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10-1229_ADVANCED GROUP 99-SJ & 03-79-2 (ARES)_Development Agreement
d r0€), County i4 NO FEE RECORDING REQUESTED BY �- 000704146 915 qnj 12/29m0 AND WHEN RECORDED MAIL TO: 2764-1,9AI2 41 City Clerk 120.00 0,00 00() 0.00 City of San Juan Capistrano 32400 Paseo Adelanto San Juan Capistrano, CA 92675 (Space Above This Line for Recorders Office Lice Only) (Exempt from Recording Fee perGov.Code§§6103 and 2738)) DEVELOPMENT AGREEMENT (San Juan Mead ows/Distrito la Novia) by and between CITY OF SAN JUAN CAPISTRANO and ADVANCED GROUP 99-SJ and ADVANCED GROUP 03-79-2 DEVELOPMENT AGREEMENT (Saar Juan Meadows/Distrito la Novia) This DEVELOPMENT AGREEMENT (San Juan Meadows/Distrito la Novia) (the "Agreement") is dated for reference purposes only as of the _qday of November, 2010, and is being entered into by and between the CITY OF SAN JUAN CAPISTRANO, a municipal corporation, organized and existing under the laws of the State of California ("City") and ADVANCED GROUP 99-SJ, a California limited partnership ("Advanced — San Juan Meadows") and ADVANCED GROUP 03-79-2, a California limited partnership ("Advanced — Distrito")(collectively "Developer"), pursuant to the authority of Sections 65864 through 65869.5 of the California Government Code (the "Development Agreement Legislation") and Article XI, Section 2, of the California Constitution. City and Developer are sometimes hereinafter referred to as the "Parties." RECITALS This Agreement is predicated upon the following facts: A. These Recitals refer to and utilize certain capitalized and initial capitalized terms which are defined in this Agreement. The Parties intend to refer to those definitions in conjunction with the use thereof in these Recitals. B. The Development Agreement Legislation authorizes CITY to enter into binding development agreements with persons having legal or equitable interests in real property for the development of such property in order to, among other things: ensure high quality development in accordance with comprehensive plans; provide certainty in the approval of development projects so as to avoid the waste of resources and the escalation in the cost of housing and other development to the consumer; provide assurance to the applicants for development projects that they may proceed with their projects in accordance with existing politics, rules, and regulations, subject to the applicable conditions of approval, in order to strengthen the public planning process and encourage private participation in comprehensive planning and reduce the private and public economic costs of development; and encourage and provide for the development of public infrastructure and amenities to support the development of new housing and commercial projects. C. DEVELOPER is the fee owner of that certain real property consisting of approximately 18.7 acres of land area generally located between San Juan Creels Road and. La Novia Avenue and east of Valle Road (the "Distrito Property") and 135 acres of land generally located south of La Novia and bordered by the Capistrano Terrace Mobilehome Park to the west and the Glendale Federal Planned Community to the east (the `'San Juan Meadows Property"), both in the City of San- Juan Capistrano, County of Orange, State of California, that is more particularly described in Exhibits "A-1" and "A-2" attached hereto and made a part hereof (collectively the "Property"). D. DEVELOPER desires to develop the Property in accordance with the provisions of this Agreement, the "Development Plan" or "Project" described herein, and other applicable 2 regulations of the City of San Juan Capistrano and other governmental agencies having jurisdiction over the Property. E. DEVELOPER has applied for, and CITY has approved, this Agreement in order to create a beneficial development project and a physical environment that will conform to and complement the goals of CITY, be sensitive to human needs and values, and facilitate efficient traffic circulation. By its approval and execution of this Agreement CITY has determined that CITY (including, without limitation the existing and future residents of CITY) will receive the following direct and indirect benefits from the implementation of this Agreement: I. The improvement of the former Forster Canyon Landfill in accordance with current regulatory requirements to benefit the health and safety of the irru-nediate community. 2. A reduction in density from the currently approved San .Tuan Meadows project by more than 200 residential units. 3. A significant increase in open space over and above the currently approved San Juan. Meadows project. 4. Over one mile of new equestrian trails.linked to the City's trail system together with trailhead parking and two new lookout points. 5. Provision of state of the art equestrian facilities in furtherance of the City's general plan goals for San Juan Capistrano as an equestrian oriented community. 6. The development of new tax generating uses for the City of San Juan Capistrano and tax increment for the San Juan Capistrano Community Development Agency. 7. The Project will conform to City's goal to manage growth through the use of, among other things, comprehensive planning and design, project-wide continuity of landscaping and architectural design, state-of-the-art development standards, and planning concepts. 8. The traffic and circulation elements of the Development Plan will conform to City's General Plan and will be designed to reduce the impact of the average daily trips generated by the development of the Property on arterial roads and thoroughfares. 9. DEVELOPER has agreed, for the benefit of CITY, that DEVELOPER will exercise reasonable diligence to prepare and process at DEVELOPER'S expense the following entitlements, all as depicted in Exhibit "B" attached hereto: • General Plan Amendment (GPA) 07-01 • Rezone (RZ) 07-01 • Tentative Tract Map (TTM) 17280 3 • Tentative Tract Map(TTM) 17226 ® Architectural Control (AC) 0714 e Grading Plan Modification (GPM) 07-01 F. The following actions have been taken with respect to this Agreement and the Project: 1. On or about November 16, 2009, CITY accepted as complete DEVELOPER'S application for said applications and entitlements with respect to the Property; 2. On April 23, 2010, following a duly-noticed and conducted public hearing, the Planning Commission of CITY forwarded this agreement to the City Council for final action; 3. Pursuant to the applicable provisions of the California Environmental Quality Act, Public Resources Code Section 21000 et seq., and the regulations promulgated by the Secretary of Resources pursuant thereto ('Title 14 of the California Code of Regulations, Section 15000 et seq.) {collectively, "CEQA""), by its approval of this Agreement the City Council of CITY has found and deterin.ined that all of the significant environmental impacts of the Project were adequately addressed in Environmental Impact Report, State Clearinghouse (SCH) No. 2008060178 prepared for the Development Plans; 4, On November 2, 2010, atter a duly-noticed and conducted public hearing, the City Council of CITY determined that the provisions of this Agreement are consistent with the General Plan of CITY; and 5. On November 2, 2010, after a duly-noticed and conducted public hearing, the City Council of CITY introduced Ordinance No. 976 approving and authorizing the execution of this Agreement and on November 16, 2010, the City Council adopted said Ordinance (hereinafter the "Authorizing Ordinance"), a copy of which Authorizing Ordinance is on file in the City Clerk's office at City fall. G. In consideration of the substantial public improvements and benefits to be provided by DEVELOPER and the Project, and in order to strengthen the public planning process and reduce the economic risk of development, by this Agreement CITY intends to provide to DEVELOPER the assurance that it can proceed with. development of the Project for the Term of this Agreement pursuant to the terms and conditions of this Agreement and in accordance with the City's General Plan, ordinances, policies, rules, and regulations existing as of the Effective Date. In reliance on City's covenants in this Agreement concerning development of the Property, DEVELOPER has and will in the future incur substantial costs in site preparation and the construction and installation of major infrastructure and facilities in order to make the Development Plan feasible. 4 H. Pursuant to Section 65867.5 of the Development Agreement Legislation, the City Council has found and determined that: (i) this Agreement and the Development Plan for the Project implement the goals and policies of City's General Plan, provide balanced and diversified land uses and impose appropriate standards and requirements with respect to land development and usage in order to maintain the overall quality of life and the environment within the City of San Juan Capistrano, (ii) this Agreement is in the best interests of and not detrimental to the public health, safety, and general welfare of CITY and its residents; (iii) adopting this Agreement is consistent with City's General Plan and constitutes a present exercise of City's police power; and (iv) this Agreement is being entered into pursuant to and in compliance with the requirements of Section 65867 of the Development Agreement Legislation. 1. CITY and DEVELOPER agree that it may be beneficial to enter into additional agreements or to modify this Agreement with respect to the implementation of the separate components of the Development Plan when more information concerning the details of each component is available, and that this Agreement should expressly allow for such contemplated additional agreements and modifications to this Agreement. AGREEMENT NOW, TIIEREFORE, pursuant to the authority contained in the Development Agreement Legislation, as it applies to CITY, pursuant to Article XI, Section 2 of the California Constitution, and in consideration of the foregoing recitals of fact, all of which are expressly incorporated into this Agreement, the mutual covenants set forth in this Agreement, and for the further consideration described in this Agreement, the Parties agree as follows: 1. Definitions. The following words and phrases are used as defined terms throughout this Agreement and each defined term shall have the meaning set forth below: 1.1 Authorizing Ordinance. "Authorizing Ordinance" means Ordinance No. 976 approving this Agreement. 1.2 CEQA. "CEQA" has the meaning ascribed to that term in Recital F.3, of this Agreement. 1.3 CITY. "CITY" means the City of San Juan Capistrano, a California municipal corporation, duly organized and existing under the Constitution and laws of the State of California, and all of its officials, employees, agencies, and departments. 1.4 City Council. "City Council" means the duly elected and constituted City council of CITY. 1.5 Default. "Default" has the meaning ascribed in Section I 1 of this Agreement, as applicable. 1.6 Develop or Development or Developing. "Develop" or "Development" or "Developing" means the improvement of the Property for purposes consistent with the 5 Development Plan, including, without limitation: subdividing, grading, the construction of infrastructure and public facilities related to the Development Plan, the construction of structures and buildings, and the installation of landscaping, all in accordance with the provisions of this Agreement, but does not include the maintenance, repair, reconstruction, or redevelopment of any building, structure, improvement, or facility after the initial construction and completion thereof. 1.7 Developer. "Developer" means, Advanced San Juan Meadows and Advanced Distrito, all successors in interest, in whole or part, to the right, title, and interest of any of such entities in and to this Agreement with respect to all or any portion of the Property owned by there. 1.8 Development Agreement Legislation. "Development Agreement Legislation" means Sections 65864 through 65869.5 of the California Government Code as it exists on the Effective Date. 1.9 Development Exactions. "Development Exactions" means any requirement of CITY for the dedication of land (including without limitation through the encumbrance of land with an easement or use restriction in favor of a public agency, the public, or a private non-profit entity), the construction or improvement of public improvements or facilities (including without limitation improvements or facilities located on land that is encumbered with an easement or use restriction in favor of a public agency, the public, or a private non-profit entity), or the formation of any financing district and/or payment of any special taxes, assessments, or fees, of whatever amount and however denominated, in order to provide any such public improvements or facilities in conjunction with Development or to lessen, offset, mitigate, or compensate for the impacts of development on the environment or other public interests. 1.10 Development Impact Fees. "Development Impact Fees" means the monetary consideration, other than a tax or assessment charged by the City in connection with mitigating the Project-specific impacts of the Project and development of the public facilities related to development of the Project, including those fees, calculated on the basis of the number of residential units or square footage of non-residential development to be constructed., as set forth on Exhibit "C" attached hereto. Development Impact Fees do not include hair Share Fees or Processing Fees. 1.11 Development Plan. "Development Plan" means the plan for Developing the Project on the Property in accordance with this Agreement, the Development Plan Approval(s), and the Future Approvals. As of the Effective Date, the Development Plan consists of the provisions of City's General Plan (as amended by the Development Plan Approvals) applicable to the Property, the narrative description of the Project set forth in Exhibit B to this Agreement, and the express provisions set forth in this Agreement that define or describe the Project. The Future Development Approvals automatically shall. become a part of the Development Plan and included within the scope of DEVELOPER'S vested rights provided for in this Agreement without the need for any amendment of this Agreement when the same are issued or approved by CITY and become effective. Each of the documents memorializing the Development Plan is (or will be) maintained in the oflicial records of CITY and shall be utilized whenever required to interpret or apply this Agreement. 6 1.12 Development Ilan Approval(s). "Development Plan Approval(s)" means the approvals of the City Council described in Exhibit "B" hereto insofar as the same relate to the Property and the Development Plan, including those amendments to this Agreement made in accordance with Section 5 hereof, those amendments to the Development Plan Approvals made in accordance with Section 5.5 hereof, and those Future Development Approvals made in accordance with Section 6.1 hereof. 1.13 Development 'T'ransferee. "Development Transferee" means a person or entity that expressly assumes obligations under this Agreement pursuant to Section 3.1 hereof. 1.14 Effective Date. "Effective Date" means the later of the date the Authorizing Ordinance becomes effective and, if the Agreement or the Project is subject to litigation, the date upon which all such litigation is final and no longer subject to judicial review. 1.15 Existing Development Approvals. "Existing Development Approvals" means the Specific Plan, the EIR, the General Plan Amendment and. Zone Changes and the Comprehensive Development Plan. 1.16 Equestrian Facilities. "Equestrian Facilities" means commercial and non- commercial facilities for up to 500 horses including, but not limited to, related facilities such as barns, paddocks, arenas, a large animal veterinary clinic, equestrian clubhouse and locker room with restrooms and showers, eating and drinking establishment (in conjunction with equestrian clubhouse. All Equestrian Facilities shall be subject to Section 9-3.515 Equestrian Standards of the Zoning Code, 1.17 Fair Share Fees. "Fair Share Fees" means fees established by the City for the construction of certain traffic improvements based on the Projects contribution to the need for the improvements pursuant to the Capistrano Circulation Program Traffic Impact Fees, 1.18 Future Development Approvals. "Future Development Approvals" means those entitlements and approvals that are: (a) made in accordance with Section 6.1 hereof, and (b) requested by CITY or DEVELOPER in order to authorize the Development to occur upon the Property in a manner consistent with the Development Plan Approval(s). By way of enumeration, and not limitation of the foregoing, the Future Development Approvals include the approvals referred to in Section 6.1 and such other development permits, development plan previews, use permits, variances, grading permits, building permits, and occupancy permits that are required as a condition to DEVELOPER'S right to Develop all or any portion of the Project. There is Do intention to include any approvals that are beyond the implementation of the Development flan Approvals listed on Exhibit B. 1.19 On-Site Improvements. "On-Site Improvements" means physical infrastructure improvements or facilities that are or will be located on the Property. Certain On-Site Improvements may be specifically addressed in this Agreement. 1.20 Party or Parties. "Party" means either CITY or DEVELOPER, as the context dictates, and "Parties" means CITY and DEVELOPER. 7 1.21 Permitted Transferees. "Permitted Transferees" means a person or entity (i) that controls, is controlled by or is under common control with a Developer, (ii) that is a wholly owned subsidiary of a Developer, or (iii) if an entity, one that results from the merger of a Developer with such other entity and the entities described in Section 3.1. 1.22 Pre-Qualified Developer. "Pre-Qualified Developer" means a publicly traded builder or developer or a privately held builder with a minimum net financial worth of Five Million Dollars and who has constructed at least 200,00 square feet of residential or commercial development, or any combination thereof, during the preceding five year period. 1.23 Project phasing plan/final map phasing plan. "Project phasing plan/final map phasing plan" means a plan(s) that'depicts) the chronological sequence of all site improvements and the associated chronological sequence of all final subdivision maps. 1.24 Property. "Property" means the Property referred to in Recital C and more particularly described in Exhibit "A" to this Agreement. 1.25 Planning Commission. "Planning Commission" means the duly appointed and constituted planning commission of CITY. 1.26 Project. "Project" has the meaning ascribed in Recital E. The conceptual planning elements of the Project are more specifically described in Exhibit "B" hereto. 1.27 Property. "Property" means the Property referred to in Recital C and more particularly described in Exhibits "A-1" and "A-2" to this Agreement. It is further understood that the identity of the parcels included within the definition of the "Property" may be modified from time to time pursuant to Section 2.4 of this Agreement. 1.28 Remedial Action Plan. "Remedial Action Plan" means the plan for the remediation of the former Forster Canyon land-fill, with the consent and approval of the proper California regulatory agencies including the California Regional Water Quality Control Board- San Diego Region, if required. 1.29 Term. "Term" means the period of time that this Agreement remains in effect with respect to the Property or any portion thereof, as provided in. Section 2.3, 2. General Provisions. 2.1 Binding Covenants. The provisions of this Agreement to the extent permitted by law shall constitute covenants which shall run with the Property for the benefit thereof, and the benefits and burdens of this Agreement shall bind and inure to the benefit of the Parties and all successors in interest to the Parties hereto. 2.2 Interest of Developer. As of the date this Agreement is being executed by the Parties, Developer represents that Developer is the legal owner of the Property. 2.3 Term. Subject to the provisions of Section 2.4 of this Agreement, the initial term (hereinafter called "Term") of this Agreement shall commence on the Effective Date and shall 8 terminate at the end of the day immediately preceding the sixth (6"') anniversary of the Effective Date, subject to the termination provisions set forth herein; provided, however, that in no event shall the initial term exceed ten years. So long as DEVELOPER is not in Default of this Agreement and the Agreement has not been otherwise terminated, DEVELOPER may, without the prior written consent of CITY, extend the Term for one (1) additional period of four (4) years; and provided further that with respect to such 4-year extension option, DEVELOPER shall give CITY written notice of its intent to extend the Term not more than one hundred eighty (180) days and not less than sixty (60) days before the end of the initial Term provided that all Distrito improvements and buildings situated within the Community Redevelopment Agency (RDA) planning area have been constructed consistent with Development Plans. Furthermore, in order to allow the development of the "Distrito' site to proceed independent of the closure of the Forster Canyon Landfill and recognising that the project mass grading requires net cut from the "Distrito" site and net fill to the "Meadows" site, CITY will permit DEVELOPER to stockpile soil from the "Distrito" site onto the "Meadows" site subject.to DEVELOPER securing all required permits and paying all applicable fees associated with such stockpiling. 2.4 Termination. This Agreement shall be deemed terminated and of no further effect upon the occurrence of any of the following events: 2.4.1 If termination occurs pursuant to any specific provision of this Agreement; or, 2.4.2 As to any separate legal lot(s) or parcels) within the Property, upon the completion of Development on and with respect to said lot(s) or parcel(s) pursuant to the terms of this Agreement and City's issuance of all required occupancy permits or final inspections, as applicable, and acceptance of all dedications and improvements required to complete such Development; or 2.4.3 Entry after all appeals have been exhausted of a final judgment or issuance of a :final order directed to CITY invalidating this Agreement. The termination of this Agreement in its entirety or with respect to a particular lot(s) or parcels) shall not affect any right or duty of DEVELOPER arising from a source other than this Agreement. In the event this Agreement terminates in its entirety or with respect to a particular lot(s) or parcel(s), and notwithstanding any other provision set forth herein, upon. request by DEVELOPER, or any other successor or assignee of either of them, CITY shall cooperate, at no cost to CITY, in executing in recordable form a document prepared by the requesting party that confirms the termination of this Agreement with respect to the Property or applicable portion thereof. 3. Transfers and Assignments. 3.1 Right To Assign. Developer shall not assign all or any part of this Agreement without the prior written approval of the City. Such written approval by the City shall not be unreasonably withheld, provided that: (a) if Owners' proposed assignee is an entity, 9 such entity shall be legally formed and qualified to conduct business in the State of California; (b) Owners shall have delivered evidence to City that Owners' proposed assignee has the ability to comply with the Agreement; (c) Owners and its/their assignee execute an assignment and assumption agreement pursuant to which the assignee expressly assumes all of Owners' obligations under the Agreement; and (d) City shall bear no expenses in connection with such assignment. Notwithstanding any other provision of this Agreement, Owners need not obtain the prior written approval of City for the assignment of this Agreement to a limited liability company, limited partnership or corporation wholly-owned by, or under common control with, Owners. Notwithstanding any provision of this Agreement to the contrary, City approval of a Transfer or other assignment of any portion of the Property under this Agreement shall not be required in. connection with any of the following provided that such person or entity transferee assumes in writing all of the obligations of such Developer under this Agreement and notifies City in writing of the same: 3.1.1 Any transfer to an entity or entities in which Developer retains a minimum of fifty-one percent (51%) of the ownership or beneficial interest and retains management and control of the transferee entity or entities. 3.1.2 The conveyance or dedication of any portion of the Property to City or other appropriate governmental agency, or the granting of easements or permits to facilitate construction or operation of the public improvements related to the Project. 3.1.3 The grant of a deed of trust to secure the funds necessary for land acquisition, construction and permanent financing of the Project. In the event of an assignment by an Developer under the foregoing provisions not requiring City's prior approval, Developer nevertheless agrees that at least thirty (30) days prior to such assignment it shall give written notice to City of such assignment and satisfactory evidence that the assignee has assumed the obligations of this Agreement. 3.2 City Consideration of Requested Transfer. City agrees that it will consider a written request for approval of a Transfer, and such approval shall not be unreasonably withheld, delayed or conditioned, provided that: (a) if Owners' proposed assignee is an entity, such entity shall be legally formed and qualified to conduct business in the State of California; (b) Owners shall have delivered evidence to City that Owners' proposed assignee has the ability to comply with the Agreement; (e) Owners and its/their assignee execute an assignment and assumption agreement in form reasonably satisfactory to City's legal counsel pursuant to which the assignee expressly assumes all of Owners' obligations under the Agreement; and (d) City shall bear no expenses in connection with such assignment.. Such request shall be accompanied by sufficient evidence regarding the proposed transferee's development qualifications and experience, and its financial commitments and resources, in sufficient detail to enable City to evaluate the proposed assignee pursuant to the criteria set for the herein, as determined by City. Within thirty (30) days after the receipt of a Developer's written request for City approval of a Transfer, City shall either approve or disapprove such proposed Transfer or shall respond in 10 writing by stating what further information, if any, City reasonably requires in order to determine whether or not to grant the requested approval. Upon receipt of such a response, Developer shall promptly furnish to City such further information as may be reasonably requested. 