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05-0802_ADVANCED GROUP 99SJ_Development AgreementJ Recorded in Official Records, Orange County Tom Daly, Clerk -Recorder kecording Requested By And When Recorded Return !iii �u ��I�;��i��I�� NO FEE Meg Monahan City Clerk City of San Juan Capistrano 32400 Paseo Adelanto San Juan Capistrano, Ca. 92675 200500068271811.01am 08130105 2'1 109Al2 18 o.0G 0.00 0.00 0.00 0.00 0.00 0.00 0.00 [Exempt From Recording Fees-G.C. 6103] DEVELOPMENT AGREEMENT Wd This Development Agreement ("Agreement") is made this _C� day of NOT 1 2005, by and between the City of San Juan Capistrano ("City") and Adv ed 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: ver2005-7-12 I 1� ARTICLE 1. GENERAL PROVISIONS t 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 shat_ oe 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 terms 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: ver2005-7-12 2 __� (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 specifipations, 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 v�2005-7-12 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 1 (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. 5. 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. ver2005-7-12 5 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 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. TERMINATION/DEFAULT AND REMEDIES 4.1 Termination for Default by Developer. The City may tenninate 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 ver2005-7-12 7 �\\J "breach"); provided, however_ the Ci y may terminate tt is 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 Agreegient. Developer agrees to fully defend ver2005-7-12 8 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 ver2005-7-12 9 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; i (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, vu2005-7-12 10 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 I I event, provided that the term of this .Agreement shall not be extended under any circumstances 1 for more than five (5) years. A 4 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 transaciions 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 \1 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. vu20o5-7-12 13 -- 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. Attest: City Clerk TO FORM: By: John City: CITY OF SAN JUAN CAPISTRANO By: Wyatt H , Mayor, City of San Juan Capistrano ADVANCED 1-01 SJ, a California limited partnership ver2005-7-12 14 CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT State of California r��County of ss. (( On e,> 705 before me, 'Q I tfe VoaK'.� I / /j G� � � 1;c Date Name andWe of Offic (e.g., "Jane D e, Lary Public") personally appeared ❑ personally known to me a*4roved to me on the basis of satisfactory evidence to be the persol whose name(a) is/Ar'6 subscribed to the within instrument and acknowledged to me that he/sheAhq executed the same in his/hcNtHeir authorized capacity(il and that by his/hap*,reir signature(Bj on the instrument the person(s), or the entity upon behalf of which the person acted, executed the instrument. WITNES zadl and fficial seal. Place Notary Seal Above(�%�Signature otary Public OPTIONAL Though the information below is not required by law, it may prove valuable to persons relying on the document and could prevent fraudulent removal and reattachment of this form to another document. Description of Attached Title or Type of Document: _ Document Date: Signer(s) Other Than Named Above: Capacity(les) Claimed by Signers) Signer's Name: ❑ Individual ❑ Corporate Officer — Title(s): ❑ Partner —❑ Limited ❑ General ❑ Attorney in Fact ❑ Trustee ❑ Guardian or Conservator Ll Other: Signer Is Representing: RIGHT THUMBPRINT OF SIGNER 11 Number of Pages: Signer's Name: J Individual ❑ Corporate Officer—Title(s): ❑ Partner — ❑ Limited ❑ General ❑ Attorney in Fact WORN 0, Top of thumb here El Trustee ❑ Guardian or Conservator ❑ Other: Signer Is Representing: 02004 National Notary Association • 9350 De Soto Ave., P.O. Box 2402 • Chatsworth, CA 91313-2402 Item No, 5907 Reorder Call Toll -Free 1 -BW -8)6-682] rhi0� Ni�+oi0 'd ��wsi%i mmt>>YF� 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 August 17, 2005, before me, Margaret R. Monahan, City Clerk, personally appeared Wyatt Hart 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) WITNESS my hand and official seal. Capacity Claimed by Signers Mayor Title Signers are Representing City of San Juan Capistrano Description of Attached Document Development Agreement: Advanced Group 99SJ, TTM 14343 Date: August 2, 2005 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 14011'56", 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 t t Vesting Tentative Tract Map 14343 Incorporated by Reference