North 54°50'00"
East 450.00 feet along said Northwesterly line to an angle point therein; thence North 0°50'00"
East 500.73 feet to an angle point in the Southwesterly line of land described as Parcel 3 in a
Deed to Howard L. Krum and wife, recorded November 26, 1941 in Book 1120 page 253,
Official Records, said point being South 0°50'00" West 22.00 feet from the Southwest corner
of Lot 2 of said Record of Survey above described; thence, along the Southwesterly line of said
land of Howard L. Krum, the following bearings and distances: South 42°33'30" East 1408.90
feet, South 66°25'00" East 991.16 feet to the Easterly line of said Lot 5; thence along the
Easterly and Southeasterly line of said Lot 5, the following bearings and distances: South
10°05'00" West 536.74 feet, South 23°33'00" East 1047.15 feet, South 78°55'00" West
1565.79 feet, South 89°43'00" West 486.00 feet, South 31°35'00" West 621.05 feet to the
point of beginning.
EXCEPT THEREFROM the following:
Beginning at a point of intersection of that certain course in the Westerly line and that certain
course in the Northeasterly line, described as having bearings of North 0°50' East and South
42°33'30" East, respectively, in Parcel 1 of deed recorded in book 1603, page 295, Official
Records, in the office of the County Recorder of said County; thence, along said Northeasterly
line, South 41°49'07" East 51.18 feet to the point of intersection with a curve concave,
northerly, having a radius of 150 feet, at which point a tangent bears North 77°02'03" West;
thence Northwesterly along said curve, through an angle of 14°11'56", an arc distance of 37.17
feet to said Westerly line; thence, along said Westerly line, North 1°34'23" East 25.43 feet
to the point of beginning.
Exhibit A-2
Vesting Tentative Tract Map 14343
Incorporated by Reference