3.3 Assignee Subject To Terms Of Agreement. Following an approved Transfer, the Developer Transferee's exercise, use, and enjoyment of that portion of the Property so transferred shall be subject to the terms of this Agreement to the same extent as if the Developer Transferee was one of the Developers. The burdens of this Agreement shall be binding upon, and the benefits of this Agreement shall inure to, all permitted successors in interest to the Parties to this Agreement. All provisions of this Agreement shall be enforceable as equitable servitudes and constitute covenants running with the land. Each covenant to do or refrain from doing some act hereunder with regard to development of the Property: (a) is for the benefit of and is a burden upon every portion of the Property; (b) runs with the Property and each and every portion thereof; and (c) is binding upon each party, each of Developer's Transferees during their respective ownership of the Property or any portion thereof. 3.4 Release Upon Transfer. If the City's approval of an assignment is required, then upon the written consent of the City to an Developer's partial or complete assignment of this Agreement (which consent shall not be unreasonably withheld, conditioned or delayed), or in the event of an assignment to a Permitted Transferee or a Pre-Qualified Developer, upon the express written assumption, in a form approved by the City, by the Developer Transferee, the transferring Developer shall be relieved of its legal duty to perform such assigned obligations, except to the extent such Developer is in default hereunder with respect to the particular assigned obligations prior to said transfer. 4. Development Provisions. 4.1 Vestin 4.1.1 Project. CITY covenants DEVELOPER has and shall have the right to develop the Project on the Property consistent with the Development Plan and the Development Plan Approvals, including, without limitation, the Future Development Approvals after the same have been issued or approved by CITY and become effective ("vested right"). 4.1.2 Limits on Development, The California Supreme Court held in Pardee Construction Company v. City of Camarillo, 37 Cal.3d 465 (1984), that the failure of the parties to address certain limits.on a City's ability to condition, restrict, or regulate a development allowed a later adopted initiative to restrict the development. This Agreement is intended to cure that deficiency by expressly addressing the tinning for the Development, the vested rights afforded by this Agreement, and the scope of City's reserved authority described in Section 4.2 hereof. Except as expressly set forth in the Development Plan and Development Plan Approval(s), regardless of any future enactment, whether by initiative or otherwise, DEVELOPER shall have the vested right to Develop the various components of the Project in such order, at such rate, in one phase or in multiple phases, and at such times as DEVELOPER deems appropriate within the exercise of its subjective business judgment. Specifically, CITY agrees that DEVELOPER shall be entitled to apply for and receive the Future Development Approvals and to Develop and use the Property at any time, provided that such application is 11. made and such Development occurs in accordance with this Agreement and the other Development Plan Approval(s). No future amendment of any CITY law and no future adoption of any CITY law or other action that purports to limit the scope, rate, or timing of Development on the Property or to alter the sequencing of the Development in a manner inconsistent with the Development Plan or the Development Plan Approval(s) (including without limitation the Future Development Approvals when issued by CITY), whether the same are adopted or imposed by the City Council or through the initiative or referendum process, shall apply to the Property. Notwithstanding the foregoing, nothing in this Section 4.1 shall limit or restrict City's reserved authority as described in Section 4.2. 4.1.3 Entitlements Permits, and A rovals - Coo enation. 4.1.3.1 Processing. CITY agrees that it shall accept and expeditiously process, pursuant to City's regular procedures, complete applications for the future Development Approvals and, if applicable, DEVELOPER'S complete applications for amendments to this Agreement, to the Development Plan Approval(s), and to any of the Future Development Approvals (after the same have been initially approved). 4.1.3.2 Other Permits. CITY further agrees to reasonably cooperate with DEVELOPER, at no cost to CITY, in securing any County, State, and Federal participation, permits or authorizations which may be required in connection with Development of the Property that are consistent with the Development Plan and Development Plan Approval(s); provided, that nothing in this Section 4.1.3.2 shall be deemed to require City's assumption of any obligations under any said permits or authorizations. 4.1.3.3 Acquisition of Off-Site Property. CITY shall not postpone or refuse approval of any Future Development Approval because DEVELOPER or a Development Transferee has failed to acquire off-site property required for the construction or installation of City-required public offsite in-1provements. To the extent CITY, DEVELOPER, or a Development Transferee does not Have sufficient title or interest to permit any of such offsite improvements that are such. entity's responsibility to be constructed or installed at the time the application for a Future Development Approval is processed or approved by CITY, DEVELOPER or the Development Transferee shall make a good faith effort to acquire the required property. If DEVELOPER or the Development Transferee is unable to acquire the required property, CITY shall consider in good faith the acquisition of the required property provided that DEVELOPER shall be fully responsible for the total cost of such acquisition(s) including the negotiated land acquisition cost, appraisals, title reports, recording fees, and other reasonable costs when the offsite improvements are required to implement mitigation measures for the Development. If CITY is unable to acquire the required property by negotiation or condemnation within the time frame provided for in Government Code Section 66462.5, CITY shall continue to issue the Future Development Approval(s) for the Property despite the :.Fact that the offsite improvement has not been completed except for required mitigation measures. Notwithstanding the foregoing, City's obligation to continue to issue the Future Development Approvals as provided for in this Section is contingent 12 upon: (i) DEVELOPER or the Development Transferee submitting the improvement plans required for the improvement to CITY; and (ii) consistent with Government Code Section 66462.5, DEVELOPER or the Development Transferee entering into a mutually acceptable agreement with CITY that requires DEVELOPER or the Development Transferee to pay or reimburse or secure the future payment or reimbursement of CITY for DEVELOPER'S fair share of the costs incurred in acquiring the land and constructing the applicable offsite improvement(s) at such time as CITY acquires the required land. 4.1.3.4 SubdivisionMaps. Pursuant to Government Code Section 66452.6(x)(1), the term of Tentative Tract Map 17280 shall be extended to a time coincident with. Ten of this Agreement. In addition, DEVELOPER is advising City of DEVELOPER'S intent to file multiple Phased Final Maps relating to the Tentative Tract Map 17280 and/or any other Tentative Map approved for the Property provided that concurrent with the submission of the first final Map, DEVELOPER shall submit a "project phasing plan/final map phasing plan" to the City for review and approval by the City Council. Any subsequent revisions to the "project phasing/final map phasing" shall be subject to City Council approval. The Parties agree that upon the ding of any Tentative Map, Developer shall have the right to file as many Phased Final Maps as Developer elects to file. This Section shall constitute the advance agreement of the Parties to the filing of Pleased Final Maps. The Parties acknowledge that this Agreement and conditions of approval of the Project impose upon Developer final obligations for offsite improvements which exceed the thresholds set forth in Government Code Section 66452.6(a). Therefore, pursuant to Government Code Section 66452.6(a), the term of all Tentative Maps that are approved for all or any portion of the Property shall be extended to a date coincident with the Term and., where not prohibited by State law, with any extension of the Term. 4.1 .3.5 Other Development Approvals. Pursuant to Government Code Section 65863.9, any and all other Development Approvals for any portion of the Project shall automatically be extended for a term ending concurrently with the applicable Tentative Maps for the Project. Pursuant to Section 4.1.3.4, those terms shall be the, same as the Term of this Agreement. 4.2 Reserved Authority. 4.2.1 Reservation of Authority With Respect to future Development Approvals; Future Changes in Development Exactions. Notwithstanding any other provision set forth in this Agreement to the contrary, CITY reserves the right after the Effective Date of this Agreement to change its development standards and Development Exactions applicable to the Property and the Project and to exercise the same degree of discretion and control in its consideration of Future Development Approvals that it would have in the absence of this Agreement to impose conditions under CEQA and other applicable laws and regulations in order to mitigate the Project's impact on the environment, subject to the following limitations: 4.2.1.1 No such fixture changes in City's development standards, Development Exactions, or conditions shall be inconsistent with the Development Plan, the Development Approvals, or any of the provisions set forth in Sections 13 4.1. or 4.7 of this Agreement, nor shall any such future changes materially jeopardize or impair the rights of DEVELOPER hereunder; 4.2.1.2 No change in or increase to any Development Exactions adopted or imposed after the Effective Date with respect to the affected portion of the Property shall apply to the portion of the Project located on said portion of the Property except to the extent the same shall be applicable to similarly situated properties or projects on a Citywide or area-wide basis; and 4.3 Uniform Codes. This Agreement shall not prevent CITY from applying to the Project new uniform construction standards adopted by the State of California as State Codes, such as the Uniform Building Code, National Electrical Code, Uniform Mechanical Code, and Uniform fire Code, provided those same standards are applied to all other development within the City of San .Tuan Capistrano. 4.4 State and Federal Laws and Regulations. DEVELOPER shall comply with all applicable state and federal laws and regulations, provided that nothing in this Agreement shall be deemed to limit or restrict the right of DEVELOPER to contest or challenge the validity of any such laws or regulations or their applicability to the Property or the Project, In the event that either CITY or DEVELOPER determines that a state or federal law or regulation prevents the full implementation of the Development Plan and/or any of the Development Plan Approvals, that Party shall provide the other Party with written notice of the state or federal law or regulation, a copy of the law or regulation, and a written statement of the conflicts between such state or federal law or regulation and this Agreement. Promptly thereafter CITY and DEVELOPER shall meet and confer in good faith in a reasonable attempt to determine whether a modification or suspension of this Agreement is required, provided that each Party reserves its discretion with respect thereto. CITY agrees to cooperate with DEVELOPER in resolving the conflict in a manner which minimizes any adverse fiscal or other impact of the conflict upon DEVELOPER, provided only that in no event does CITY agree that in. such event it will materially increase its financial obligations set forth in this Agreement or otherwise materially increase its obligations. CITY also agrees to process in a prompt manner DEVELOPER'S proposed changes to the Development Plan and/or Development 'Ian Approvals as may be necessary to comply with such federal or state law or regulation; provided, however, that the approval of such changes by CITY shall be subject to the discretion. of CITY, consistent with this Agreement. 4.5 Suspension of Development in Order to Protect Health and Safety. Nothing in this Agreement shall be construed to be in derogation of City's police power to suspend. the right of DEVELOPER to develop all or any portion of the Project in order to protect the public health and safety (e.g., in the event of the unavailability of adequate water, wastewater treatment, or storm drainage facilities). In the event that CITY determines that the public health or safely require a suspension of DEVELOPER'S right to develop all or any portion of the Project, the scope of the suspension shall be limited to the extent determined by CITY to be reasonably necessary to protect the public health or safety, the term of the suspension shall be limited to the period of time during which the public health or safety concern continues, and CITY shall exercise reasonable good faith efforts to minimize the period of such suspension to the extent that the cause thereof is within City's control. As soon as is reasonably practicable after the 1.4 commencement of an event that results in a suspension of the rights of DEVELOPER to develop hereunder due to public health or safety concerns, CITY shall provide DEVELOPER with written notice of the existence of such event, a detailed explanation of City's proposed action, and a written statement of any conflicts with the provisions of this Agreement that require a suspension of any of the terms hereof. Promptly thereafter CITY and DEVELOPER shall meet and confer in good faith in. a reasonable attempt to determine whether a modification or suspension of this Agreement in whole or in part, is necessary. In such negotiations, CITY and DEVELOPER agree to preserve the terms of this Agreement and the rights of DEVELOPER as derived from this Agreement to the maximum feasible extent while resolving the conflict. CITY agrees to cooperate with DEVELOPER in a good faith reasonable effort to resolve any such conflict in a manner which minimizes any adverse financial or other impact of the conflict upon DEVELOPER without materially increasing the obligations of CITY under this Agreement. CITY also agrees in such event to process in an expedited manner DEVELOPER'S proposed changes to the Development Plan and any previously issued Development Plan Approvals as may be necessary to appropriately respond to the public health and safety concern with respect to the portion of the Property owned by DEVELOPER; provided, however, that the approval of any such changes by CITY shall be subject to the discretion of CITY, consistent with this Agreement, and no such change shall apply to any other portion of the Property without the prior written consent of the Developer(s) thereof. 4.6 Further Assurances to Developer Regarding Exercise of Reserved Authority. The Parties further acknowledge that the public benefits to be provided by DEVELOPER to CITY pursuant to this Agreement are in consideration for and reliance upon assurances that the Property may be developed in accordance with the Development Plan and the Development Plan Approval(s). Accordingly, while recognizing that the Development of the Property may be affected by the exercise of the authority and rights reserved and excepted as provided in Sections 4.1 ("Vesting") and 4.2 ("Reserved Authority"), DEVELOPER is concerned that normally the judiciary extends to local agencies significant deference in the adoption of rules, regulations, and policies and that in the absence of an express provision set forth in this Agreement such judicial deference might be construed to permit CITY, in violation of the limitations on its reserved authority, to attempt to apply rules, regulations, and policies that are inconsistent with the Development Plan and the Development Plan Approval(s), Accordingly, DEVELOPER desires assurances that CITY shall not, and CI'T'Y agrees that it shall not, further restrict or limit the Development of the Property in violation of this Agreement except in strict accordance with the reserved authority described in Section 4.2 hereof, which exercising of City's reserved authority shall not be considered to be a violation of this Agreement. In this regard, from and after the date that CITY approves the Development Approvals, if DEVELOPER judicially (including by way of a reference proceeding) challenges City's purported exercise of its reserved authority as being in violation of this Agreement, DEVELOPER shall bear the burden of proof in establishing by a preponderance of evidence that such purported exercise by CITY of its Reserved Authority is inconsistent with the Development Plan or the Development Plan Approval(s). 4.7 Vested Right. By entering into this Agreement and relying thereupon, DEVELOPER is obtaining certain vested rights to proceed with the Development anticipated by the Development Plan and the Development Approvals and in accordance with the terms and. conditions of this Agreement (as the same may be amended and supplemented from time to time 15 as expressly set forth herein) provided DEVELOPER satisfies all obligations and performs as required by applicable provisions of this agreement. By entering into this Agreement and relying thereupon, CITY is securing certain public benefits which enhance the public health, safety, and welfare. CITY therefore agrees to the following: 4.7.1 No Conflicting Enactments. Except as provided in Section 4.2 of this Agreement, after the Effective Date neither the City Council nor any other agency of CITY shall enact a rule, regulation, ordinance, or other measure (collectively, "law") applicable to the Property which is inconsistent or in conflict with this Agreement. Not by way of limitation of the foregoing, any law, whether by specific reference to this Agreement or otherwise, shall be considered to be inconsistent and in conflict with this Agreement if it has any of the following effects: 4.7.1.1 It limits or reduces the density or intensity of the Project as provided for in the Development Plan or the Development Plan Approval(s); 4.7.1.2 It applies to the Property, but is not uniformly applied by CITY to all substantially similar development within CITY, or 4.7.1.3 It imposes Development Exactions on the Property other than those in effect on the Effective Date or as otherwise expressly permitted by Section '.2.1 of this Agreement. 4.7.2 Consistent Enactments. By way of enumeration and not limitation, the following types of laws shall be considered consistent and not in conflict with this Agreement: 4.7.2.1 Laws that provide for the relocation of structures within the Property pursuant to an application from DEVELOPER; 4.7.2.2 Laws that provide for changes in the phasing of the Development pursuant to an application from DEVELOPER, and 4.7.2.3 Any law that is expressly authorized by this Agreement. 4.8 Initiative Measures. In addition to and not in limitation of the foregoing, it is the intent of DEVELOPER and CITY that no moratorium or other limitation (whether relating to the Development of all or any part of the Property and whether enacted by initiative or otherwise) affecting site development permits, precise plans, site development plans, building permits, occupancy certificates, or other entitlements to use approved, issued, or granted within CITY, or portions of CITY, shall apply to the Property to the extent such moratorium or other limitation would restrict DEVELOPER'S right to develop the various elements of the Project on the Property in such order and at such rate as DEVELOPER deems appropriate. 5. Amendment of Development AlZre€ment. 5.1 Initiation of Amendment. Any Party may propose an amendment to this Agreement, and all Parties agree that it may be beneficial to enter into additional written 16 agreements or modifications of this Agreement in connection with the Development of the separate components of the Development Plan. Notwithstanding any provision of this Agreement to the contrary, the City shall retain sole discretion as to whether an amendment to the Development Plan or to any conditions of approval contained therein shall require an amendment of this Agreement. 5.2 Procedure. Except as set forth in Section 5.4 below, the procedure for proposing and adopting an amendment to this Agreement shall be the same as the procedure required for entering into this Agreement in the first instance. 5.3 Consent. Except as expressly provided in this Agreement, any amendment to this Agreement shall require the written consent of all affected Parties. An amendment to this Agreement shall not be deemed to affect a portion of the Property if it does not alter,jeopardize, or impair the rights and does not increase the obligations of DEVELOPER that owns said portion of the Property. No amendment to all or any provision of this Agreement shall be effective unless set forth in writing and signed by duly authorized representatives of each of the affected Parties. 5.4 Operating.Memoranda. The Parties acknowledge that refinements and further development of the Development Plan may demonstrate that changes are appropriate with respect to the details and performance of the Parties under this Agreement. The Parties desire to retain a certain degree of flexibility with respect to the details of the Development Plan and with respect to those items covered in general terms under this Agreement. If and when the Parties mutually find that changes, adjustments, or clarifications are appropriate to further the intended purposes of this Agreement, they may, unless otherwise required by law, effectuate such changes, adjustments, or clarifications without amendment to this Agreement through operating memoranda mutually approved by the Parties, which, after execution, shall be attached hereto as addenda and become a part hereof and which may be further changed and amended from time to time. To the maximum extent perrnitted by law, the City Manager shall have the authority, on behalf of CITY, to approve and execute such operating memoranda and the general partner of DEVELOPER shall have the authority, on behalf of DEVELOPER, to approve and enter into such operating memoranda. Unless otherwise required by law or by the Development Plan Approvals, no such changes, adjustments, or clarifications,shall require prior notice or hearing. 5.5 Future Amendments to Development Plan. The following rules apply to future amendments to the Development Plan: 5.6 DEVELOPER'S Written Consent, Any Development Plan amendment to which DEVELOPER does not agree in writing shall not apply to the Property while this Agreement is in effect. 5.7 Concurrent Development Agreement Amendment. Any Development Plan amendment requiring amendment of this Agreement shall be processed concurrently with an amendment to this Agreement. 5.8 Effect of Amendment. Except as expressly set forth in the Development Flan amendment itself or this Agreement, a Development Plan amendment shall not alter, affect, 17 impair, or otherwise impact the rights, duties, and obligations of the Parties set forth in this Agreement. 6. Future Development Approvals. 6.1 Exercise of CITY Discretion. In connection with Future Development Approvals or any other actions which CITY is expressly permitted to take consistent with this Agreement relating to the Property, to the maximum extent permitted by law CITY shall exercise its discretion or take action in a manner which complies and is consistent with the Development Plan, any Development Plan Approval(s) issued by CITY consistent with this Agreement prior to the date CITY takes final action .on the Future Development Approval then in question, and the other terms and conditions set forth herein. 6.2 Concurrent Development Agreement Amendment. Any Future Development Approval requiring amendment of this Agreement, as provided for in Section 5.I hereof, shall be processed concurrently with an amendment to this Agreement. 6.3 Effect of future Deyelo Approvals. To the maximum extent permitted by law and except as expressly set forth in this Section 6.3, a Future Development Approval shall not alter, affect, impair, or otherwise affect the rights, duties, and obligations of any of the Parties set forth in this Agreement. To the extent a future Development Approval is approved in accordance with Sections 7.3, the Future Development Approval shall constitute for all purposes a Development Plan Approval. 7. Miscellaneous Obligations of the Parties. 7.1 DEVELOPER Obligations. As material consideration for City's agreement to enter into and perform its obligations set forth in this Agreement, DEVELOPER agrees that the obligations and benefits set forth in Exhibit "C" (the "Development Benefits and Obligations") shall be provided in accordance with the provisions set forth in Exhibit "C." 7.2 Affordable Housing Implementation Plan. By complying with the Affordable Housing Implementation Program (the "AHIP") attached as Exhibit "D" the City agrees that DEVELOPER satisfies all affordable Dousing requirements with respect to the Project and no additional affordable housing requirements will be imposed. The Parties recognize that from time to time it may become necessary to modify the AHIP due to, among other things, changing economic conditions, state or federal regulations, new or modified lending regulations, market demands, or other unforeseen factors. Modifications of the AI-IIP shall require mutual written consent of the Parties, including approval by the City Council, but that consent and approval shall not be unreasonably withheld. Modifications of the AHIP shall be deemed consistent with and anticipated by this Agreement. As such, modifications of the AHIP shall not be considered amendments to this Agreement. 7.3 Future Development Approvals. To the maximum extent permitted by law CITY agrees to expedite'the processing of the Future Development Approvals, and to use its reasonable good faith efforts to approve or adopt the Future Development Approvals in form and content reasonably satisfactory to DEVELOPER; provided, however, that nothing in this Section 7.3 shall, or shall be construed to, constitute a promise or commitment by CITY to approve the 18 Future Development Approvals or to approve the same with or without any particular requirements or conditions, and provided further that prior to the date that the Future Development Approvals may be so approved, CITY reserves its full legislative police power authority with respect thereto consistent with its obligations set forth elsewhere in this Agreement. To the extent a Future Development Approval is approved that pertains to the Property, the Future Development Approval shall constitute for all purposes a Development Plan Approval. 7.4 Indemnification. Except to the extent of the gross negligence or willful misconduct of CITY and its agents, officers, contractors, attorneys, and employees (the "Indemnified Parties"), DEVELOPER, and with respect to the portion of the Property transferred to them, the Development Transferee agree. to indemnify, defend, and hold harmless the Indemnified Parties from and against each and every claim, action, proceeding, cost, fee, legal cost, damage, award or liability of any nature arising from alleged damages caused to third parties and alleging that CITY is liable therefore as a direct or indirect result of City's approval of or performance under this Agreement. The duties of DEVELOPER under this Section 7.4 are solely subject to and conditioned upon the Indemnified Parties' written request to DEVELOPER to defend and/or indemnify CITY. Without_in any way limiting the provisions of this Section 7.4, the Parties hereto agree that this Section 7.4 shall be interpreted in accordance with the provisions of California Civil Code Section 2778 in effect as of the Effective Date. 8. Relationship of Parties. The contractual relationship between CITY and DEVELOPER is such that DEVELOPER is an independent contractor and not an agent or employee o 'CITY. CITY and DEVELOPER hereby renounce the existence of any form of joint venture or partnership between them, and agree that nothing contained in this Agreement or in any document executed in connection with the Property shall be construed as malting CITY and DEVELOPER joint venturers or partners. 9. Amendment or Cancellation of Agreement. This Agreement may be amended or canceled in whole or in part only by mutual consent of the Parties in the manner provided for in Government Code Section 65868. No amendment or modification of this Agreement or any provision hereof shall be effective unless set forth in writing and signed by duly authorized representatives of each Party hereto. This provision shall not limit any Party's remedies as provided by Section 11. 10. . Periodic Review of Compliance with Agreement. 10.1 Periodic Review. CITY and DEVELOPER shall review this Agreement at least once every 12-month period from the date this Agreement is executed. Within at least thirty(30) days of the annual anniversary of the execution of this agreement, DEVELOPER shall submit a letter report on the status of compliance with the substantive provisions of this agreement. Such periodic review shall be conducted in accordance with Government Code Section 65865.1. 10.2 Good Faith Compliance, During each periodic review, DEVELOPER shall be required to demonstrate good faith compliance with the terms of this Agreement. DEVELOPER agrees to furnish such reasonable evidence of goad faith compliance as CITY, in the exercise of 19 its reasonable discretion, may require. If requested by DEVELOPER, CITY agrees to provide to DEVELOPER a certificate that DEVELOPER or its Development Transferee is in compliance with the terms of this Agreement, provided DEVELOPER reimburses CITY for all reasonable and direct costs and. fees incurred by CITY with respect thereto. 10.3 Failure to Conduct Annual Review. The failure of CITY to conduct the annual review shall not be a Default by DEVELOPER, nor shall any such failure alter, suspend, or terminate any of the Parties' other rights and obligations hereunder. Further, DEVELOPER shall not be entitled to any remedy fora failure by CITY to conduct this annual review. 10.4 Initiation of Review by City Council. In addition to the anneal review, the City Council may at any time initiate a review of this Agreement by giving written notice to DEVELOPER. Within thirty (30) days following receipt of such notice, DEVELOPER shall submit evidence to the City Council of DEVELOPER'S good faith compliance with this Agreement and such review and determination shall proceed in the same manner as is provided in Sections 10.1. and 10.2 and the Development Agreement I.,egislation for the annual review. 10.5 Administration of Agreement. Any final decision by the City's staff concerning the interpretation and administration of this Agreement and Development of the Property in accordance herewith may be appealed by DEVELOPER to the City Council, provided that any such appeal shall be filed with the City Cleric within ten (10) days after DEVELOPER receives written notice that the staff decision is final. The City Council shall render, at a noticed public hearing, its decision to affirm, reverse, or modify the staff decision within thirty (30) days after the appeal is so filed. 10.6 Availability of Documents. If requested by DEVELOPER, CITY agrees to provide to DEVELOPER copies of any documents, reports, or other items reviewed, accumulated, or prepared by or for CITY in connection with any periodic compliance review by CITY, provided DEVELOPER reimburses CITY for all reasonable and direct costs and fees incurred by CITY with respect thereto. CITY shall respond to DEVELOPER'S request on or before ten (10) business days have elapsed from City's receipt of such request. It. Events of Default: Remedies and Termination. 11.1 Defaults by DEVELOPER. If CITY determines on the basis of a preponderance of the evidence that DEVELOPER has not complied in good faith with the terms and conditions of this Agreement, CITY may, by written notice to DEVELOPER., specify the manner in which DEVELOPER has failed to so comply and state the steps DEVELOPER must take to bring itself into compliance. If, within sixty (60) days after the effective date of notice from CITY specifying the manner in which DEVELOPER has failed to so comply, DEVELOPER does not commence all steps reasonably necessary to bring itself into compliance as required and thereafter diligently pursue such steps to completion, then DEVELOPER shall be deemed to be in default under the terms of this Agreement (a "Default"). In such event, CITY may terminate this Agreement pursuant to Government Code Section 65865.1 with respect to the Property.. 11.2 Defaults by CfI`Y. If DEVELOPER determines on the basis of a preponderance of the evidence that CITY has not complied in good faith with the terms and conditions of this 20 Agreement, DEVELOPER may, by written notice to CITY, specify the manner in which CITY has failed to so comply and state the steps CITY must take to bring itself into compliance. If, within sixty (60) days after the effective date of notice from DEVELOPER specifying the manner in which CITY has failed to so comply, CITY does not commence all steps reasonably necessary to bring itself into compliance as required and thereafter diligently pursue such steps to completion, then CITY shall be deemed to be in default under the terms of this Agreement (a "Default"). In such event, DEVELOPER may terminate this Agreement with respect to the Property and, in addition, may pursue any other remedy available at law or equity, including specific performance as set forth in Section 11.3, 11.3 Specific Performance Remedy. Due to the size, nature, and scope of the Development flan, it will not be practical or possible to restore the Property to its natural condition once implementation of this Agreement has begun. After such implementation, DEVELOPER may be foreclosed from other choices they may have had to utilize the Property and provide for other benefits. DEVELOPER has invested significant time and resources and performed extensive planning and processing of the Development Plan and Development Plan Approvals in agreeing to the terms of this Agreement acid will be investing even more significant time and resources in implementing the Development Plan and Development Plan Approvals in reliance upon the terms of this Agreement, and it is not possible to determine the sum of money which would adequately compensate DEVELOPER for such efforts. For the above reasons, CITY and DEVELOPER agree that damages would not be an adequate remedy if CITY fails to carry out its obligations under this Agreement and that DEVELOPER shall have the right to seek and obtain injunctive relief and specific performance as a remedy for any Default by CITY hereunder. CITY and DEVELOPER further acknowledge that, if DEVELOPER fails to carry out its obligations under this Agreement, CITY shall have the right to refuse to issue any permits or other approvals which DEVELOPER otherwise would have been entitled to pursuant to this Agreement that are related to and depend upon DEVELOPER'S performance hereunder. Therefore, City's remedy of terminating this Agreement as to the Property as to which a Default exists shall be sufficient in most circumstances if DEVELOPER fails to carry out its obligations hereunder. Notwithstanding the foregoing, if CITY issues a permit or other approval pursuant to this Agreement in reliance (explicitly stated in writing) upon a specified condition being satisfied in the future, and if DEVELOPER then fails to satisfy such condition, CITY shall be entitled to specific performance for the sole purpose of causing DEVELOPER to satisfy such condition. City's right to specific performance shall be limited to those circumstances set forth above, and CITY shall have no right to seek specific performance to cause DEVELOPER to otherwise proceed with the Development of the Property in any manner. 11.4 Estoppel Certificates. Any Party or the holder or prospective holder of a mortgage or deed of trust secured by an interest in any portion of the Property (a "holder") may at any time during the Term of this Agreement deliver written notice to the other Party requesting an estoppel certificate (the "Estoppel Certificate") stating: 11.4.1 The Agreement is in full force and effect and is a binding obligation of the Parties; 11.4.2 This Agreement has not been amended or modified either orally or in writing or, if so amended, identifying the amendments; 21 11.4.3 No Default exists hereunder, nor would any Default exist with the passage of time or the giving of notice, or both, or, if a Default or failure does exist, the nature thereof and the actions required to be taken by the non-performing Party to cure the Default or prevent the same from occurring; and 11 AA An y other matter affecting the status of the rights and obligations of the Parties hereunder as to which the requesting Party or the holder may inquire. A Party receiving a request for an Estoppel Certificate shall provide a signed certificate to the requesting Party or holder within thirty (30) days after receipt of the request or provide the reason(s) for being unable to provide the Estoppel Certificate to the requesting Party. The City Manager or any person designated by the City Manager may sign Estoppel Certificates on behalf of CITY. The general partner of DEVELOPER may sign on behalf of DEVELOPER, An Estoppel Certificate may be relied on by the holder and by Development Transferees. In the event that one Party requests an Estoppel Certificate from another Party of Parties, the requesting Party shall reimburse the other Party or Parties for all reasonable and direct costs and fees incurred by such Party or Parties with respect thereto. 12. Waivers and Delays. 12.1 No Waiver. Failure by a Party to insist upon the strict performanee of any of the provisions of this Agreement by another Party, and failure by a Party to exercise its rights upon a Default by another Party hereto, shall not constitute a waiver of such Party's right to demand strict compliance by such other Party or Parties in the future for the same, similar, or any different Default. 12.2 Third Parties. The Parties' respective performance obligations hereunder shall not be delayed or excused because of any act or failure to act by a third person, except as provided in Section 10.3. 12.3 Force Majeure. Notwithstanding any other provision set forth in this Agreement to the contrary, DEVELOPER shall not be deemed to be in Default where failure or delay in performance of any of its obligations under this Agreement is caused by floods, earthquakes, other Acts of God, fires, wars, riots or similar hostilities, strikes and other labor difficulties beyond DEVELOPER'S control, DEVELOPER'S inability to obtain required permits or approvals from governmental agencies with jurisdiction over the applicable portions of the Property and the Project, government regulations (including, without limitation, local, state, and federal environmental and natural resource regulations), voter initiative or referenda, moratoria (including, without limitation, any "development moratorium" as that term is applied in Government Code Section 66452.6), litigation, or any other causes that are without the fault and beyond the reasonable control of DEVELOPER. In the case of the requirement for remediation or closure of the former Forster Canyon Landfill, failure of the San Diego Regional Water Quality Control Board (SDRWQCB) to grant approval of the Remedial Action Plan or the Forster Canyon Landfill Closure Plan (FCLCP) and Post-Closure Maintenance Plan (PCMP) shall not be deemed sufficient reason for delay of development of the "Distrito La Novia" site, provided Developer take all prudent and necessary action to secure Pian approval. 22 12.4 Extensions. The Term of this Agreement and the times for performance by DEVELOPER or CITY of any of its obligations hereunder or pursuant to the Development flan Approvals shall be extended by the period of time that any of the events described in Section 12.3 exist and/or prevent performance of such obligations. In addition, the Term shall be extended for delays arising from the following events for a time equal to the duration of each delay which occurs during the Term: 12.4.1 The period of time after the Effective Date during which litigation challenging the validity or enforceability of this Agreement or related to the Development Plan Approvals or having the actual effect of delaying implementation of the Development Plan is pending, including litigation pending on the Effective Date. This period shall include any time during which appeals may be filed or are pending; and 12.42 An y delay resulting from the acts or omissions of CITY or any other governmental agency or public utility and beyond the reasonable control of DEVELOPER. 12.5 .Notice of Delay. DEVELOPER shall give notice to CITY of any delay which .DEVELOPER believes to have occurredas a result of the occurrence of any of the events described in Section 12.3. For delays of six months or longer, this notice shall be given within a reasonable time after DEVELOPER becomes aware that the delay has lasted six months or more, In no event, however, shall notice of a delay of any length be given later than (45) forty five days after the end of the delay or (45) forty five days before the end of the Team, whichever comes first. 13. Notices. All notices required or provided for under this Agreement shall be in writing and delivered in person or sent by certified mail; postage prepaid, return receipt requested. Notices required to be given to CITY shall be addressed as follows_ City of Saxe Juan Capistrano 32400 Paseo Adelanto San Juan Capistrano; CA 92675 Attention: City Manager With a copy to: Woodruff, Spradlin& Smart 555 Anton.Boulevard, Suite 1200 Costa Mesa, CA 92626 Attention: Omar Sandoval, City Attorney 23 Notices required to be given to DEVELOPER shall be addressed as follows: Advanced Real Estate Services 23792 Rockfield Boulevard, Suite 100 Lake Forest, CA 92630 Attn: Robb Cerruti with a copy to: Roger A. Grable 695 Town Center Drive, Suite 1400 Costa Mesa, CA 92626 Any notice given as required herein shall be deemed given only if in writing and upon delivery personally or by independent courier service. A Party may change its address for notices by giving notice in writing to the other Parties as required herein and thereafter notices shall be addressed and transmitted to the new address. CITY shall additionally provide written notice of any Default by DEVELOPER (including, as applicable, any Development Transferee) and any act or omission by DEVELOPER (or such Development Transferee) that would constitute a Default with the passage of time or giving of notice or both, to the holder of any mortgage or deed of trust secured by all or any interest in the Property which (i) delivers a written notice to CITY requesting such notices and (ii) provides CITY with such holder's address(es) for notice purposes. 14. Attornevs' Fees. If legal action is brought by one Party against another Party for breach of this Agreement, including actions derivative from the performance of this Agreement, or to compel performance under this Agreement, the prevailing Party shall be entitled to an award of its costs, including reasonable attorneys' fees. 15. Recordin . This Agreement and any amendment or cancellation hereto shall be recorded against the Property at no cost to CITY, in the Official Records of Orange County by the City Clerk within the period required by Section 65868.5 of the Government Code. Notwithstanding the foregoing, in no event shall any failure or delay in recording this Agreement and any amendment to this Agreement limit or restrict the validity or enforceability of this Agreement. 16. Effect of Agreement on Title. 16.1 Effect on Title. The Parties agree that this Agreement shall not continue as an encumbrance against the Property once the Agreement has terminated. 16.2 Encumbrances and_Lenders' Rights. The Parties hereby agree that this Agreement shall not prevent or limit DEVEI.,OPER (including without limitation any Development Transferee hereunder), at any time or from time to time in any manner, at its or their sole 24 discretion, from encumbering the Property, the improvements thereon, or any portion thereof with any mortgage, deed of trust, sale and leaseback arrangement, or other security device. CITY acknowledges that the holder of any such security interest in all or any portion of the Property may require certain clarifications or interpretations to this Agreement or the Development Plan and CITY agrees, upon request, from time to time, to meet with the applicable Party and/or representatives of any such holder to negotiate in good faith any such request for clarification or interpretation. CITY further agrees that it will not unreasonably withhold its consent to any such requested clarification or interpretation to the extent such clarification or interpretation is consistent with the intent and purpose of this Agreement. A Default under this Agreement shall not defeat, render invalid, diminish, or impair the lien of any such holder. The mortgagee of a mortgage or beneficiary of a deed of trust or holder of any other security interest in the Property or any portion thereof and its or their successors and assigns, including without limitation the purchaser at a judicial or non-judicial foreclosure sale or a person or entity which obtains title by deed-in-lieu of foreclosure (collectively, a "holder") shall be entitled to receive a copy of any notice of :Default (as defined in Section 11.1 hereof) delivered to DEVELOPER as to whose portion of the Property such a Default exists and, as a pre-condition to the institution of legal proceedings or termination proceedings, CITY shall deliver to all such holders written notification of any Default by DEVELOPER in the performance of its obligations under this Agreement which is not cured within sixty (60) days (the "Second Default Notice") and shall allow the holder(s) an opportunity to cure such Defaults as set forth herein. The Second Notice of Default shall specify in detail the alleged Default and the suggested means to cure it. After receipt of the Second Default Notice, each such holder shall have the right, at its sole option, within ninety (90) days to cure such Default or, if such Default cannot reasonably be cured within that ninety (90) day period, to commence to cure such Default, in which case no Default shall exist and CITY shall take no further action. Notwithstanding the foregoing, if such Default shall be a Default which can only be remedied by such holder obtaining possession of the applicable portion of the Property, and such holder seeps to obtain possession, such holder shall have until ninety (90) days after the date obtaining such possession to cure or, if such Default cannot reasonably be cured within such period, then to commence to cure such Default. Further, a holder shall not be required to cure any non-curable. Default of DEVELOPER, and any such Default shall be deemed cured if any lender obtains possession. 17. Severability of Terms. If any term, provision, covenant, or condition of this Agreement .shall be determined invalid, void, or unenforceable, the remainder of this Agreement shall not be affected thereby if the tribunal finds that the invalidity was not a material part of consideration for the affected Party or Parties. The covenants contained herein are mutual covenants. The covenants contained herein constitute conditions to the concurrent or subsequent performance by each 'arty benefited thereby of the covenants to be performed hereunder by such benefited Party. 18. Subsequent Amendment to Authorizing Statute. This Agreement has been entered into in reliance upon the provisions of the Development Agreement Legislation in effect as of the Effective Date. Accordingly, to the extent that 25 subsequent amendments to the Development Agreement Legislation would affect the provisions of this Agreement, such amendments shall not be applicable to this Agreement unless necessary for this Agreement to be enforceable or required by law or unless this Agreement is modified pursuant to the provisions set forth in this Agreement and Government Code Section 65868 as in effect on the Effective Date. 19. Rules of Construction. and Miscellaneous Terms. 19.1 Interpretation and Governing Law. The language in all parts of this Agreement shall, in all cases, be construed as a whole and in accordance with its fair meaning. This Agreement and any dispute arising hereunder shall be governed and interpreted in accordance with the internal laws of'the State of California, with regard to conflict of laws rules. The Parties understand and agree that this Agreement is not intended to constitute, nor shall be construed to constitute, an impermissible attempt to contract away the legislative and governmental functions of CITY, and in particular, City's police powers. In this regard, the Parties understand and agree that this Agreement is a current exercise of City's police powers and except as expressly provided for herein this Agreement shall not be deemed to prevent the future exercise by CITY of its lawful governmental powers over the Property. 19.2 Section Headings. All section headings and subheadings are inserted for convenience only and shall not affect any construction. or interpretation of this Agreement. 19.3 Gender. The singular includes the plural; the masculine gender includes the feminine; "shall" is mandatory, "may" is permissive. 19A Time of Essence. Time is of the essence regarding each provision of this Agreement as to which time is an element. 19.5 Recitals. All Recitals set forth herein are incorporated in this Agreement as though fully set forth herein. 19.6 Entire Agreement. This Agreement constitutes the entire agreement between and among the Parties with respect to the subject matter hereof, and this Agreement supersedes all previous negotiations, discussions, and agreements between and among the Parties with respect thereto. 20. Not for Benefit of Third Parties. This Agreement and all provisions hereof are for the exclusive benefit of CITY and DEVELOPER and their respective Development Transferees and shall not be construed to benefit or be enforceable by any third party, excepting only to the extent of the limited rights provided to the holders of security interests in all or a portion of the Property. 21. Cooperation in Event of 1,egal Challenge. CITY agrees to cooperate with DEVELOPER as may be needed in order to keep this Agreement in full force and effect during the entire Term. In the event of any legal action instituted by a third party or other governmental entity or official challenging the validity or 26 enforceability of any provision of this Agreement or any of the Development Flan Approval(s) (including without limitation any future Development Approvals after the same have been issued by CITY), the Parties hereby agree to cooperate in defending such action and, in this regard, CITY shall not allow its default to he taken in such legal action or otherwise compromise the legal action without DEVELOPER'S prior written consent. In the event of any such litigation, to the maximum extent permitted by law this Agreement shall remain in full force and effect while such litigation, including any appellate review, is pending. Notwithstanding the foregoing, DEVELOPER shall be responsible for all costs, including but not limited to attorney's fees, costs, expert witness fees, and the like, incurred with respect to any such litigation. 27 IN WITNESS WHEREOF, the Parties hereto have executed this Agreement on the day and year dated below. Dated. -44*r.4 11114-- , 2010. CIT OF SANJ ......- "CAPISTRANO, a munici al corporatio rf By: t7 Londres Uso, Mayor AT�EST V City kc jarl APPROVED AS TO FORM-(J City Attorne , Dated: (Q 2010 "DEVELOPER" Advanced Group 99-SJ, a California limited partnership By- Name: Title. By: Name: Title: Advanced Group 03-79-2, a California limited partnership By: Io Name- Title. L-.-',oZ.677 11�3 By: Name: Title: 28 PUBLIC AGENCY FORM OF ACKNOWLEDGEMENT State of California ) County of Orange ) ss. City of San Juan Capistrano ) (Gov't Code 40814 & Civil Code 1181) On November 16, 2010, before me, Maria Morris, City Clerk, personally appeared Dr.Londres Uso Mayo ,who proved to me on the basis of satisfactory evidence to the be person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to zrae that he/she/they executed the same in his/her/their authorized capacity, and that by his/her/there signature on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument . I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. r (SEAL) WITNES ;`y and and official seal. Ma is- is City Clerk OPTIONAL Capacity Claimed by Signers Description of Attached Document Title or Type of Document Mayor Development Agreement (San Juan Title Meadows/Distrito La Novia) Signer is Representing Date of Document November 16, 2010 City of San Juan Capistrano Number of mages: 1 STATE OF CALIFORNIA } } COUNTY OF ORANGE ) On ��1 I o j 6 o _ before ane, �� � � a Notary Public, personal/ py as peared �° �� �,�, > who proved to me on the basis of satisfactory evidence to be the person() whose name( is/ale subscribed to the within instrument and acknowledged to me that he/sWth4y executed the same in his/*/thoir authorized capacity(iis), and that by his/qr/t4ir signature(d) on the instrument the person(}, or the entity upon behalf of which the person() acted, executed the instrument. I declare under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. L � �CCHARM Corr Masson # 17396#6 Notary Nbfio •callforma orangocomtv ` Notary blit STATE OF CALIFORNIA j } COUNTY OF ORANGE ) On before me, a Notary Public, personally appeared , who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which.the person(s) acted, executed the instrument. I declare under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Notary Public 29 STATE OF CALIFORNIA } } COUNTY OF ORANGE } On before me, a Notary Public, personally appeared , who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I declare under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Notary Public STATE OF CALIFORNIA ) COUNTY OF ORANGE } On before me, a Notary Public, personally appeared , who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I declare under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Notary Public 30 EXHIBIT "A-1" LEGAL DESCRIPTION OF THE DISTRITO PROPERTY That certain.real property located in the City of San Juan Capistrano,County of Orange, State of California, described as follows: PARCEL 1: That portion of Parcel 34, in the City of San Juan Capistrano, County of Orange, State of California, as per map Bled in Book 2,Pages 31 to 38 inclusive of Record of Surveys, in the Office of the County Recorder of said County, described as follows: Beginning at the southeast corner of the land described in the deed to John O. Forster, recorded November 11, 1913 in Book 235, Page 116 of Deeds, in the office of the County Recorder of Orange County; thence North 55° 00' 00" East 450 feet to an angle point on the easterly boundary of the land described in said deed; thence North 1' 34' 23" East 685.15 feet along said easterly boundary; thence North 69°49' 13"West 11.4.80 feet;thence South 40'20' 37"West 197.31 feet; thence South 35°30' 09" West 310.32 feet; thence South 31° 51' 20" West 540.09 feet; thence South 32° 55' 00"West 113.84 feet to a point on the south line of the land described in said deed, distant South 870 31' 28" East 330.54 feet from the southwest corner thereof;thence South 87°31' 28"East to the Point of Beginning. Except that portion thereof described as Parcel 1 in the deed to the State of California, recorded October 16, 1967 in Book 8404,Page 963 of Official Records of said county. PARCEL 2: That portion of Parcel. 34, in the City of San Juan Capistrano, County of Orange, State. of California, as per map filed in Book 2, Pages 31 to 38 inclusive of Record of Survey, in the Office of the County Recorder of said County and those portions of Parcels 2 and 5 in said City as per map filed in Book 4,Pages 15 of said Record of Surveys, described as a whole as follows: Beginning at a point South 350 30' 09" West 162.01 feet from the northeasterly terminus of that certain course described as South 35° 30' 09" West 310.32 feet in the Final Order of Condemnation recorded April 15, 1958 in Book 4268, Page 420 of Official Records;thence North 30°03' 15"East 370.07 feet to a point on a non-tangent curve, concave northerly having a radius of 430.00 feet, a radial to said point bears South 120 20' 10"West; thence easterly 172.97 feet along said curve through a central angle of 23° 02' 53" to the beginning of a reverse curve, concave southerly, having a radius of 35.00 feet; thence easterly and southerly 43.06 feet along said curve through a central angle of 70°29' 22'';thence South 30° 13' 21" East 243.76 feet to a point on a non-tangent curve, concave northerly having a radius of 150.00 feet, a radial to said point bears South 58° 02' 06" East; thence westerly 223.05 feet along said curve through a central angle of 85° 11" 59"; thence North V 34' 23" East 209.85 feet to the most easterly corner of the land described in said Final Order of Condemnation; thence North 69°49' 13" West 114.80 feet; thence South 40°20' 37" West 197.31 feet; thence South 35° 30' 09" West 162.01 feet to the Point of Beginning. PARCEL 3: That portion of Parcel 34, in the City of San Juan Capistrano, County of Orange, State of California, as per map filed in Book 2, Pages 31 to 38 inclusive of Record of Survey, in the Office of the County Recorder of said County and those portions of Parcels 2 and 5 in said City as per map filed in Book 4, Pages 15 of said Record of Surveys, being that portion of Parcel 2 of the relinquishment of highway right of way as shown in Book 9252, Page 371 of Official.Records in the Office of said County Recorder, described as follows: 31 Beginning at the easterly terminus of that certain curve in the boundary of said Parcel 2 shown as having a radius of 430.00 feet, a delta of 17° 39" 00" feet and an arc length of 1.32.46 feet, a radial line to said terminus bears South 10°42"43" East; thence easterly 1.10.15 feet along said the easterly continuation of said curve through a central angle of 14°40'39" to a paint in the boundary of said Parcel 2; thence along said boundary the following courses: non-tangent from said curve South 28°24'38" East 130.73 feet to a curve concave westerly having a radius of 150.00 feet, southerly 158.06 feet along said curve through a central angle of 60°22'32", non-tangent from said curve North 30°1.3'21" West 248.76 feet to a curve concave southwesterly having a radius of 35.00 feet and northwesterly 43.06 feet along said curve through a central angle of 70°29'22" to the Point of Beginning. PARCEL 4: 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 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, of Official Records of said county; 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, of said 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 800 26' 1.0"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 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 112.0, Page 253, of Official Records, said point being South 0° 50' 00" West 22 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 feet and 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 296, of Official Records, in the Office of the County Recorder of said County; thence along said northeasterly line, South 411 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° 1 i' 56", an are distance of 37.17 feet to said westerly line; thence, along said westerly line, North V 34' 23"East 25.43 feet to the Point of Beginning. Also excepting therefrom that portion lying southerly of the northerly line of that certain property condemned by the City of San Juan Capistrano, in Case No. 61-1.0-28, a Final Order of Condemnation recorded October 28, 1991, as Instrument No. 91-585872, of said Official Records. 32 EXHIBIT 1FA-2" LEGAL DESCRIPTION OF THE SAN JUAN MEADOWS PROPERTY That certain real property located in the City of San Juan Capistrano, County of Orange, State of California,described as follows: That portion of Lot 5, in the City of San:yuan Capistrano, County of Orange, State of California, as shown on a map filed in Book 4, Page 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, of Official Records of said county; thence North 22° 03' 1.0" West 1.386.08 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 1.61.3, Page 219, of said 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 541 50' 00" East 450 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, of Official Records, said point being South 0° 50' 00" West 22 feet from the southwest conger 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 660 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 feet and 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 I of deed recorded in Book 1603, Page 296, of 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° 1 P 56", an are 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. Also excepting therefrom that portion_ lying northerly of the southerly line of that certain property condemned by the City of San Juan Capistrano, in Case No. 61-10-28, a Final Order of Condemnation recorded October 28, 1991, as Instrument No. 91-585872, of said Official Records. 33 EXHIBIT "B" DEVELOPMENT APPROVALS 1. General Plan Amendment (GPA) 07-01. A General Plan Amendment (GPA) amending the Land Use Element's Land Use Policy Map by changing the land use designation of the 18.7 acre Distrito La Novia site from "Specific Plan/Precise Plan" to "Planned Community;" amending the Land Use Element, "Figure LU-3, Planned Communities" and "Table LU-4, Planned Communities: Allowable Use Guidelines" by removing the San .Tuan Meadows site from the Forster Canyon Comprehensive Development Plan (CDP), merging it with the "Distrito La Novia" site, and creating the "San Juan Meadows-Distrito La Novia Planned Community;" amending "Table LU-4, Development Capacity" to reflect associated acreage, dwelling units, and floor area statistics; and, amending the General Plan Circulation Element to remove Avenida California (Street "A")through the "Meadows"project site from the Master Plan of Streets & Highways. 2. Rezone (RZ) 07-01. A Rezone (RZ) amending the zoning designation of the 9.1 acre "El Parador" portion of the 18.7 Distrito La Novia site from "Specific Plan/Precise Plan" to "Planned Community" and establishing a Comprehensive Development Plan for the proposed "Distrito La Novia-San Juan Meadows Planned Community". The Comprehensive Development Plan would establish use and development standards for the proposed residential, commercial, office, retail and equestrian uses and structures. 3. Tentative Tract Map (TTM) 17280. A Tentative Tract Maps (TTM) application for the "San Juan Meadows" site creating 94 residential lots and a 500-horse commercial equestrian center parcels consistent with the proposed development planning areas for that site. 4. Tentative Tract Map (TTM) 17226. A Tentative Tract Map (TTM) application for the "Distrito La Novia" site creating development parcels substantially consistent with the proposed development planning areas established by the Comprehensive Development Plan. 5. Architectural Control (AC) 07-14. An Architectural Control (AC) for the preliminary site and architectural development plans for the "Distrito La Novia" site proposed to be developed with 75,100 GSF (68,200 NSF) of commercial uses (food market, restaurants, and retail uses), 16,000 GSF (13,750 NSF) of commercial office use (or retail or hotel use); fifty (50) residential apartment units potentially including an on-site "affordability component" (mixed use with residential-over-commercial); and ninety (90) attached, residential condominiums provided that the total number of allowable residential units shall not exceed one-hundred and thirty (130). 6. Grading Plan Modification (GPM) 07-01. A Grading Plan Modification (GPM) to alter the existing topography of the "Distrito La Novia-San Juan Meadows" project with a total of 1,524,280 cubic yards (ey) of cut and fill balanced on-site with approximately 381,360 cy being transferred from the "Distrito La Novia" site across La Novia Avenue to the "San Juan Meadows" site. 34 \l EXHIBIT "C" DEVELOPMENT BENEFITS AND OBLIGATIONS 1. Development Impact Fees i) Limit on Exactions, Mitigation Measures,Conditions and Development Fees. Except for those fees expressly set forth and subject to the changes permitted herein, the City shall charge and impose only those exactions, mitigation measures and conditions, including, without limitation, dedications as are set forth in the Existing Development Approvals, and those Development Impact Fees as set forth in the City of San Juan Capistrano Municipal Code,Title 3, Chapter 3, "Taxes"; Title 9, Chapter 5, "Fees, Deposits, and Bonds.", and Resolution 02-05-21-06(Capistrano Circulation Fee Program.- CCFP), and further listed in Exhibit E. ii) Payment of Development Impact Fees. Developer shall pay all Development Impact Fees which shall be calculated and paid concurrent with the issuance of a certificate of occupancy for a building. iii) Fee Reset Date. All Development Impact Fees shall not exceed the amount set forth in Exhibit E for a period commencing on the issuance of the first grading permit for the Project and ending on the date that is the fourth anniversary of the issuance of the first grading permit or June 30, 2015 whichever occurs first(the "Fixed Fee Period"). On the day after the end of the Fixed Fee Period (the "Fee Reset Date"), all Development Impact Fees shall be recalculated to be equal to the applicable Development Impact Fees generally charged by the City to all developments within the City (regardless of whether such new fees are more or less than the Development Impact Fees previously in effect). 3. Landfill Closure i) City agrees to promptly review and approve grading plans and other improvements plans for the San Juan Meadows site so as to permit the Developer to complete the remediation or closure of the Landfill, if required as expeditiously as possible. ii) Prior to the approval of any final subdivision map for the "Meadows" site (Tentative Tract Map 17280) with the exception of maps solely for the purpose of conveying street right-of-way or public site dedications required by CITY, DEVELOPER will have either completed remediation or closure of the former Forster Canyon Landfill in full compliance with either the San Diego Regional Water Quality Control Board-approved Remedial Action Plan or the Forster Canyon Landfill Closure Plan (FCLCP)and Post-Closure Maintenance Plan (PCMP) whichever is determined applicable by the Regional Board. Developer shall provide evidence of the Board's determination that remediation or closure is not required or shall provide certification of the landfill remediation or landfill closure by the landfill engineer of record to CITY. 35 4. Traffic Improvements i) The following traffic improvements shall be constructed by the Developer: a) Valle RoadlSan Juan Creek Road intersection. Prior to issuance of the first building permit for the proposed project,the project applicant shall pay the fair share fee in order to mitigate the project's cumulative impact at Valle Road/San Juan Creek Road intersection. In addition,the existing traffic signal at that intersection shall be modified to reflect the changed conditions. (MM 4.2-3) b) Camino Capistrano/I 5 SB Ramps intersection. Prior to issuance of the first building permit for the proposed project,the project applicant shall pay a fair share of the construction costs associated with the restriping and/or widening the 1-5 SB Ramps at the Camino Capistrano/1-5 SB Ramps intersection to provide a westbound shared left/right-turn lane and the extension of that lane to accommodate up to 450 feet of storage. The provision of a second left-turn lane will require an additional departure lane on Camino Capistrano. In addition,the existing traffic signal shall be modified to reflect the changed conditions. (MM 4.2- 4) C) La Novia Avenue at Calle Arroyo intersection. Prior to issuance of the first building permit for the proposed project, in order to mitigate the project's direct impact, the project applicant shall widen and restripe the northbound approach of La Novia Avenue to San Juan Creek Road and provide a separate northbound right-turn lane. Modify the existing Class III bike path accordingly and maintain bicycle access and circulation along the east side of La Novia Avenue. (MM 4.2-5). d) Valle Road at La Novia Avenuelf-5 NB Ramps. Prior to issuance of the first building permit for the proposed project,the Developer shall realign the intersection at Valle Road and the La Novia/1.5 NB Ramps and provide a single left-turn lane and a shared through/right-turn lane on all four approaches of the intersection, consistent with planned improvements. In addition,the applicant shall also install a traffic signal at this intersection. (MM 4.2-7). ii) Prior to issuance of any building permit, DEVELOPER shall pay the required Capistrano Circulation Fee Program(CCFP) fee consistent with the fee schedule established as of the date of execution of this agreement. iii) Credits against CCFP program obligations. Pursuant to the provisions of the City's Capistrano Circulation Fee Program(CCFP), DEVELOPER shall be eligible to receive credit for all arterial street improvements completed by DEVELOPER that are reflected on the City's General Plan Circulation Element Map and have been programmed into the Capistrano Circulation Fee Program(CCFP) street improvement program. iv) Modification of San Juan Creek/Valle Road intersection design. The City Council shall retain sole discretion over modifications to the minimum required right-of.--way width for Valle Road will consider right-of-way width reductions to the extent such reduction can be accomplished while meeting the General Plan Circulation Element level of service (LOS) 36 standards and complying with requirements of the countywide Congestion Management Program (CMP)required under State law. v) Private streets. All subdivision streets within the "Meadows" site shall be constructed to meet City standards and shall be privately-maintained by a homeowners association(HOA). 5. Other Improvements i) Recycled water service over-sizing. The Developer shall install off-site recycled water facilities to serve the Project which includes capacity in excess of that required to serve the Project in accordance with City specifications. Water improvement plans shall be subject to review and approval by the City's Public Works Department and shall include costs estimates for both total recycled water improvements and recycled water improvements required to serve only the project. The cost estimates shall be subject to review and approval of the Public Works Department. Within ninety (90) days of the completion of the off-site recycled water facilities, the City shall reimburse the Developer for the cost of the excess capacity in the recycled water facilities. ii) 2505 Reservoir. In conjunction with the final map for the "Meadows" site (Tentative Tract Map 17280), DEVELOPER shall record an irrevocable offer of dedication for the planned 2505 Reservoir at a location and of a size determined by the City's Public Works Department and with necessary access easements,temporary construction easements, and utility easements. ii) The City agrees that the Developer shall be entitled to credits against park fees by the City Council in accordance with Section 9-4.519(i), "Partial credit for private open space" of the Municipal Land Use Code for the value of the land, determined pursuant to Section 9-5.107, "Parkland In-lieu fee" and the cost of the following improvements: a) Approximately 1 mile of publicly-accessible trails,including two publicly- accessible look-out points, with a public access easement granted to the City and with improvements to be maintained by a private property owners association. b) Trail head parking/staging area including approximately 11 public parking spaces. iii) DEVELOPER shall construct all trail improvements, staging areas, and rest stops and shall dedicate all necessary public access easements consistent with the preliminary design plans for the "Distrito" site prior to issuance of any "Certificate of Occupancy" for the Distrito site. Developer shall also construct all trail improvements, staging areas,and rest stops, and shall dedicate all necessary public access easements consistent with the preliminary design plans for the"Meadows" site prior to issuance of any Certificate of Occupancy for the Equestrian Facilities or prior to the issuance of the 5c11 "Certificate of Occupancy" for the"Meadows" site, whichever occurs first. 37 7. Equestrian Facilities i) Potentially significant environmental impacts of the proposed Equestrian Facility have been addressed in the Environmental Impact Report (E1R) at a conceptual design level. However, the proposed Equestrian Facility may produce impacts that become evident at the subsequent preliminary design stage but were not evident at the conceptual design stage. Accordingly, the development of the Equestrian Facility which is subject to the City's Conditional Use Permit (CUP) and Architectural Control (AC)review process, will be subject to appropriate conditions of approval as deemed necessary by the Planning Commission to specifically address potential impacts including arena lighting, public address system use, amplified sound/music, special events, and vector control. As provided by Municipal Code, Section 9-1.201(c), in the event of non-compliance with conditions of approval imposed as part of the Conditional Use Permit (CUP), the City may initiate revocation of said permit pursuant to applicable provisions of the Code. 38 EXHIBIT "Dor AFFORDABLE HOUSING IMPLEMENTATION PROGRAM Twenty-six of the rental units within the "Distrito La Novia" portion of the project, or such other area as may be approved by the San Juan Capistrano Community Redevelopment Agency, or the City of San Juan Capistrano, shall be designated by DEVELOPER as Affordable Units. At least nine (9) of the Affordable Units shall be rented at an Affordable Rental Cost to Very Low Income Households, eight (8) of the Affordable Units shall be rented at an Affordable Rental Cost to Low Income Households and nine (9) of the Affordable Units shall be rented at an Affordable Rental Cost to Moderate Income Households. Definitions: Adjusted for Family Size shall mean a family size of one person plus the number of bedrooms in the unit. Affordable Housing Covenant means a covenant recorded against each of the Affordable Units requiring that the Affordable Units remain available at an Affordable Housing Cost to, and occupied by Low and Very Low Income Households for a period of time as may be determined by the City. Affordable Rental Cost for Low Income Households shall mean annual rent (including a utility allowance) as defined in California Health and Safety Code Section 50053(b)(3) except that for families whose gross income exceeds 60 percent of Area Median Income as Adjusted for Family Size, the Affordable Rental Cost shall be established at an amount equal to a product of 30 percent times the gross income of the Low Income Household. Affordable Rental Cost for Very Low Income Households shall mean annual rent (including a utility allowance) as defined in California Health and Safety Code Section 50053(b)(2). Affordable Rental Cost for Moderate Income Households shall mean annual rent (including a utility allowance) as defined in California Health and Safety Code Section 5005215(b)(4). Affordable Units shall mean multi-family units rented at an Affordable Rental Cost to Very Low, Low and Moderate Income Households. Area Median Income means the area median income for Orange County as published by the California Department of Housing and Community Development. Low Income Household means a household as defined in California Health and Safety Code Section 50079.5.Very Low Income Household means a household as defined in California Health and Safety Code Section 50105. 39 Moderate Income Household means a household as defined in California Health and Safety Code Section 50093. Affordable Housing Covenant Each of the Affordable Units shall be the subject of an Affordable Housing Covenant subject to City review and approval and recorded by DEVELOPER on the project. City Participation in the Affordable Housing Program In accordance with the City's Housing Element, the City may provide assistance to the Project and to the Low and Very Low Income Household tenants of the Project in order to bridge the affordability gap of construction and renting the Affordable Units including but not limited to the following: • Cooperation with the Project Developer in pursuing local, state and federal funds for the construction of the Affordable Units. • Allowing DEVELOPER to meet the Affordable Housing Program requirement of providing twenty-six (26) affordable units through DEVELOPER's purchase of existing housing stock and the imposition of City-approved affordability covenants on such housing consistent with State law. In addition, the City shall have the responsibility for establishing the Affordable Housing Cost for the Affordable Units on an annual basis. The DEVELOPER shall be responsible for qualifying prospective tenants as "Low Income" and "Very Low Income" Households and monitoring the ongoing eligibility of the tenants to occupy the Affordable Units in accordance with the Affordable Housing Covenant and providing a bi-annual report to CITY on implementation of the program. Credits for Additional Affordable Housing To the extent the Developer provides Affordable Units in excess of the number of Affordable Units required herein, the Developer may be able to transfer credit for those Affordable Units to other projects within the City of San Juan Capistrano for which affordable units may be required by law and the City shall credit those Affordable Units to such other project. 40 f, 32400 PASEO ADELANTO f j ' MEMBERS OF THE CITY COUNCIL SAN JUAN CAPISTRANO,CA 92675 (9.49)493-1171 SAM ALLEVATO (949)493-1053 FAX liMPOR8TE0 LAURA FREESE EsraOElinEo t � LARRY KRAMER www,sanjuancapistrano.org 1776 DEREK REEVE JOHN TAYLOR e December 9, 2010 Clerk-Recorder's Office County of Orange P.O. Box 238 Santa Ana, California 92701 Re: Document for Recordinq — Development Agreement San Juan Meadows/Distrito La Novia by and between Cit of San Juan Capistrano and Advanced Group 99-SJ and Advanced Group 03-79-2 The noted document is enclosed for recording: When placed of record, please return the recorded document to this office. Thanky u for your assistance. p Ver ly yours f Y Mei is CfiyV11 e k Cc: Bill Ramsey Scan Juan Capistrano: Preserving the Past to Enhance the Future Prir3ied on 100%recycled paper RECORDING REQUESTED BY AND WHEN RECORDED MAILTO: City Cleric City of San ,Tuan Capistrano 32100 Paseo Adelanto San Juan Capistrano, CA 92675 (Space Above This bine for 12ecorde35 Office Use Only) (Exempt from Recording Fee perCsov.Code§§5103 wid 275$3) DEVELOPMENT AGREEMENT (San Juan Meadows/Distrito la Novia) by and between CITY OF SART JUAN CAPISTRANO and ADVANCED GROUP 99-SJ and ADVANCED GROUP 03-79-2 1 DEVELOPMENT AGREEMENT (San Juan Meadows/Distrito la Novia) This DEVELOPMENT AGREEMENT (San .Tuan Meadows/Distrito la Novia) (the "Agreement") is dated for reference purposes only as of the `Clay of November, '2010, and is being entered into by and between the CITY OF SAN JUAN CAPIS `RANO, a municipal corporation, organized and existing under the laws of the State of California ("City"), and ADVANCED GROUP 99-SJ, a California limited partnership (`Advanced -- San .Tuan Meadows") and ADVANCED GROUP 03-79-2, a California limited partnership ("Advanced Distrito")(collectively "Developer"), pursuant to the authority of Sections 65864 through 65869.5 of the California Government Code (the "Development Agreement Legislation") and Article XI, Section 2, of the California Constitution. City and Developer are sometimes hereinafter referred to as the "Parties." RECITALS This Agreement is predicated upon the following facts: A. These Recitals refer to and utilize certain capitalized and initial capitalized terms which are defined in this Agreement. The Parties intend to refer to those definitions in conjunction with the use thereof in these Recitals. B, The Development Agreement Legislation authorizes CITY to enter into binding development agreements with persons having legal or equitable interests in real property for the development of such property in order to, among other things: ensure high quality development in accordance with comprehensive plans; provide certainty in the approval of development projects so as to avoid the waste of resources and the escalation in the cost of housing and other development to the consumer; provide assurance to the applicants for development projects that they may proceed with their projects in accordance with existing policies, rules, and regulations, subject to the applicable conditions of approval, in order to strengthen the public planning process and encourage private participation in comprehensive planning and reduce the private and public economic costs of development; and encourage and provide for the development of public infrastructure and amenities to support the development of new housing and commercial projects. C. DEVELOPER is the fee owner of that certain real property consisting of approximately 18.7 acres of land area generally located between San Juan Creek Road and La Novia Avenue and east of Valle Road (the "Distrito Property") and 135 acres of land generally located south of La Novia and bordered by the Capistrano Terrace Mobilehome Park to the west and the Glendale Federal Planned Community to the east (the "San Juan Meadows Property"), both in the City of San- Juan Capistrano, County of Orange, State of California, that is more particularly described in Exhibits "A-1" and "A-2" attached hereto and made a part hereof (collectively the "Property") D. DEVELOPER desires to develop the Property in accordance with the provisions of this Agreement, the "Development Plan" or "Project" described herein, and other applicable 2 regulations of the City of San Juan Capistrano and other governmental agencies having jurisdiction over the Property. E. DEVELOPER has applied for, and CITY has approved, this Agreement in order to create a beneficial development project and a physical envirornnent that will conform to and complement the goals of CITY, be sensitive to human needs and values, and facilitate efficient traffic circulation. By its approval and execution of this Agreement CITY has determined that CITY (including, without limitation the existing and future residents of CI'T'Y) will receive the following direct and indirect benefits from the implementation of this Agreement: 1. The improvement of the former Forster Canyon Landfill in accordance with current regulatory requirements to 'benefit the health and safety of the immediate community. 2. A reduction in density from the currently approved San Juan Meadows project by more than 200 residential units. 3. A significant increase in open space over and above the currently approved San .Tuan Meadows project. 4. Over one mile of new equestrian trails linked to the City's trail system together with trailhead parking and two new lookout points. 5. Provision of state of the art equestrian facilities in furtherance of the City's general plan goals for San Juan Capistrano as an equestrian oriented community. F. The development of new tax generating uses for the City of San Juan Capistrano and tax increment for the San Juan Capistrano Community Development Agency, 7. The Project will conform to City's goal to manage growth through the use of, among other things, comprehensive planning and design, project-wide continuity of landscaping and architectural design, state-of-the-art development standards, and planning concepts. S. The traffic and circulation elements of the Development Plan will conform to City's General Plan and will be designed to reduce the impact of the average daily trips generated by the development of the Property on arterial roads and thoroughfares. 9. DEVELOPER has agreed, for the benefit of CITY, that DEVELOPER. will exercise reasonable diligence to prepare and process at DEVELOPER'S expense the following entitlements, all as depicted in Exhibit "13" attached hereto: General. Plan Amendment (GPA) 07-01 Rezone (R7.) 07-01 ® Tentative Tract Map (TTM) 17280 J • Tentative Tract Map (T"l^M) 17226 • Architectural Control (AC) 07-14 • GradingPlan Modification(GPM) 07-01 F. The following actions have been taken with respect to this Agreement and the Project: I. On or about November 16, 2009, CITY accepted as complete DEVELOPER'S application for said applications and entitlements with respect to the Property; 2. On April 23, 2010, following a duly-noticed and conducted public hearing, the Planning Commission of CITY forwarded this agreement to the City Council for final action; 3. Pursuant to the applicable provisions of the California Environmental Quality Act, Public Resources Code Section 21000 et seq., and the regulations promulgated by the Secretary of Resources pursuant thereto (Title 1.4 of the California Code of Regulations, Section 15000 et seq,) (collectively, "CEQA"), by its approval of this Agreement the City Council of CITY has found and determined that all of the significant environmental impacts of the Project were adequately addressed in Environmental Impact Report, State Clearinghouse (SCIS) No. 2008060178 prepared for the Development Plans; 4, On November 2, 201.0, after a duly-noticed and conducted public hearing, the City Council of CITY determined that the provisions of this Agreement are consistent with the General Plan of CITY; and 5. On November 2, 2010, after a duly-noticed and conducted public hearing, the City Council of CITY introduced Ordinance No. 976 approving and authorizing the execution of this Agreement and on November 16, 2010, the City Council adopted said Ordinance (hereinafter the "Authorizing Ordinance"), a copy of which Authorizing Ordinance is on file in the City Clerk's office at City Hall. G. In consideration of the substantial public improvements and benefits to be provided by DEVELOPER and the Project, and in order to strengthen the public planning process and reduce the economic risk of development, by this Agreement CITY intends to provide to DEVELOPER the assurance that it can proceed with development of the Project for the Term of this Agreement pursuant to the terms and conditions of this Agreement and in accordance with the City's General Plan, ordinances, policies, rules, and regulations existing as of the Effective Date. In reliance on City's covenants in this Agreement concerning development of the Property, DEVELOPER has and will in the future incur substantial costs in site preparation and the construction and installation of major infrastructure and facilities in order to make the Development flan feasible. 4 H. Pursuant to Section 65867.5 of the Development Agreement Legislation, the City Council has found and determined that: (i) this Agreement and the Development Plan for the Project implement the goals and policies of City's General Plan, provide balanced and diversified land uses and impose appropriate standards and requirements with respect to land development and usage in order to maintain the overall quality of life and the environment within the City of San .Tuan Capistrano, (ii) this Agreement is in the best interests of and not detrimental to the public health, safety, and general welfare of CITY and its residents; (iii) adopting this Agreement is consistent with City's General Plan and constitutes a present exercise of City's police power; and (iv) this Agreement is being entered into pursuant to and in compliance with the requirements of Section 65867 of the Development Agreement Legislation, I. CITY and DEVELOPER agree that it may be beneficial to enter into additional agreements or to modify this Agreement with respect to the implementation of the separate components of the Development Plan when more information concerning; the details of each component is available, and that this Agreement should expressly allow for such contemplated. additional agreements and modifications to this Agreement. AGREEMENT NOW, THEREFORE, pursuant to the authority contained in the Development Agreement Legislation, as it applies to CITY, pursuant to Article XI, Section 2 of the California Constitution, and in consideration of the foregoing recitals of fact, all of which are expressly incorporated into this Agreement, the mutual covenants set forth in this Agreement, and for the further consideration described in this Agreement, the Parties agree as follows: 1. Definitions. The following words and phrases are used as defined terms throughout this Agreement and each defined term shall have the meaning set forth below: 1.1 Authorizing Ordinance. "Authorizing Ordinance" means Ordinance No. 976 approving this Agreement. 1.2 CEQA. "CEQA" has the meaning ascribed to that term in Recital F.3. of this Agreement. 1.3 CITY. "CITY" means the City of San Juan Capistrano, a California municipal corporation, duly organized and existing under the Constitution and laws of the State of California, and all of its officials, employees,agencies, and departments. 1.4 City Council. "City Council" means the duly elected and constituted City council of CITY, 1.5 Default. "Default" has the meanings ascribed in Section 1 l of this Agreement, as applicable. 1.6 Develop or Development or Developing, "Develop" or "Development" or "Developing" means the improvement of the Property for purposes consistent with the 5 Development Plan, including, without limitation.- subdividing, grading, the construction of infrastructure and public facilities related to the Development flan., the construction of structures and buildings, and the installation of landscaping, all in accordance with the provisions of this Agreement, but does not include the maintenance, repair, reconstruction, or redevelopment of any building, structure, improvement, or facility after the initial construction and completion thereof. L7 Developer. "Developer" means, Advanced San Juan Meadows and Advanced Distrito, all successors in interest, in whole or part, to the right, title, and interest of any of such entities in and to this Agreement with respect to all or any portion of the Property owned by them. 1.8 Development Agreement Legislation. "Development Agreement Legislation" means Sections 65864 through 65869.5 of the California Government Code as it exists on the Effective Date. 1.9 Development Exactions. "Development Exactions" means any requirement of CITY for the dedication of land (including without limitation through the encumbrance of land with an easement or use restriction in favor of a public agency, the public, or a private non-profit entity), the construction or improvement of public improvements or facilities (including without limitation improvements or facilities located on land that is encumbered with an easement or use restriction in favor of a public agency, the public, or a private non-profit entity), or the formation of any financing district and/or payment of any special taxes, assessments, or fees, of whatever amount and however denominated, in order to provide any such public improvements or facilities in conjunction with Development or to lessen, offset, mitigate, or compensate for the impacts of development on the environment or other public interests. 1.10 Development Impact Fees. "Development Impact pees" means the monetary consideration, other than a tax or assessment charged by the City in connection with mitigating the Project-specific impacts of the Project and development of the public facilities related to development of the Project, including those fees, calculated on the basis of the number of residential units or square footage of non-residential development to be constructed, as set forth on Exhibit "C" attached hereto. Development Impact Fees do not include Fair Share Fees or Processing Fees, 1.11 Development Plan. "Development Plan" means the plan for Developing the Project on the Property in accordance with. this Agreement, the Development Plan Approval(s), and the Future Approvals. As of the Effective Date, the Development flan consists of the provisions of City's General Plan (as amended by the Development Plan Approvals) applicable to the Property, the narrative description of the Project set forth in Exhibit B to this Agreement; and the express provisions set forth in this Agreement that define or describe the Project. The Future Development Approvals automatically shall become a part of the Development Plan and included within the scope of DEVELOPER'S vested rights provided for in this Agreement without the need for any amendment of this Agreement when the sane are issued or approved by CITY and become effective. Each of the documents memorializing the Development Plan is {or will be) maintained in the official records of CITY and shall be utilized whenever required to interpret or apply this Agreement. 6 1.12 Development Plan Approval(s). "Development Plan Approval(s)" means the approvals of the City Council described in Exhibit "B" hereto insofar as the same relate to the Property and the Development Plan, including those amendments to this Agreement made in accordance with Section 5 hereof, those amendments to the Development Plan Approvals made in accordance with Section 5.5 hereof, and those Future Development Approvals made in accordance with Section 6.1 hereof, 1.13 Development Transferee. "Development Transferee" means a person or entity that expressly assumes obligations under this Agreement pursuant to Section 3.1 hereof. 1.14 Effective Date. "Effective Date" means the later of the date the Authorizing Ordinance becomes effective and, if the Agreement or the Project is subject to litigation, the date upon which all such litigation is final and no longer subject to judicial review. 1.15 Existing Development Approvals. "Existing Development Approvals" means the Specific Plan, the EIR,the General Plan. Amendment and Zone Changes and the Comprehensive Development Plan. 1.3.6 Equestrian Facilities. "Equestrian facilities" means commercial and non- commercial facilities for up to 500 horses including, but not limited to, related facilities such as barns, paddocks, arenas, a large animal veterinary clinic, equestrian clubhouse and locker room with restrooms and showers, eating and drinking establishment (in conjunction with equestrian clubhouse. All Equestrian Facilities shall be subject to Section 9-3.515 Equestrian Standards of the Zoning Code, 1.17 Fair Share Fees. "Fair Share Fees" means fees established by the City for the construction of certain traffic improvements based on the .Projects contribution to the need for the improvements pursuant to the Capistrano Circulation Program Traffic Impact lees. 1.18 Future Development Approvals. "Future Development Approvals" means those entitlements and approvals that are: (a) made in accordance with Section 6.1 hereof; and (b) requested by CITY or DEVELOPER in order to authorize the Development to occur. upon the Property in a .manner consistent with the Development Plan Approval(s). By way of enumeration, and not limitation of the foregoing, the Future Development Approvals include the approvals referred to in Section 6.1 and such other development permits, development plan reviews, use permits, variances, grading permits, building permits, and occupancy permits that are required as a condition to DEVELOPER'S right to Develop all or any portion of the Project. There is no intention to include any approvals that are beyond the implementation of the Development Plan Approvals listed on Exhibit B. 1.19 On-Site Improvements. "On-Site Improvements" means physical infrastructure improvements or facilities that are or will be located on the Property. Certain On-Site Improvements may be specifically addressed in this, Agreement. 1.20 Party or Parties. "Party" means either CITY or DEVELOPER, as the context dictates, and "Parties" means CITY and DEVELOPER. 7 1.21 Permitted Transferees. "Permitted Transferees" means a person or entity (i) that controls, is controlled by or is under common control with a Developer, (ii) that is a wholly owned subsidiary of a Developer, or (iii) if an entity, one that results from the merger of a Developer with such other entity and the entities described in Section 3.1. 1.22 Pre-Qualified Developer. "Pre-Qualified Developer" means a publicly traded builder or developer or a privately held builder with a minimum net financial worth of Five .Million Dollars and who has constructed at least 200,00 square feet of residential or commercial development, or any combination thereof, during the preceding five year period. 1.23 Project phasing plan/:final map phasing plan. "Project phasing plan/final map phasing plan" means a plan(s) that depict(s) the chronological sequence of all site improvements and the associated chronological sequence of all final subdivision maps. 1.24 Property. "Property" means the Property referred to in Recital C and more particularly described in Exhibit "A" to this Agreement. 1.25 Planning Commission. "Planning Commission" means. the duly appointed and constituted planning commission of CITY 1.26 Project. "Project" has the .meaning ascribed in Recital E, The conceptual planning elements of the Project are more specifically described in Exhibit "B" hereto. 1.27 Property. "Property" means the Property referred to in Recital C and more particularly described in Exhibits "A-1" and "A-2" to this Agreement. It is further understood that the identity of the parcels included within the definition of the "Property" maybe modified from time to time pursuant to Section 2.4 of this Agreement. 1.28 Remedial Action Plan. "Remedial Action Plan" means the plan for the remediation of the former Forster Canyon landfill, with the consent and approval of the proper California regulatory agencies including the California Regional Water Quality Control Board- San Diego Region, if required. 1.29 Term. "Term" means the period of time that this Agreement remains in effect with respect to the Property or any portion thereof, as provided in Section 2.3, 2. General Provisions. 2.1 Binding Covenants. The provisions of this Agreement to the extent permitted by law shall constitute covenants which shall run with the Property for the benefit thereof, and the benefits and burdens of this Agreement shall bind and inure to the benefit of the Parties and all successors in interest to the Parties hereto. 2.2 Interest of Developer. As of the date this Agreement is being executed by the Parties, Developer represents that Developer is the legal owner of the Property. 2.3 Term. Subject to the provisions of Section 2.4 of this Agreement, the initial term (hereinafter called "Terre") of this Agreement shall commence on the Effective Date and shall 8 terminate at the end of the day immediately preceding the sixth (5th) anniversary of the affective Date, subject to the termination provisions set forth herein; provided5 however, that in no event shall the initial term exceed ten years. So long as DEVELOPER is not in Default of this Agreement and the Agreement has not been otherwise terminated, DEVELOPER may, without the prior written consent of CITY, extend the Term for one (1) additional period of four (4) years; and provided further that with respect to such 4-year extension option, DEVELOPER shall give CITY written notice of its intent to extend the Term not more than one hundred eighty (180) days and not less than sixty (60) days before the end of the initial Term provided that all Distrito improvements and buildings situated within the Community Redevelopment Agency (RDA) planning area have been constructed consistent with Development Plans, Furthermore, in order to allow the development of the "Distrito" site to proceed independent of the closure of the Forster Canyon Landfill and recognizing that the project amass grading requires net cut from the "Distrito" site and net fill to the "'Meadows" site, CITY will.permit DEVELOPER to stockpile soil from the "Distrito" site onto the "Meadows" site subject to DEVELOPER securing all required permits and paying all applicable fees associated with such stockpiling. 2.4 Termination, This Agreement shall be deemed terminated and of no further effect upon the occurrence of any of the following events: 2.4.1 If termination occurs pursuant to any specific provision of this Agreement; or, 2.4.2 As to any separate legal lot(s) or parcel(s) within the Property, upon the completion of Development on and with respect to said lot(s) or pareel(s) pursuant to the terms of this Agreement and City's issuance of all required occupancy permits or final inspections, as applicable, and acceptance of all dedications and improvements required to complete such Development; or 2.4.3 Entry after all appeals have been exhausted of a final judgment or issuance of a final order directed to CITY invalidating this Agreement. The termination of this Agreement in its entirety or with respect to a particular lot(s) or parcel(s) shall not affect any right or duty of DEVELOPER arising from a source other than this Agreement. In the event. this Agreement terminates in its entirety or with respect to a particular lot(s) or parcel(s), and notwithstanding any other provision set forth herein, upon request by DEVELOPER, or any other successor or assignee of either of them, CITY shall cooperate, at no cost to CITY, in executing in recordable form a document prepared by the requesting party that confirms the termination of this Agreement with respect to the Property or applicable portion thereof. 3. Transfers and Assignment 3.1 Right To Assign. Developer shall not assign all or any part of this Agreement without the prior written approval of the City. Such written approval by the City shall not be unreasonably withheld, provided that: (a) if Owners' proposed assignee is an entity, 9 such entity shall be legally formed and qualified to conduct business in the State of California; (b) Owners shall have delivered evidence to City that Owners' proposed assignee has the ability to comply with the Agreement; (c) Owners and its/their assignee execute an assigru-hent and assumption agreement pursuant to which the assignee expressly assumes all of Owners' obligations under the Agreement; and (d) City shall bear no expenses in connection with such assignment. Notwithstanding any other provision of this Agreement, Owners need not obtain the prior written approval of City for the assignment of this Agreement to a limited liability company, limited partnership or corporation wholly-owned by, or under common control with, Owners. Notwithstanding any provision of this Agreement to the contrary, City approval of a Transfer or other assignment of any portion of the Property under this Agreement shall not be required in connection with any of the following provided that such person or entity transferee assumes in writing all of the obligations of such Developer under this Agreement and notifies City in writing of the same: 3.1.1 Any transfer to an entity or entities in which Developer retains a minimum of fifty-one percent(S 1%) of the ownership or beneficial interest and retains management and control of the transferee entity or entities. 3.1.2 The conveyance or dedication of any portion of the Property to City or other appropriate governmental agency;or the granting of easements or permits to facilitate construction or operation of the public improvements related to the Project. 3.i.3 The grant of a deed of trust to secure the funds necessary for land acquisition,,construction and permanent financing of the Project. In the event of an assignment by an Developer under the foregoing provisions not requiring City's prior approval, Developer nevertheless agrees that at least thirty (30) days prior to such. assignment it shall give written notice to City of such assignment and satisfactory evidence that the assignee has assumed the obligations of this Agreement. 3.2 City Consideration of Requested Transfer. City agrees that it will consider a written request for approval of a Transfer, and such approval shall not be unreasonably withheld, delayed or conditioned, provided that: (a) if Owners' proposed assignee is an entity, such entity shall be legally for-red and qualified to conduct business in the State of California, (b) Owners shall have delivered evidence to City that Owners' proposed assignee has the ability to comply with the Agreement; (c) Owners and its/their assignee execute an assignment and assumption agreement in form reasonably satisfactory to City's legal counsel pursuant to which the assignee expressly assumes all of Owners' obligations under the Agreement; and (d) City shall bear no expenses in cormection with such assignment.. Such request shall be accompanied by sufficient evidence regarding the proposed transferee's development qualifications and experience, and its financial commitments and resources, in sufficient detail to enable City to evaluate the proposed assignee pursuant to the criteria set for the herein, as determined by City, Within thirty (30) days after the receipt of a Developer's written request for City approval of a Transfer, City shall either approve or disapprove such proposed Transfer or shall respond in 10 writing by stating what further information, if any, City reasonably requires in order to determine whether or not to grant the requested approval. Upon receipt of such a response, Developer shall promptly furnish to City such further information as may be reasonably requested. 3.3 Assignee Subject To Terms Of Agreement. Following an approved Transfer, the Developer Transferee's exercise, use; and enjoyment of that portion of the Property so transferred shall be subject to the terms of this Agreement to the same extent as if the Developer Transferee was one of the Developers. The burdens of this Agreement shall be binding upon, and the benefits of this Agreement shall inure to, all permitted successors in interest to the Parties to this Agreement. All provisions of this Agreement shall be enforceable as equitable servitudes and constitute covenants running with the land. Each covenant to do or refrain from doing some act hereunder with regard to development of the Property: (a) is for the benefit of and is a burden upon every portion of the Property, (b) runs with the Property and each and every portion thereof, and (c) is binding upon each party, each of Developer's Transferees during their respective ownership of the Property or any portion thereof. 3.4 Release Upon Transfer. If the City's approval of an assignment is required, then upon the written consent of the City to an Developer's partial or complete assignment of this Agreement (which consent shall not be unreasonably withheld, conditioned or delayed), or in the event of an assignment to a Peru-fitted Transferee or a Pre-Qualified Developer, upon the express written assumption, in a form approved by the City, by the Developer Transferee, the transferring Developer shall be relieved of its legal duty to perform such assigned obligations, except to the extent such Developer is in default hereunder with respect to the particular assigned obligations prior to said transfer. 4. Development Provisions. 4.1 Vesting. 4.1.1 Project. CITY covenants DEVELOPER has and shall have the right to develop the Project on the Property consistent with the Development Plan and the Development Plan Approvals, including, without limitation, the future Development Approvals after the same have been issued or approved by CITY and become effective ("vested right"). 4.1.2 Limits on Develol)ment. The California Supreme Court held in Pardee Construction Cornpany v, City of Camarillo, 37 Cal.3d 465 (1984), that the failure of the parties to address certain Iii-nits on a City's ability to condition, restrict, or regulate a development allowed a later adopted initiative to restrict the development. This Agreement is intended to cure that deficiency by expressly addressing the tinning for the Development, the vested rights afforded by this Agreement, and the scope of City's reserved. authority described in Section 4.2 hereof. Except as expressly set forth in the Development Plan and Development Plan Approvals), regardless of any future enactment, whether by initiative or otherwise, DEVELOPER shall have the vested right to Develop the various components of the Project in such order, at such rate, in one phase or in multiple phases, and at such times as DEVELOPER deems appropriate within the exercise of its subjective business judgment. Specifically, CITY agrees that DEVELOPER shall be entitled to apply for and receive the Future Developi-hent Approvals and to Develop and use the Property at any time, provided that such application is 11 made and such Development occurs in accordance with this Agreement and the other Development Plan Approval(s). No future amendment of any CITY law and no future adoption of any CITY law or other action that purports to limit the scope, rate, or timing of Development on the Property or to alter the sequencing of the Development in a manner inconsistent with the Development Plan or the Development Plan Approval(s) (including without limitation the Future Development Approvals when issued by CITY), whether the same are adopted or imposed by the City Council or through the initiative or referendum process, shall apply to the Property. Notwithstanding the foregoing, nothing in this Section 4.1 shall limit or restrict City's reserved authority as described in Section 4.2. 4.1.3 Entitlements Permits. and AMprovals - Coo enation. 4.13.1 Processing. CITY agrees that it shall accept and expeditiously process, pursuant to City's regular procedures, complete applications for the Future Development Approvals and, if applicable, DEVELOPER'S complete applications for amendments to this Agreement, to the Development Plan Approval(s), and to any of the Future Development Approvals (after the same have been initially approved). 4.1.3.2 Other Permits. CITY further agrees to reasonably cooperate with DEVELOPER, at no cost to CITY, in securing any County, State, and Federal participation, permits or authorizations which may be required in connection with Development of the Property that are consistent with the Development Plan and Development flan Approval(s); provided, that nothing in this Section 4.1.3.2 shall be deemed to require City's assumption of any obligations under any said permits or authorizations. 4.1.3.3 Acquisition of Off-Site Property. CITY shall not postpone or refuse approval of any Future Development Approval because DEVELOPER or a Development Transferee has failed to acquire off-site property required for the construction or installation of City-required public offsite improvements. To the extent CITY, DEVELOPER, or a Development Transferee does not have sufficient title or interest to permit any of such offsite improvements that are such entity's responsibility to be constructed or installed at the time the application for a Future Development Approval is processed or approved by CITY, DEVELOPER or the Development Transferee shall make a good faith effort to acquire the required property. If DEVELOPER or the Development Transferee is unable to acquire the required property, CITY shall consider in good faith the acquisition of the required property provided that DEVELOPER shall be fully responsible for the total cost of such acquisition(s) including the negotiated land acquisition cost, appraisals, title reports, recording fees, and other reasonable costs when the offsite improvements are required to implement mitigation measures for the Development. If CITY is unable to acquire the required property by negotiation or condemnation within the time frame provided for in Government Code Section 66462.5, CITY shall continue to issue the Future Development Approval(s) for the Property despite the fact that the offsite improvement has not been completed except for required mitigation measures, Notwithstanding the foregoing, City's obligation to continue to issue the Future Development Approvals as provided for in this Section is contingent 12 upon: (i) DEVELOPER or the Development Transferee submitting the improvement plans required for the improvement to CITY; and (ii) consistent with Government Code Section 66462.5, DEVELOPER or the Development Transferee entering into a mutually acceptable agreement with CITY that requires DEVELOPER or the Development Transferee to pay or reimburse or secure the future payment or reimbursement of CITY for DEVELOPER'S fair share of the costs incurred in acquiring the land and constructing the applicable offsite improvement(s) at such time as CITY acquires the required land. 4.1.3.4 Subdivision Maps. Pursuant to Government Code Section 66452.6(a)( ), the term of Tentative Tract Map 17280 shall be extended to a time coincident with Term of this Agreement. In addition, DEVELOPER is advising City of DEVELOPER'S intent to file multiple Phased final Maps relating to the Tentative Tract Map 17280 and/or any other Tentative Map approved for the Property provided that concurrent with the submission of the first Final Map, DEVELOPER shall submit a "project phasing plan/final map phasing plan" to the City for review and approval by the City Council. Any subsequent revisions to the "project phasing/final neap phasing" shall be subject to City Council approval. The Parties agree that upon the filing of any Tentative Map, Developer shall have the right to file as many Phased Final Maps as Developer elects to file. This Section shall constitute the advance agreement of the Parties to the filing of Phased Final Maps. The Parties acknowledge that this Agreement and conditions of approval of the Project impose upon Developer final obligations for offsite improvements which exceed the thresholds set forth in Government Code Section 66452.6(a). Therefore, pursuant to Government Code Section 66452.6(a), the term of all Tentative Maps that are approved for all or any portion of the Property shall be extended to a date coincident with the "ferny and, where not prohibited by State law, with any extension of the Tern. 4.1.3.5 Other Development Approvals. Pursuant to Government Code Section 65863.9, any and all other Development Approvals for any portion of the Project shall automatically be extended for a terns ending concurrently with the applicable Tentative Maps for the Project. Pursuant to Section 4.1.3.4, those terms shall be the same as the Term of this Agreement. 4.2 Reserved Authority. 4.2.1 Reservation of Authority With Res ect to Future Development Ap ovals; Future Changes in Uevelo ment Exactions. Notwithstanding any other provision set forth in this Agreement to the contrary, CITY reserves the right after the Effective Date of this Agreement to change its development standards and Development Exactions applicable to the Property and the Project and to exercise the same degree of discretion and control in its consideration of Future Development Approvals that it would have in the absence of this Agreement to impose conditions under CEQA and other applicable laws and regulations in order to mitigate the Project's impact on the environment, subject to the following limitations: 4.2.1,1 No such future changes in City's development standards, Development Exactions, or conditions shall be inconsistent with the Development Plan, the Development Approvals, or any of the provisions set forth in Sections 13 4.1 or 4.7 of this Agreement, nor shall any such future changes materially jeopardize or impair the rights of DEVELOPER hereunder; 4.2.1.2 No change in or increase to any Development Exactions adopted or imposed after the Effective Date with respect to the affected portion of the Property shall apply to the portion of the Project located on said portion of the Property except to the extent the same shall be applicable to similarly situated properties or projects on a Citywide or area-wide basis; and 4.3 Uniform Codes, This Agreement shall not prevent CITY from applying to the Project new uniform construction standards adopted by the State of California as State Codes, such as the Uniform Building Code, National Electrical Code, Uniform Mechanical Code, and Uniform Fire Code, provided those same standards are applied to all other development within the City of San Juan Capistrano. 4A State and Federal Laws and Regulation . DEVELOPER shall comply with all applicable state and federal laws and regulations, provided that nothing in this Agreement shall be deemed to limit or restrict the right of DEVELOPER to contest or challenge the validity of any such laws or regulations or their applicability to the Property or the Project. In the event that either CITY or DEVELOPER determines that a state or federal law or regulation prevents the full implementation of the Development Plan and/or any of the Development Plan Approvals, that Party shall provide the other Party with written notice of the state or federal law or regulation, a copy of the law or regulation, and a written statement of the conflicts between such state or federal law or regulation and this Agreement. Promptly thereafter CITY and DEVELOPER shall meet and confer in good faith in a reasonable attempt to determine whether a modification or suspension of this Agreement is required, provided that each Party reserves its discretion with respect thereto. CITY agrees to cooperate with DEVELOPER in resolving the conflict in a manner which minimizes any adverse fiscal or other impact of the conflict upon DEVELOPER, provided only that in no event does CITY agree that in such event it will materially increase its financial obligations set Corth in this Agreement or otherwise materially increase its obligations. CITY also agrees to process in a prompt manner DEVELOPER'S proposed changes to the Development Plan and/or Development Plan Approvals as may be necessary to comply with such federal or state law or regulation; provided, however, that the approval of such changes by CITY shall be subject to the discretion of CITY, consistent with this Agreement. 4.5 Suspension of Development in Order to Protect Health and Safety. Nothing in this Agreement shall be construed to be in derogation of City's police power to suspend the right of DEVELOPER to develop all or any portion of the Project in order to protect the public health and safety (e.g., in the event of the unavailability of adequate water, wastewater treatment, or storm drainage facilities). In the event that CITY determines that the public health or safety require a suspension of DEVELOPER'S right to develop all or any portion of the Project, the scope of the suspension shall be limited to the extent determined by CITY to be reasonably necessary to protect the public health or safety, the term of the suspension shall be limited to the period of time during which the public health or safety concern continues, and CITY shall exercise reasonable good faith efforts to minimize the period of such suspension to the extent that the cause thereof is within City's control. As soon as is reasonably practicable after the 14 commencement of an event that results in a suspension of the rights of DEVELOPER to develop hereunder due to public health or safety concerns, CITY shall provide DEVELOPER with written notice of the existence of such event, a detailed explanation of City's proposed action, and a written statement of any conflicts with the provisions of this Agreement that require a suspension of any of the terms hereof. Promptly thereafter CITY and DEVELOPER shall meet and confer in good faith in a reasonable attempt to determine whether a modification or suspension of this Agreement in whole or in part, is necessary. In such negotiations, CITY and DEVELOPER agree to preserve the terms of this Agreement and the rights of DEVELOPER as derived from this Agreement to the maximum feasible extent while resolving the conflict, CITY agrees to cooperate with DEVELOPER in a good faith reasonable effort to resolve any such conflict in a manner which minimizes any adverse financial or other impact of the conflict upon DEVELOPER without materially increasing the obligations of CITY under this Agreement. CITY also agrees in such event to process in an expedited manner DEVELOPER'S S proposed changes to the Development Plan and any previously issued Development Plan Approvals as may be necessary to appropriately respond to the public health and safety concern with respect to the portion of the Property owned by DEVELOPER; provided, however, that the approval of any such changes by CITY shall be subject to the discretion of CITY, consistent with this Agreement, and no such change shall apply to any other portion of the Property without the prior written consent of the Developer(s) thereof. 4.6 Further Assurances to Developer Regarding Exercise of Reserved Authoritv. The Parties further acknowledge that the public benefits to be provided by DEVELOPER. to CITY pursuant to this Agreement are in consideration for and reliance upon assurances that the Property may be developed in accordance with the Development Plan and the Development Plan Approval(s). Accordingly, while recognizing that the Development of the Property may be affected by the exercise of the authority and rights reserved and excepted as provided in Sections 4.1 ("Vesting") and 4.2 ("Reserved Authority"), DEVELOPER is concerned that normally the judiciary extends to local agencies significant deference in the adoption of rules, regulations, and policies and that in the absence of an express provision set forth in this Agreement such judicial deference might be construed to permit CITY, in violation of the limitations on its reserved authority, to attempt to apply rules, regulations, and policies that are inconsistent with the Development Plan and the Development Plan Approval(s), Accordingly, DEVELOPER desires assurances that CITY shall not, and CITY agrees that it shall not, further restrict or limit the Development of the Property in violation of this Agreement except in strict accordance with the reserved authority described in Section 4.2 hereof, which exercising of City's reserved authority shall not be considered to be a violation of this Agreement. In this regard, from and after the date that CITY approves the Development Approvals, if DEVELOPER judicially (including by way of a reference proceeding) challenges City's purported exercise of its reserved authority as being in violation of this Agreement, DEVELOPER shall bear the burden of proof in establishing by a preponderance of evidence that such purported exercise by CITY of its Reserved. Authority is inconsistent with the Development Plan or the Development Plan Approval(s). 4.7 Vested Ri rh1. By entering into this Agreement and relying thereupon, DEVELOPER is obtaining certain vested rights to proceed with the Development anticipated by the Development Plan and the Development Approvals and in accordance with the terms and conditions of this Agreement (as the same may be amended and supplemented from time to time 15 as expressly set forth herein) provided DEVELOPER satisfies all obligations and performs as required by applicable provisions of this agreement. Ey entering into this Agreement and relying thereupon, CITY is securing certain public benefits which enhance the public Health; safety, and welfare. CITY therefore agrees to the following: 4,7.1 No Conflicting Enactments. Except as provided in Section 4.2 of this Agreement, after the Effective Date neither the City Council nor any other agency of CITY shall enact a rule, regulation, ordinance, or other measure (collectively, "law") applicable to the Property which is inconsistent or in conflict with this Agreement. Not by way of limitation of the foregoing, any law, whether by specific reference to this Agreement or otherwise, shall be considered to be inconsistent and in conflict with this Agreement if it has any of the following effects: 4.7.1.1 It limits or reduces the density or intensity of the Project as provided for in the Development Plan or the Development Plan Approval(s); 4.7.1.2 It applies to the Property, but is not uniformly applied by CITY to all substantially similar development within CITY; or 4.7.1.3 It imposes Development Exactions on the Property other than those in effect on the Effective Date or as otherwise expressly permitted by lection 3.2.1 of this Agreement. 4.7.2 Consistent Enactments. By way of enumeration and not limitation, the following types of laws shall be considered consistent and not in conflict with this Agreement: 4.7.2.1 Laws that provide for the relocation of structures within the Property pursuant to an. application from DEVELOPER; 4.7.2.2 Daws that provide for changes in the phasing of the Development pursuant to an application from DEVELOPER; and 4.7.2.3 Any law that is expressly authorized by this Agreement. 4.8 Initiative Measures. In addition to and not in limitation of the foregoing, it.is the intent of DEVELOPER and CITY that no moratorium or other limitation (whether relating to the Development of all or any part of the Property and whether enacted by initiative or otherwise) affecting site development permits, precise plans, site development plans, building permits, occupancy certificates, or other entitlements to use approved, issued, or granted within CITY; or portions of CITY, shall apply to the Property to the extent such moratorium or other limitation would restrict DEVELOPER'S right to develop the various elements of the Project on the Property in such order and at such rate as DEVELOPER deems appropriate. 5. Amendment of]Development Agreement. 5.1 Initiation of Amendment. Any Party may propose an amendment to this Agreement, and all Parties agree that it may be beneficial to eater into additional written 16 agreements or modifications of this Agreement in connection with the Development of the separate components of the Development Plan. Notwithstanding any provision of this Agreement to the contrary, the City shall retain sole discretion as to whether an amendment to the Development Plan or to any conditions of approval contained therein shall require an amendment of this Agreement, 5.2 Procedure. Except as set forth in Section 5A below, the procedure for proposing and adopting an amendment to this Agreement shall be the same as the procedure required for entering into this Agreement in the first instance. 5.3 Consent. Except as expressly provided in this Agreement, any amendment to this Agreement shall require the written consent of all affected Parties. An amendment to this Agreement shall not be deemed to affect a portion of the Property if it does not alter,jeopardize, or impair the rights and does not increase the obligations of DEVELOPER that owns said portion of the Property. No amendment to all or any provision of this Agreement shall be effective unless set forth in writing and signed by duly authorized representatives of each of the affected Parties. 5.4 Operating 'Memoranda. The Parties acknowledge that refinements and further development of the Development Plan may demonstrate that changes are appropriate with respect to the details and performance of the Parties under this Agreement. The Parties desire to retain a certain degree of flexibility with respect to the details of the Development Plan and with respect to those items covered in general ten-ns under this Agreement. if and when the Parties mutually find that changes, adjustments, or clarifications are appropriate to further the intended purposes of this Agreement, they may, unless otherwise required by law, effectuate such changes, adjustments, or clarifications without amendment to this Agreement through operating memoranda mutually approved by the Parties, which, after execution, shall be attached hereto as addenda and become a part hereof and which may be further changed and amended from tine to time. To the maximum extent permitted by law, the City Manager shall have the authority, on behalf of CITY, to approve and execute such operating memoranda and the general partner of DEVELOPED shall have the authority, on behalf of DEVELOPER, to approve and enter into such operating memoranda. Unless otherwise required by law or by the Development Plan Approvals, no such changes, adjustments, or clarifications shall require prior notice or hearing. 5.5 f=uture Amendments to Development Plan. The following rules apply to future amendments to the Development Plan: 5,6 DEVELOPER'S Written Consent, Any Development Plan amendment to which DEVELOPER does not agree in writing shall not apply to the Property while this Agreement is in effect, 5.7 Concurrent Development Agreement Amendment, Any Development Plan amendment requiring amendment of this Agreement shall be processed concurrently with an amendment to this Agreement. 5.8 Effect of Amendment. Except as expressly set forth in the Development Plan amendment itself or this Agreement, a Development Plan amendment shall not alter, affect, 17 impair, or otherwise impact the rights, duties, and obligations of the Parties set forth in this Agreement. 6. Future Development Approvals. 6.1 Exercise of CITY Discretion. In connection with Future Development Approvals or any other actions which CITY is expressly permitted to take consistent with this Agreement relating to the Property, to the maximum extent permitted by law CITY shall exercise its discretion or take action in a manner which complies and is consistent with the Development Plan, any Development Plan Approval(s) issued by CITY consistent with this Agreement prior to the date CITY takes final action on the Future Development Approval then in question, and the other terms and conditions set forth herein. 6.2 Conclarrgnt Deyelo n nt Agreement Amendment, Any Future Development Approval requiring amendment of this Agreement, as provided for in Section 5.1 hereof, shall be processed concurrently with an amendment to this Agreement. 6.3 Effect of Future Development Approvals. To the maximum extent permitted by law and except as expressly set forth in this Section 6.3, a Future Development Approval shall not alter, affect, impair, or otherwise affect the rights, duties, and obligations of any of the Parties set forth in this Agreement. To the extent a Future Development Approval is approved in accordance with Sections 7.3, the Future Development Approval shall constitute for all purposes a Development III an Approval. 7. Miscellaneous Obligations of the Parties. 7.1 DEVELOPER_Obligations. As material consideration for City's agreement to enter into and perform its obligations set forth in this Agreement, DEVELOPER agrees that the obligations and benefits set forth in Exhibit "C" (the "Development Benefits and Obligations") shall be provided in accordance with the provisions set forth in Exhibit "C." 7.2 Affordable Housiw4 Im lamentation Plan. By complying with the Affordable Housing Implementation Program (the "AHIP") attached as Exhibit "D", the City agrees that DEVELOPER satisfies all affordable housing requirements with respect to the Project and no additional affordable housing requirements will be imposed. The Parties recognize that from time to time it may become necessary to modify the AHIP due to, among other things; changing economic conditions, state or federal regulations, new or modified lending regulations, market demands, or other unforeseen factors. Modifications of the AHIP shall require mutual written consent of the Parties, including approval by the City Council, but that consent and approval shall not be unreasonably withheld. Modifications of the AHIP shall be deemed consistent with and anticipated by this Agreement. As such, modifications of the AHIP shalt not be considered amendments to this Agreement. 7.3 Future, DevelopLn�ei t A�pproyals. To the maximum extent permitted by law CITY agrees to expedite'the processing of the Future Development Approvals, and to use its reasonable good faith efforts to approve or adopt the Future Development Approvals in form and content reasonably satisfactory to DEVELOPER; provided, however, that nothing in this Section 7.3 shall, or shall be construed to, constitute a promise or commitment by CITY to approve the 18 Future Development Approvals or to approve the same with or without any particular requirements or conditions, and provided further that prior to the date that the Future Development Approvals may be so approved, CITY reserves its full legislative police power authority with respect thereto consistent with its obligations set forth elsewhere in this Agreement. To the extent a future Development Approval is approved that pertains to the Properly, the Future Development Approval shall constitute for all purposes a Development Plan Approval. 7.4 Indemnification. Except to the extent of the gross negligence or willful misconduct of CITY and its agents, officers, contractors, attorneys; and employees (the "Indemnified Parties"), DEVELOPER, and with respect to the portion of the Property transferred to them, the Development Transferee agree: to indemnify, defend, and hold harmless the Indemnified Parties from and against each and every claim, action, proceeding, cost, fee, legal cost, damage, award or liability of any nature arising from alleged damages caused to third parties and alleging that CITY is liable therefore as a direct or indirect result of City's approval of or performance under this Agreement. The duties of DEVELOPER under this Section 7.4 are solely subject to and conditioned upon the Indemnified Parties' written request to DEVELOPER to defend and/or indemnify CITY. Without in any way limiting the provisions of this Section 7.4, the Parties hereto agree that this Section 7.4 shall be interpreted'in accordance with the provisions of California Civil Code Section 2778 in effect as of the Effective Date. 8. Relationship of Parties. The contractual relationship between CITY and DEVELOPER is such that DEVELOPER is an independent contractor and not an agent or employee of CITY. CITY and DEVEl'LOP ER hereby renounce the existence: of any form of joint venture or partnership between them, and agree that nothing contained in this Agreement or in any document executed in connection with the Property shall be construed as making CITY and DEVELOPER joint venturers or partners. 9. Amendment or Cancellation of Agreement. This Agreement may be amended or canceled in whole or in part only by mutual consent of the Parties in the manner provided for in Government Code Section 65868. No amendment or rnodification of this Agreement or any provision hereof shall be effective unless set forth in writing and signed by duly authorized representatives of each Party hereto. This provision shall not limit any Party's remedies as provided by Section 11. 10. , Periodic Review of Compliance with A14reement. 10.1 Periodic Review. CITY and DEVELOPER shall review this Agreement at least once every 12-month period from the date this Agreement is executed. Within at least thirty (30) days of the annual anniversary of the execution of this agreement, DEVELOPER shall submit a letter report on the status of compliance with the substantive provisions of this agreement. Such periodic review shall be conducted in accordance with Government Code Section 65865.1. 10.2 Good Faith Compliance. During; each periodic review, DEVELOPER shall be required to demonstrate good faith compliance with the terms of this Agreement. DEVELOPER agrees to furnish such reasonable evidence of good faith compliance as CITY, in the exercise of 19 its reasonable discretion, may require. If requested by DEVELOPER, CITY agrees to provide to DEVELOPER a certificate that DEVELOPER or its Development Transferee is in. compliance with the terms of this Agreement, provided DEVELOPER reimburses CITY for all reasonable and direct costs and fees incurred by CITY with respect thereto. 10.3 Failure to Conduct Annual Review. The failure of CITY to conduct the annual review shall not be a Default by DEVELOPER, nor shall any such failure alter, suspend, or terminate any of the Parties' other rights and obligations hereunder. Further, DEVELOPER shall not be entitled to any remedy for a failure by CITY to conduct this annual review. 10.4 Initiation of Review.by City..Council. In addition to the annual review, the City Council may at any time initiate a review of this Agreement by giving written notice to DEVELOPER. Within thirty (30) days following receipt of such notice, DEVELOPER shall submit evidence to the City Council of DEVELOPER'S good faith compliance with this Agreement and such review and determination shall proceed in the same manner as is provided in Sections 10.1 and 10.2 and the Development Agreement Legislation for the annual review. 10.5 Administration. of Agreement. Any final decision by the City's staff concerning the interpretation and administration of this Agreement and Development of the Property in accordance herewith may be appealed by DEVELOPER to the City Council, provided that any such appeal shall be filed with the City Clerk within ten (10) days after DEVELOPER receives written notice that the staff decision is final. The City Council shall. render, at a noticed public hearing, its decision to affirm, reverse, or modify the staff decision within thirty (30) days after the appeal is so filed. 10.6 Availability of Documents. If requested by DEVELOPER, CITY agrees to provide to DEVELOPER copies of any documents, reports, or other items reviewed, accumulated, or preparedby or for CITY in connection with any periodic compliance review by CITY, provided DEVELOPER reimburses CITY for all reasonable and direct costs and fees incurred by CITY with respect thereto. CITY shall respond to DEVELOPER'S request on or before ten (10) business days have elapsed from City's receipt of such request. 1.1. Events of Default: Remedies and Termination. 11.1 Defaults by DEVELOPER. If CITY determines on the basis of a preponderance of the evidence that DEVELOPER has not complied in good faith with the terms and conditions of this Agreement, CITY may, by written notice to DEVELOPER, specify the manner in which DEVELOPER has failed to so comply and state the steps DEVELOPER must take to bring;itself into compliance. If, within sixty (60) days after the effective date of notice from CITY specifying the manner in which DEVELOPER has failed to so comply, DEVELOPER does not commence all steps reasonably necessary to bring itself into compliance as required and thereafter diligently pursue such steps to completion, then DEVELOPER shall be deemed to be in default under the terms of this Agreement (a "Default"). In such event, CITY may terminate this Agreement pursuant to Government Code Section 65865.1 with respect to the Property.. 11.2 Defaults by CITY. If DEVELOPER determines on the basis of a preponderance of the evidence that CITY has not complied in good faith with the terms and conditions of this 20 Agreement, DEVELOPER may, by written notice to CITY, specify the manner in which CITY has failed to so comply and state the steps CITY must take to bring itself into compliance. If, within sixty (60) days after the effective date of notice from DEVELOPER specifying the manner in which CITY has failed to so comply, CITY does not commence all steps reasonably necessary to bring itself into compliance as required and thereafter diligently pursue such steps to completion, then CITY shall be deemed to be in default under the terms of this Agreement (a "Default"). In such event, DEVELOPER may terminate this Agreement with respect to the Property and, in addition, may pursue any other remedy available at law or equity, including specific performance as set forth in Section 11.3. 11.3 Specific Performance Remed Due to the size, nature, and scope of the Development Plan, it will not be practical or possible to restore the Property to its natural condition once implementation of this Agreement has begun. After such implementation, DEVELOPER may be foreclosed from other choices they may have had to utilize the Property and provide for other benefits. DEVELOPER has invested significant time and resources and performed extensive planning and processing of the Development Plan and Development Plan Approvals in agreeing to the terms of this Agreement and will be investing even more significant time and resources in implementing the Development Plan and Development Plan Approvals in reliance upon the terms of this Agreement, and it is not possible to determine the sum of money which would adequately compensate DEVELOPER for such efforts. For the above reasons, CITY and DEVELOPER agree that damages would not be an adequate remedy if CITY fails to carry out its obligations under this Agreement and that DEVELOPER shall have the right to seek and obtain injunctive relief and specific performance as a remedy for any Default by CITY hereunder. CITY and DEVELOPER :further acknowledge that if DEVELOPER fails to carry out its obligations under this Agreement, CITY shall have the right to refuse to issue any permits or other approvals which DEVELOPER otherwise would have been entitled to pursuant to this Agreement that are related to and depend upon DEVELOPER'S performance hereunder. Therefore, City's remedy of terminating this Agreement as to the Property as to which a Default exists shall be sufficient in most circumstances if DEVELOPER fails to carry out its obligations hereunder. Notwithstanding the foregoing, if CITY issues a permit or other approval pursuant to this Agreement in reliance (explicitly stated in writing) upon a specified condition being satisfied in the future, and if DEVELOPER then fails to satisfy such condition, CITY shall be entitled to specific performance for the sole purpose of causing DEVELOPER to satisfy such condition. City's right to specific performance shall be limited to those circumstances set forth above, and CITY shall have no right to seek specific performance to cause DEVELOPER to otherwise proceed with the Development of the Property in any manner. 11 .4 Este Certificates. Any Party or the holder or prospective holder of a mortgage or deed of trust secured by an interest in any portion of the Property (a "holder") may at any time during the Term of this Agreement deliver written notice to the other Party, requesting an estoppel certificate (the "Estoppel Certificate") stating: 11.4.1 The Agreement is in full force and effect and is a binding obligation of the Parties; 1.1.4.2 This Agreement has not been amended or modified either orally or in writing or, if so amended, identifying the amendments; 21 11.4.3 No Default exists hereunder, nor would any Default exist with the passage of time or the giving of notice, or both, or, if a Default or failure does exist, the nature thereof and the actions required to be taken by the non-performing Party to. cure the Default or prevent the same from occurring; and 11.4.4 An y other matter affecting the status of the rights and obligations of the Parties hereunder as to which the requesting Party or the holder may inquire. A Party receiving a request for an Estoppel Certificate shall provide a signed certificate to the requesting Party or holder within thirty (30) days after receipt of the request or provide the reason(s) for being unable to provide the Estoppel Certificate to the requesting Party. The City Manager or any person designated by the City Manager may sign Estoppel Certificates on behalf of CITY. The general partner of DEVELOPER may sign on behalf of DEVELOPER, An Estoppel Certificate may be relied on by the holder and by Development Transferees. In the event that one Party requests an Estoppel Certificate from another Party of Parties; the requesting Party shall reimburse the other Party or Parties for all reasonable and direct costs and fees incurred by such Party or Parties with respect thereto. 12. Waivers and Delays. 12.1 No Waiver. Failure by a Party to insist upon the strict performance of any of the provisions of this Agreement by another Party, and failure by a Party to exercise its rights upon a Default by another Party hereto, shall not constitute a waiver of such Party's right to demand strict compliance by such other Party or Paries in the future for the same, similar, or any different Default. 12.2 Third. Parties. The Parties' respective performance obligations hereunder shall not be delayed or excused because of any act or failure to act by a third person, except as provided in Section 10.3. 12.3 Force Majeure. Notwithstanding any other provision set forth in this Agreement to the contrary, DEVELOPER shall not be deemed to be in Default where failure or delay in performance of any of its obligations under this Agreement is caused by floods, earthquakes, other Acts of God, fires, wars, riots or similar hostilities, strikes and other labor difficulties beyond DEVELOPER'S control, DEVELOPER'S inability to obtain required permits or approvals from governmental agencies with jurisdiction over the applicable portions of the Property and the Project, governnnent regulations (including, without limitation, local, state, and federal environmental and natural resource regulations), voter initiative or referenda, moratoria (including, without limitation, any "development moratorium" as that terra is applied in Government Code Section 66452.6), litigation, or any other causes that are without the fault and beyond the reasonable control of DEVELOPER. In the case of the requirement for remediation or closure of the former Forster Canyon Landfill, failure of the San Diego Regional Water Quality Control Board (SDRWQCB) to grant approval of the Remedial Action Plan or the Forster Canyon Landfill Closure Plan (FCLCP) and Post-Closure Maintenance Plan (PCMP) shall .not be deemed sufficient reason for delay of development of the "Distrito La Novia" site, provided Developer take all prudent and necessary action to secure Plan approval. 22 12.4 Extensions, The Term of this Agreement and the times for performance by DEVELOPER. or CITY of any of its obligations hereunder or pursuant to the Development Plan Approvals shall be extended by the period of tune that any of the events described in Section 12.3 exist and/or prevent performance of such obligations. In addition, the Term shall be extended for delays arising from the following events for a time equal to the duration of each delay which occurs during the Term: 12.4.1 The period of time after the Effective Date during which litigation challenging the validity or enforceability of this Agreement or related to the Development Plan Approvals or having the actual effect of delaying implementation of the Development Plan is pending, including litigation pending on the Effective Date. This period shall include any time during which appeals may be bled or are pending; and 12.4.2 An y delay resulting from the acts or omissions of CITY or any other governmental agency or public utility and beyond the reasonable control of DEVELOPER.. 12.5 Notice of Delay. DEVELOPER shall give notice to CITY of any delay which DEVELOPER believes to have occurred as a result of the occurrence of any of the events described in Section 12.3. For delays of six months or longer, this notice shall be given within a reasonable time after DEVELOPER becomes aware that the delay has lasted six months or more. In no event, however, shall notice of a delay of any length be given later than (45) forty .live days after the end of the delay or (45) forty five days before the end of the Term, whichever cones first. 13. Notices. All notices required or provided for under this Agreement shall be in writing and delivered in person or sent by certified mail, postage prepaid, return receipt requested. Notices required to be given to CITY shall be addressed as follows: City of San Juan Capistrano 32400 Paseo Adelanto San Juan Capistrano, CA 92675 Attention: City Manager with a c_oov to: Woodruff, Spradlin & Smart 555 Anton Boulevard, Suite 1200. Costa Mesa, CA 92626 Attention: Oniar Sandoval, City Attorney 23 Notices required to be given to DEVELOPER shall be addressed as follows: Advanced Real Estate Services 23792 Rockfield Boulevard, Suite 100 Lake Forest, CA 926.30 Attn: Robb Cerruti with a copy to: Roger A. Grable 695 Town Center Drive, Suite 1400 Costa Mesa, CA 92626 Any notice given as required herein shall be deemed given only if in writing and upon delivery personally or by independent courier service. A Party may change its address for notices by giving notice in writing to the other Patties as required herein and thereafter notices shall be addressed and transmitted to the new address. CITY shall additionally provide written notice of any Default by DEVELOPER (including, as applicable, any Development Transferee) and any act or omission by DEVELOPER (or such Development "Transferee) that would constitute a Default with the passage of time or giving of notice or both, to the holder of any mortgage or deed of trust secured. by all or any interest in the Property which (i) delivers a written notice to CITY requesting such notices and (ii) provides CITY with such holder's address(es) for notice purposes. 14. Attornevs' Fees. If legal action is brought by one Party against another Party for breach of this Agreement, including actions derivative from the performance of this Agreement, or to compel performance under this Agreement, the prevailing Party shall be entitled to an award of its costs, including reasonable attorneys' fees. 115. Recording. This Agreement and any amendment or cancellation hereto shall be recorded against the Property at no cost to CITY, in the Official Records of Orange County by the City Clerk within the period required by Section 65868.5 of the Government Code. Notwithstanding the foregoing, in no event shall any failure or delay in recording this Agreement and any amendment to this Agreement limit or restrict the validity or enforceability of this Agreement. 16, Effect of Agreement on Title. 16.1 Effect on Title. The Parties agree that this Agreement shall not continue as an encumbrance against the Property once the Agreement has terminated. 1.6.2 Encumbrances and .Lenders' Rights. The Parties hereby agree that this Agreement shall not prevent or limit DEVELOPER (including without limitation any Development Transferee hereunder), at any time or from time to time in any manner, at its or their sole 24 discretion, from encumbering the Property, the improvements thereon, or any portion thereof with any mortgage, deed of trust, sale and leaseback arrangement, or other security device. CITY acknowledges that the holder of any such security interest in all or any portion of the Property may require certain clarifications or interpretations to this Agreement or the Development Plan and CITY agrees, upon request, from time to time, to meet with the applicable Party and/or representatives of any such holder to negotiate in good faith any such request for clarification or interpretation. CITY further agrees that it will not unreasonably withhold its consent to any such requested clarification or interpretation to the extent such clarification or interpretation is consistent with the intent and purpose of this Agreement. A Default under this Agreement shall not defeat, render invalid, diminish, or impair the lien of any such holder. The mortgagee of a mortgage or beneficiary of a deed of trust or holder of any other security interest in the Property or any portion thereof and its or their successors and assigns, including without limitation the purchaser at a judicial or non judicial foreclosure sale or a person or entity which obtains title by deed-in-lieu of foreclosure (collectively, a "holder") shall be entitled to receive a copy of. any notice of Default (as defined in Section 1.L I hereat) delivered to DEVELOPER. as to whose portion of the Property such a Default exists and, as a pre-condition to the institution of legal proceedings or termination proceedings, CITY shall deliver to all such holders written notification of any Default by DEVELOPER in the performance of its obligations under this Agreement which is not cured within sixty (60) days (the "Second Default Notice") and shall allow the holder(s) an opportunity to cure such Defaults as set forth herein. The Second Notice of Default shall specify in detail the alleged Default and the suggested means to cure it. After receipt of the Second Default Nonce, each such holder shall have the right, at its sole option., within ninety (90) days to cure such Default or, if such Default cannot reasonably be cured within.that ninety (90) day period, to commence to cure such Default, in which case no Default shall exist and CTTY shall take no further action. Notwithstanding the foregoing, if such Default shall be a Default which can only be remedied by such holder obtaining possession of the applicable portion of the Property, and such holder seeks to obtain possession, such holder shall have until ninety (90) days after the date obtaining such possession to cure or, if such Default cannot reasonably be cured within such period, then to commence to cure such Default. Further, a holder shall not be required to cure any non-curable Default of DEVELOPER, and any such Default shall be deemed cured if any lender obtains possession. 17. Severabifi of Terms. If any term, provision, covenant, or condition of this Agreement shall be determined invalid, void., or unenforceable, the remainder of this Agreement shall not be affected thereby if the tribunal Inds that the invalidity was not a material part of consideration for the affected Party or Parties. The covenants contained herein are mutual covenants. The covenants contained herein constitute conditions to the concurrent or subsequent performance by each Party benefited thereby of the coveriants to be performed hereunder by such benefited Party. 18. Subsequent Amendment to AuthorizinI4 Statute. This Agreement has been entered into in reliance upon the provisions of the Development Agreement Legislation in effect as of the Effective Date. Accordingly, to the extent that 25 subsequent amendments to the Development Agreement Legislation would affect the provisions of this Agreement, such amendments shall not be applicable to this Agreement unless necessary for this Agreement to be enforceable or required by law or unless this Agreement is modified pursuant to the provisions set forth in this Agreement and Government Code Section 65868 as in effect on the Effective Date. 19. Rules of Construction and Miscellaneous Terms. 19.1 Inter retation and Governing Law. The language in all parts of this Agreement shall, in all cases, be construed as a whole and in accordance with its fair meaning. This Agreement and any dispute arising hereunder shall be governed and interpreted in accordance with the internal laws of the State of California, with regard to conflict of laws rules. The Parties understand and agree that this Agreement is not intended to constitute, nor shall be construed to constitute, an impermissible attempt to contract away the legislative and governmental functions of CITY,. and in particular, City's police powers. In this regard, the Parties understand and agree that this Agreement is a current exercise of City's police powers and except as expressly provided for herein this Agreement shall not be deemedto prevent the future exercise by CITY of its lawful governmental powers over the Property. 19.2 Section Headings. All section headings and subheadings are inserted for convenience only and shall not affect any construction or interpretation of this Agreement. 19.3 Gender. The singular includes the plural; the masculine gender includes the ferninine; "shall" is mandatory, "may" is perr nissive. 19.4 Time of Essence. Time is of the essence regarding each provision of this Agreement as to which time is an element. 19.5 Recitals. All Recitals set forth herein are incorporated in this Agreement as though fully set forth herein. 19.6 Entire Agreement, This Agreement constitutes the entire agreement between and among the Parties with respect to the subject matter hereof, and this Agreement supersedes all previous negotiations, discussions, and agreements between and among the Parties with respect thereto. 20. Not for Benefit of Third Parties. This Agreement and all provisions hereof are for the exclusive benefit of CITY and DEVELOPER and their respective Development Transferees and shall not be construed to benefit or be enforceable by any third party, excepting only to the extent of the limited rights provided to the holders of security interests in all or a portion of the Property. 21, Cooperation in Event of Legal Challenge. CITY agrees to cooperate with DEVELOPER as may be needed in order to keep this Agreement in full force and effect during the entire Term. In the event of any legal action instituted by a third party or other governmental entity or official challenging the validity or 26 enforceability of any provision of this Agreement or any of the Development Plan Approval(s) (including without limitation any Future Development Approvals after the same have been issued by CITY), the Parties hereby agree to cooperate in defending such action and, in this regard, CITY shall not allow its default to be taken in such legal action or otherwise compromise the legal action without DEVELOPER'S prior written consent. In the event of any such litigation, to the maximum extent permitted by law this Agreement shall remain in full force and effect while such litigation, including any appellate review, is pending. Notwithstanding the foregoing, DEVELOPER shall be responsible for all costs, including but not limited to attorney's fees, costs, expert witness fees, and the like, incurred with respect to any such litigation. 27 IN WITNESS WHEREOF, the Parties hereto have executed this Agreement on the day and year dated below. Dated: ( , 2010. CIT OF SAN JUJA 4�`CA.PISTRANO, a rnuniei al corporatio By: !F Londres Uso, Mayor ATTEST City c er APPROVED AS TO FORM�- City Attorne , Dated: ,j (C) J , 2010 "DEVELOPER" Advanced Group 99-SJ, a California limited partnership By. ,� eµ L�.Np Name: 4?,13 Title: By: Name: Title: Advanced Group 03-79-2, a California limited partnership Name: &3 c2";,, ;,�,4 l Title: By: Name: Title: 28 PUBLIC AGENCY FORM OF ACKNOWLEDGEMENT State of California ) County of Orange ) ss. City of San Juan Capistrano ) {Gov't Code 40814 & Civil Code 1181) On November 16, 2010, before me, Maria Morris, City Clerk, personally appeared Dr.Loud res Uso,-Mayo ,who proved tome on the basis of satisfactory evidence to the be person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity, and that by his/her/there signature on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument . I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. (SEAL) WITNESS y and and official seal. Man•a-Ngris, City Clerk OPTIONAL Capacity CIaimed by Signers Description of Attached Document Title or Type of Document Mayor Development Agreement (San. Juan Title Meadows/Distrito La Novia) Signer is RepresentingDate of Document: November 16, 2010 City of San Juan Capistrano Number of Pages: 1 STATE OF CALIFORNIA ) COUNTY OF ORANGE ) On Eollo before me, �� � `� a Notary Public, personally appearedc -,� i-,•�-, _ , who proved to me on the basis of satisfactory evidence to be the person($) whose name(�) is/ate subscribed to the within instrument and acknowledged to me that he/sla, 44y executed the same in his/h�r/thoir authorized capacity(i�s), and that by his/qr/d-Oir signature(l) on the instrument the person(), or the entity upon behalf of which the person() acted, executed the instrument. I declare under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. 'LEist , l Co€r iulon # 1739"6 Notary Public -CCOlfarnta � Orange county �y SC _ a� '\!v)� Notary( blic STATE OF CALIFORNIA ) } COUNTY OF ORANGE ) On before me, a .Notary Public, personally appeared , who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument_ I declare under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Notary Public 29 STATE OF CALIFORNIA } COUNTY OF ORANGE ) On before me, , a Notary Public, personally appeared , who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I declare under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS any hand and official seal. Notary Public STATE OF CALIFORNIA ) COUNTY OF ORANGE ) On before me, a Notary Public, personally appeared , who proved to ane on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I declare under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Notary Public 30 EXHIBIT "A-I f f LEGAL DESCRIPTION OF THE DISTRITO PROPERTY That certain real property located in the City of San Juan Capistrano,County of Orange, State of California, described as follows: PARCEL 1: That portion of Parcel 34, in the City of San Juan Capistrano, County of Orange, State of California, as per map filed.in Book 2, Pages 31 to 38 inclusive of Record.of Surveys, in the Office of the County Recorder of said County, described as follows: Beginning at the southeast corner of the land described in the deed to John O. Forster, recorded November 11, 1913 in Book 235, Page 116 of Deeds, in the office of the County Recorder of Orange County; thence North 55° 00' 00" East 450 feet to an angle point on the easterly boundary of the land. described in said deed; thence North V 34' 23" East 685.15 feet along said easterly boundary; thence North 69°49' 1.3"West 114.80 feet;thence South 40°20' 37"West 197.31 feet;thence South 35°30' 09" West 310.32 feet; thence South 31° 51' 20" West 540.09 feet; thence South. 32° 55' 00" West 113.84 feet to a point on the south line of the land described in said deed, distant South 87°31' 28" East 330.54 feet from the southwest corner thereof;thence South 87°31' 28"East to the Point of Beginning. Except that portion thereof described as Parcel I in the deed to the State of California, recorded October 16, 1967 in Book 8404, Page 963 of Official Records of said county. PARCEL 2: That portion of Parcel 34, in the City of San Juan Capistrano, County of Orange, State of California, as per map filed in Book 2, Pages 31 to 38 inclusive of Record of Survey, in the Office of the County Recorder of said County and those portions of Parcels 2 and 5 in said City as per map filed in Book 4, Pages 15 of said.Record of Surveys, described as a whole as follows: Beginning at a point South 350 30' 09" West 162.01 feet from the northeasterly terminus of that certain course described as South. 35° 30' 09" West 310.32 feet in the Final Order of Condemnation recorded April 15, 1958 in Book 4268, Page 420 of Official Records; thence North 30°03' 15"East 370.07 feet to a point on a non-tangent curve, concave northerly having a radius of 430.00 feet, a radial to said point bears South 12° 20' 10" West; thence easterly 172.97 feet along said curve through a central angle of 23° 02' 53" to the beginning of a reverse curve, concave southerly, having a radius of 3 .00 feet; thence easterly and southerly 43.06 feet along said curve through a central angle of 70°29' 22"; thence South 30° 13' 21" East 243.76 feet to a point on a non-tangent curve, concave northerly having a radius of 150.00 feet, a radial to said point bears South 581 02' 06" East; thence westerly 223.05 feet along said curve through a central angle of 85° 11" 59"; thence North V 34' 23" East 209.85 feet to the most easterly corner of the land described in said:Final Order of Condemnation; thence North 69°49' 13" West 114.80 feet; thence South 40° 20' 37" West 197.31 feet; thence South 35° 30' 09" West 162.01 feet to the Point of Beginning. PARCEL 3: That portion of Parcel 34, in the City of San Juan Capistrano, County of Orange, State of California,as per map filed in Book 2, Pages 31 to 38 inclusive of Record of Survey, in the Office of the County Recorder of said County and those portions of Parcels 2 and 5 in said City as per reap filed in Book 4, Pages 15 of said Record of Surveys, being that portion of Parcel 2 of the relinquishment of highway right of way as shown in Book 9252, Page 371 of Official Records in the Office of said County Recorder, described as follows: 31 Beginning at the easterly terminus of that certain curve in the boundary of said Parcel 2 shown as having a radius of 430.00 feet, a delta of 17° 39" 00" feet and an arc length of 132.46 feet, a radial line to said terminus bears South 10°42" 43"East; thence easterly 110.15 feet along said the easterly continuation of said curve through a central angle of 1.4°40'39" to a point in the boundary of said Parcel 2; thence along said boundary the following courses: non-tangent from said curve South 28°24'38" East 130.73 feet to a curve concave westerly having a radius of 150.00 feet, southerly 1.58.06 feet along said curve through a central angle of 60122'32", non-tangent from said curve North 30°13'21" West 248.76 feet to a curve concave southwesterly having a radius of 35.00 feet and northwesterly 43.06 feet along said curve through a central angle of 70°29'22" to the Point of Beginning. PARCEL 4: That portion of Lot 5, in the City of San Juan Capistrano, County of Orange, State of California, as shown on a map Bled in Book 4, Page 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, of Official. Records of said county; 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 I in a deed to Rosenbaum Ranch Co., a partnership, recorded December 30, 1947, in Book 1613, Page 219, of said 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 40 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 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, of Official Records, said point being South 00 50' 00" West 22 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 420 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 890 43' 00"West 486 feet and 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 I of deed recorded in Book 1603, Page 296, of 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 are 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. Also excepting therefrom that portion lying southerly of the northerly line of that certain property condemned by the City of San Juan Capistrano, in Case No. 61-10-28, a Final Order of Condemnation recorded October 28, 1991, as Instrument No. 91-585872, of said . Official Records. 32 EXHIBIT ITA-211 LEGAL DESCRIPTION OF THE SAN JUAN MEADOWS PROPERTY That certain real property located in the City of San Juan Capistrano, County of Orange, State of California,described as follows: 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 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 Iand described as Parcel 3 in. a deed to Edward J. Guirado and wife, recorded April 17, 1950, in Boob: 1.999, Page 443, of Official Records of said county; 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, of said 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 40 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 540 50' 00" East 450 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, of Official Records, said point being South 0° 50' 00" West 22 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 781 55' 00" West 1565.79 feet, South 89°43' 00" West 486 feet and 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 I of deed recorded in Book 1603, Page 296, of 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 1.4° 11' 56", an are 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. Also excepting therefrom that portion lying northerly of the southerly line of that certain property condemned by the City of San Juan Capistrano, in Case No. 61-10-28, a Final Order of Condemnation recorded October 28, 1991, as Instrument No. 91-585872, of said Official Records. 33 EXHIBIT "B" DEVELOPMENT APPROVALS 1. General Plan Amendment (GPA) 07-01. A General. Plan Amendment (GPA) amending the Land Use Element's Land Use Policy Map by changing the land use designation of the 18.7 acre Distrito La Novia site from "Specific Plan/Precise Plan" to "Planned Community;„ amending the Land Use Element, "Figure LU-3, Planned Communities" and "Table LU-4, Planned Communities: Allowable Use Guidelines" by removing the San Juan Meadows site from the Forster Canyon Comprehensive Development Plan (CDP), merging it with the "Distrito La Novia" site, and creating the "San Juan Meadows-Distrito La Novia Planned Community;" aanending "Table LU-4, Development Capacity" to reflect associated acreage, dwelling units, and floor area statistics; and, amending the General Plan Circulation Element to remove Avenida California (Street "A") through the "Meadows"project site from the Master Plan of Streets & Highways. 2. Rezone (RZ) 07-01. A Rezone (RZ) amending the zoning designation of the 9.1 acre"El Parador" portion of the 18.7 Distrito La Novia site from "Specific Plan/Precise Plan" to "Planned Community" and establishing a Comprehensive Development Plan for the proposed "Distrito La Novia-San Juan Meadows Planned Community". The Comprehensive Development Plan would establish use and development standards for the proposed residential, commercial, office, retail and equestrian uses and structures. 3. Tentative Tract Map (TTM) 17280. A Tentative Tract Maps (TTM) application for the "San Juan Meadows" site creating 94 residential lots and a 500-horse commercial equestrian center.parcels consistent with the proposed development planning areas for that site. 4. Tentative Tract Map (TTM) 17226. A Tentative Tract Map (TTM) application for the "Distrito La Novia" site creating development parcels substantially consistent with the proposed development planning areas established by the Comprehensive Development Plan. 5. Architectural Control (AC) 07-14. An Architectural Control (AC) for the preliminary site and architectural development plans for the "Distrito La Novia" site proposed to be developed with 75,100 GSF (68,200 NSF) of commercial uses (food market, restaurants, and retail uses), 16,000 GSF (13,750 NSF) of commercial office use (or retail or hotel use); fifty (50) residential apartment units potentially including an on-site "affordability component" (mixed use with residential-over-commercial); and ninety (90) attached, residential condominiums provided that the total number of allowable residential units shall not exceed one-hundred.and thirty (130). 6. Grading Plan Modification (GPM) 07-01. A Grading Plan Modification (GPM) to alter the existing topography of the "Distrito La Novia-San Juan Meadows" project with a total of 1,524,280 cubic yards (cy) of cut and fill balanced on-site with approximately 381,360 cy being transferred from the "Distrito La Novia" site across La Novia Avenue to the "San Juan Meadows" site. 34 EXHIBIT "C+i DEVELOPMENT BENEFITS AND OBLIGATIONS 1. Development Impact Fees i) Limit on Exactions, Mitigation Measures, Conditions and Development Fees. Except for those fees expressly set forth and subject to the changes permitted herein, the City shall charge and impose only those exactions, mitigation measures and conditions, including, without limitation, dedications as are set forth in the Existing Development Approvals, and those Development Impact Fees as set forth in the City of San Juan Capistrano Municipal Code, Title 3, Chapter 3, "Taxes"; Title 9, Chapter 5, "Fees, Deposits, and Bonds.", and Resolution. 02-05-21-06 (Capistrano Circulation Fee Program - CCFP), and further listed in Exhibit E. ii) Payment of Development Impact Fees. Developer shall pay all Development Impact Fees which shall be calculated and paid concurrent with the issuance of a certificate of occupancy for a building. iii) Fee Reset Date. All Development Impact Fees shall not exceed the amount set forth in Exhibit E for a period commencing on the issuance of the first grading permit for the Project and ending on the date that is the fourth anniversary of the issuance of the first grading permit or.lune 30, 2015 whichever occurs first (the "Fixed Fee Period"). On the day after the end of the Fixed Fee Period (the "Fee Reset Date"), all Development Impact Fees shall be recalculated to be equal to the applicable Development Impact Fees generally charged by the City to all developments within the City (regardless of whether such new fees are more or less than the Development Impact Fees previously in effect). 3. Landfill Closure i) City agrees to promptly review and approve grading plans and other improvements plans for the San Juan Meadows site so as to permit the Developer to complete the remediation or closure of the Landfill, if required as expeditiously as possible. ii) ;. Prior to the approval of any final subdivision map for the "Meadows" site (Tentative Tract Map 17280) with the exception of neaps solely for the purpose of conveying street right-of-way or public site dedications required by CITY, DEVELOPER will have either completed remediation or closure of the former Forster Canyon Landfill in full compliance with either the San Diego Regional Water Quality Control Board-approved Remedial Action Plan or the Forster Canyon Landfill Closure Plan(FCLCP) and Post-Closure Maintenance Plan (PCMP) whichever is determined applicable by the Regional Board. Developer shall provide evidence of the Board's determination that remediation or closure is not required or shall provide certification of the landfill remediation or landfill closure by the landfill engineer of record to CITY. 35 4. Traffic Improvements i) The following traffic improvements shall be constructed by the Developer. a) Valle RoadlSan Juan Creek Road intersection. Prior to issuance of the first building pein-iit for the proposed project,the project applicant shall pay the fair share fee in order to mitigate the project's cumulative impact at Valle Road/San Juan Creek Road .intersection. In addition., the existing traffic signal at that intersection shall be modified to reflect the changed conditions. (MM 4.2-3) b) Camino Capistrano/I S SB Ramps intersection. Prior to issuance of the first building pen-nit for the proposed project,the project applicant shall pay a fair share of the construction costs associated with the restriping and/or widening the 1-5 SB Ramps at the Camino Capistrano/1-5 SB Ramps intersection to provide a westbound shared left/right-turn lane and the extension of that lane to accommodate up to 450 feet of storage. The provision of a second left-turn lane will require an additional departure lane on Camino Capistrano. In addition,the existing traffic signal shall be modified to reflect the changed conditions. (MM 4.2- 4) . C) La Novia Avenue at Calle Arroyo intersection. Prior to issuance of the first building permit for the proposed project, in order to mitigate the project's direct impact, the project applicant shall widen and restripe the northbound approach of La Novia Avenue to San Juan Creek Road and provide a separate northbound right-turn lane. Modify the existing Class III bike path accordingly and maintain bicycle access and circulation along the east side of La Novia Avenue. (MM 4.2-5). d) Valle Road at La Novia Avenue/1-5 NB Ramps. Prior to issuance of the first building permit for the proposed project, the Developer shall realign the intersection at Valle Road and the La Novia/I-5 NB Ramps and provide a single left-turn lane and a shared through/right-turn lane on all four approaches of the intersection, consistent with planned improvements. In addition, the applicant shall also install a traffic signal at this intersection. (MM 4.2-7). ii) Prior to issuance of any building permit, DEVELOPER shall pay the required Capistrano Circulation Fee Program (CCFP) fee consistent with the fee schedule established as of the date of execution of this agreement. iii) Credits against CCFP program obligations. Pursuant to the provisions of the City's Capistrano Circulation Fee Program (CCFP), DEVELOPER shall be eligible to receive credit for all arterial street improvements completed by DEVELOPER that are reflected on the City's General Plan Circulation Element Map and have been programmed into the Capistrano Circulation Fee Program (CCFP) street improvement program. iv) Modification of San.Juan Creek/Valle Road intersection design. The City Council shall retain sole discretion over modifications to the minimum required right-of-way width for Valle Road will consider right-of-way width reductions to the extent such reduction can be accomplished while meeting the General Plan Circulation Element level of service (LOS) 36 standards and complying with requirements of the countywide Congestion Management Prograrn (CMP) required under State law. v) Private streets. All subdivision streets within the "Meadows" site shall be constructed to meet City standards and shall be privately-maintained by a homeowners association (HOA). 5. Other Improvements i) Recycled water service over-sizing. The Developer shall install off-site recycled water facilities to serve the Project which includes capacity in excess of that required to serve the Project in accordance with City specifications. Water improvement plans shall be subject to review and approval by the City's Public Works Department and shall include costs estimates for both total recycled water improvements and recycled water improvements required to serve only the project. The cost estimates shall be subject to review and approval of the Public Works Department. Within ninety (90) days of the completion of the off-site recycled water facilities, the City shall reimburse the Developer for the cost of the excess capacity in the recycled water facilities. ii) 250S Reservoir. In conjunction with the final reap for the "Meadows" site (Tentative Tract Map 17280), DEVELOPER shall record an irrevocable offer of dedication for the planned 250S Reservoir at a location and of a size determined by the City's Public Works Department and with necessary access easements, ternporary construction easements, and utility easements. ii) The City agrees that the Developer shall be entitled to credits against park fees by the City Council in accordance with Section 9-4.519(i), "Partial credit for private open space" of the Municipal Land Use Code for the value of the land, determined pursuant to Section 9-5.107, "Parkland In-lieu fee" and the cost of the following improvements: a) Approximately 1 mile of publicly-accessible trails, including two publicly- accessible look-out points, with a public access easement granted to the City and with improvements to be maintained by a private property owners association. b) Trail head parking/staging area including approximately 11 public parking spaces. iii) DEVELOPER shall construct all trail improvements, staging areas, and rest stops and shall dedicate all necessary public access easements consistent with the preliminary design plans for the "Distrito" site prior to issuance of any "Certificate of Occupancy" for the Distrito site. Developer shall also construct all trail improvements, staging areas, and rest stops, and shall dedicate all necessary public access easements consistent with the preliminary design plans for the "Meadows" site prior to issuance of any Certificate of Occupancy for the Equestrian Facilities or prior to the issuance of the 5`r` "Certificate of Occupancy" for the"Meadows" site, whichever occurs first. 37 7. Equestrian Facilities i) Potentially significant environmental impacts of the proposed Equestrian Facility have been addressed in the Environmental Impact Report (EIR) at a conceptual design level. However, the proposed Equestrian Facility may produce impacts that become evident at the subsequent preliminary design stage but were not evident at the conceptual design stage. Accordingly, the development of the Equestrian Facility which is subject to the City's Conditional Use Permit (CUP) and Architectural Control (AC)review.process, will be subject to appropriate conditions of approval as deemed necessary by the Planning Commission to specifically address potential impacts including arena lighting, public address system use, amplified sound/music, special events, and vector control. As provided by Municipal Code, Section 9-1.201(c), in the event of non-compliance with conditions of approval imposed as part of the Conditional Use Permit(CUP), the City may initiate revocation of said permit pursuant to applicable provisions of the Code. 38 EXHIBIT "D" AFFORDABLE HOUSING IMPLEMENTATION PROGRAM Twenty-six of the rental units within the "Distrito La Novia" portion of the project, or such other area as may be approved by the San Juan Capistrano Community Redevelopment Agency, or the City of San Juan Capistrano, shall be designated by DEVELOPER as Affordable Units. At least nine (9) of the Affordable Units shall be rented at an Affordable Rental Cost to Very Low Income Households, eight(S) of the Affordable Units shall be rented at an Affordable Rental Cost to Low Income Households and nine (9) of the Affordable Units shall be rented at an Affordable Rental Cost to Moderate Income Households. Definitions: Adjusted for Family Size shall mean a family size of one person plus the number of bedrooms in the unit. Affordable Housing Covenant means a covenant recorded against each of the Affordable Units requiring that the Affordable Units remain available at an Affordable Housing Cost to, and occupied by Low and Very Low Income Households for a period of time as may be determined by the City. Affordable Rental Cost for Low Income Households shall mean annual rent (including a utility allowance) as defined in. California Health and Safety Code Section 50053(b)(3) except that for families whose gross income exceeds 60 percent of Area Median Income as Adjusted for Family Size, the Affordable Rental Cost shall be established at an amount equal to a product of 30 percent times the gross income of the Low Income Household. Affordable Rental Cost for Very Low Income Households shall mean annual rent (including a utility allowance) as defined in California Health and Safety Code Section 50053(b)(2). Affordable Rental Cost for Moderate Income Households shall mean annual rent (including a utility allowance) as defined in California Health and Safety Code Section 50052.5(b)(4). Affordable Units shall mean multi-family units rented at an Affordable Rental Cost to Very Low, Low and Moderate Income Households. Area Median Income means the area median income for Orange County as published by the California Department of Housing and Community Development. Low Income Household means a household as defined in California Health and Safety Code Section 50079.5.Very Low Income Household means a household as defined in California Health and Safety Code Section 50105. 39 Moderate Income Household means a household as defined in California Health and Safety Code Section 50093. Affordable Housing Covenant Each of the Affordable Units shall be the subject of an Affordable Housing Covenant subject to City review and approval and recorded by DEVELOPER on the project. City Participation in the Affordable Housing Program In accordance with the City's Housing Element, the City may provide assistance to the Project and to the Low and Very Low Income Household tenants of the Project in order to bridge the affordability gap of construction and renting the Affordable Units including but not limited to the following: ® Cooperation with the Project Developer in pursuing local, state and federal funds for the construction of the Affordable Units. ® Allowing DEVELOPER to meet the Affordable Housing Program requirement of providing twenty-six (26) affordable units through DEVELOPER's purchase of existing housing stock and the imposition of City-approved affordability covenants on such housing consistent with State law. In addition, the City shall have the responsibility for establishing the Affordable Housing Cost for the Affordable Units on an annual basis. The DEVELOPER shall be responsible for qualifying prospective tenants as "Low Income" and "Very Low Income" Households and monitoring the ongoing eligibility of the tenants to occupy the Affordable Units in accordance with the Affordable Housing Covenant and providing a bi-annual report to CITY on implementation of the program. Credits for Additional Affordable Housing To the extent the Developer provides Affordable Units in excess of the number of Affordable Units required herein, the Developer may be able to transfer credit for those Affordable Units to other projects within the City of San Juan Capistrano for which affordable units may be required by law and the City shall credit those Affordable Units to such other project. 40 AFFIDAVIT OF PUBLICATION STATE OF CALIFORNIA, ) ) ss. County of Orange ) PROOF OF PUBLICATION I am.a citizen of the United States and a resident of the County aforesaid; I am over the age of eighteen years, and not a parry to or interested in the above entitled matter. 1 am the principal clerk of the Capistrano Valley News, a newspaper that has been adjudged to be a newspaper of general circulation by the Superior Court of the County of Orange, State of California, on June 7, 1AW,OF SAS JUAN CAPI°.STRIANO 1984, Case No. A-122949 in and for the City of ler ��lau +a l ac Natcca is hereby grven fhet an November 16 2010 V tasty Council well agnsic#er adoption of. San Juan Capistrano, County of Orange, State of an ordinance er t�l�d RNgFlpINAhYCttiF!fiEGI,7YCOUNCILpF7NECITYOF�"M UANORSISTAANQ ORLTI OI NIA AFPROV.ING.:A bbCOPM"CNT AGREEME. FOR DISTRITt3 LA California; that the notice, of which the annexed NOVtA SRNJUAN MEADOVI+S pF303ECT The orcirnance ppm��s a stsyelapm ertt a reement ft at estabI sties speafic rr his and re- is a true printed Copy,has been published In each sponsita lEiies of the d vslaper of the pro eat inolu lrng aha r3strng of the'evelopmefiC approvals for s pen d of six years with a1i opption to eAend the±d Wjhi peddd for an addlm; regular and entire issue of said newspaper and twnal Thur year 'The prrTeet zncindes a Generei Plan Am�rsdrnent andRezong of the gProperty to Planner�;ommunity from motel and reslden9ial�ilial 3nctudsS a new mixed . commercial and:re5idetitialuse as well as srng€efarriily res�derstiaf and egGesinan uses: not in any supplement thereof on the following R aer!f ed copy dt the ccsmplete next at the�rainar ae is pasted may he read iry;ihP pity C1er1 s t3epartnasrtt 341H1 F ageo Adelanto San Juan Capistrano andlar a appy tray be ohttned fram that+�ffrce ata t�ommal charge dates,to wit: Datad AlovemFs?r ,�q1R November 11,2010 ]s!Maria morns City Clerk _ .P�bl isFi C�pistranb Valley Ne+!vs ...., .Noveml?or 11 2074: ' 93Q3994 "I certify (or declare) under the penalty of perjury under the laws of the State of California that the foregoing is true and correct": Executed at Santa Ana, Change County, California,on Hate: November 11,2010 Signature t Caistrano Valley News 12s N.Grand Ave. Santa Ana,CA 92701 (71.44)796-2209 -� ; ; AFFIDA'V'IT OF PUBLICATION STATE OF CALIFORNIA., ) ) ss. County of Orange ) PROOF OF PUBLICATION I am a citizen of the United States and a resident of the County aforesaid; I am over the age of eighteen years, and not a party to or interested in the above entitled platter. I am the principal clerk of the Capistrano Valley News, a newspaper that has been adjudged to be a newspaper of general circulation by the Superior Court of the County of Orange, State of California, on June 7, c� ® 1984, Case No. A-122949 in and for the City of Y. Notice is hereby given that an Navefnber 15 2tlitl the C tty C 3nc€i n all ansidar adapt cm af, San Juan Capistrano, County of Orange, State of an S7i[Sifranaegrtutled RN t7RI31NRNCE OPTHE err!GCUNCIL o3 THE Cl ...OF SAN JUAN CAFi5°�CANQ CAfJ OflI1iA APARpVING A bE+lEt P 1El�T AGREgMEN_ 10f3 035Ti31.0 LA California;that the notice, of which the annexed NOVIA safe JuRN MEAbws PAC33EGT The ordinance ap reves a dev8aiq crit agreement That astahiis'hea speafic=.. his arrd is a true printed copy,has been published m each. pons€esl�u��t tie d�ueiApt;r a ff rnte t tncitld,ng ,e vgsvn of tr,� � �pmens;, appYova9s for a panotl 3f s€x'years with an ogt€on to extend the vesting period for air adds regular and entire ISSIIe of said newspaper and tonal lour years ;;Thi project rnaSudes-a CeneraE Plan Amer;dment and Fiezorre of.,fhe, properly to Planned FrmrrurYity fram.(tctel and,r'eSldenual)that l3aiudss a new mixed.. coma ercial an [esdeni€al>js as well as s,ngle f6m.hy rn'siden}al and eql estnan uses: not In any supplement thereof on the following Crdmance rs posted and may be read to°8he o€ty 41er7t separ¢mert 824#Y PaseoAdeiantor Jusn CapiStro andltx aapy ltaay dates,to wit: be obtaEned from that ofliee ata naminat r arge i:Sated,Noverrber..3p1t) November 11,2010 Ial Maria Mattis City Gfark Puhtrs4i Cap€sVariol+allsyNalvs Novdmber11,.2flj0; `��`� "I certify (or declare) under the penalty of perjury under the laws of the State of California that the foregoing is true and correct": Executed at Santa Ana, Orange County, California, on Date: November 11,2010 ! r4 Ua 70 SignaturePli Caistrano Valley News , 125 N.Grand Ave. Santa Ana,CA 92701 (714)796-2209 -� AFFIDAVIT OF PUBLICATION ST'A-rE OF CALIFORNIA, ) ) ss. County of Orange } PROOF OF PUBLICATION I am a citizen of the United States and a resident of the County aforesaid; 1 am over the age of eighteen years, and not a parry to or interested in. the above entitled matter.T am the principal clerk of the Capistrano Valley News, a newspaper that has been adjudged to be a newspaper of general circulation by the Superior Court of the County of Orange, State of California, on June 7, 09W,0r SAPS aUAii 0A€1VMH0 llmmaoucmom6F.:A. gaa, NcIEZ, 1984, Case No. A-122949 in and for the City of Notice w^hereby:6iven that on November 16 2019 the Covnc€ y GoI w€i!consider ad pi€on of an S]rdirrange entitted.. San Alan Capistrano, County of Orange, State of AN ORDINANCE OF THE CirV COWNCILOF THE CITY OF SAN JUAN CAPISTR.ANO, ! GALIFt7RNIFl APPROVING A DEVELopmENT AGREEMENT Pofi.RiSTRifC7 LA California;that the notice, of which the annexed SJOVIA-SAN.JWAN iR1 AllO1rJS PROJECT Tise:ord€nance ap rovas a'dwelopwent a�reemef i that establishes spa t e rights and ra- onsibillGes bt.the developer of th�`�prolect €ncYudEng k3te:vesrin nt#he dev®Inpment_. is a true printed Copy,has been published in each approvals for a period,of.six years with an option 20 extend the vozfigg penod for an add€» trona! four.years The pro;eat tnbiudes a General Plan A nendrnent snd Rezone:,of the properly to Planned Commun€ty from(hoiei anti residon" that€nciudes a new m xed' regular and entire issue of said newspaper and eommerc€ai and res€deMial use,as Well as pin gle,fanily reg€d ual and egttP tnan uses. A certified to At the corn late text 91 the Ordinance€s pasted and may be read in the not in any supplement thereof on the following City.'Clerk,s Department,32400 Paseo Adelanto,Ssn Juan Capistrano,andlor a copy may; be.obtained from that otfige ata nominal charge. dates,to wit: L7aYeri November 3,2010, Isl.M ria Morris;City CterKi. c 03994 November 11,2010 PublEsh.Caplstrann Valley News November 11,2010 _ I certify (or declare) under the penalty of perjury under the laws of the State of California that the foregoing is true and correct": Executed at Santa Ana, Orange County, California, on. Dater November 11,8010 €a. r . gnature Cap' rano Valley News w„r 6 N.Grand Ave. i Santa Ana,CA 98701 (714)796-2209 11/4/20.0 10:56 OCRFAX1 2/2 CITY OF SAN JUAN CAPISTRANO INTRODUCTION OF AN ORDINANCE NolcQ pis heleov Qsvern Oat on N©vernber?8,2610 the tatty cor-sio'sr a�,anoon of an Ordinance ehrit6eL1 Atli IIR 6RNkNG'E E7F TNEGIT'f CGl3Nl:.li..t FTHE OtT"CF SP.N 3G,:h;GAPESTHA3V0. CALIFORNAA APPRtTAMG A fD"EVEL,-D E:N, ACRFEMENT FOR DISTR€TO LA NOVA-SAH dUAN Mt:ADOWSP'iEOT Tim adimam—approves a aeve oprnen;apreement that wabii5h6'*SpeClm iGnt5 ar:d re- sp©n9d71'?itG5 of the 03veEaoGrr of C16 ixnfe�ii mctudrnq Tie vt?fivnc W the Oevelon=ant approvals far a period nE SEx 4f^-arW w&ar o3ao^b extend the vestng pDri:cd for a3-a-dm- tune€fir years, The project includes-a General Ran Amendment anc Rezone of t+-o piroPer25-to Manned–,ommuni(y from(holm end resldena d) that m(ouaar-0 naw mxed eommercia€a!rd ro,,identai use,as w0 a, e-a lYresidential and e4u3sCi3 usas_ A.ne,Mfiad ccp'sv of the complete,text of he 0. dinanc2 is posted and may bo read in One 0:,,,C, C!erk's Denartmsnt,32400 Paseo Ad31anEG:Sol ''uan CapisUano,aq,d/a-a copy may be of ined from that office ata non€naf cnargc- - DatedV.�tovernber 0,2010 /s/Maiia Morris,city_Ciork Pub;lsh:CaplsVancVaAAeV News, NNu.-I3berll,2010 0303Aa� 11/4/2010 10:56 OCRFPXI D 1/2 ORANGE COUNTY YMGISTEM..AF COMMUNICATIONS T Fax Message To: Fax: 19494931.053 Subject: Attn: Maria Ad# 9303994 Cost 56.26 Date: 11/04/2010 10:56: 19 A.11!i Pages: 2 including cover page From: Jennifer Chavez E-mail: jchavez(cr;ocregisteT.com 'hone: Fax: 714-347-2579. Company: Orange County Register Address: 625 N. Grand Ave. Santa Ana, CA. 92701 NOTICE OF TRANSMITTAL CAPISTRANO VALLEY NEWS Legal Publications CHARGE TO ACCOUNT NO. 0041125000 FOR PUBLICATION ON: THURSDAY, NOVEMBER 11, 2010 DOCUMENT TO BE PUBLISHED: CITY OF SAN JUAN CAPISTRANO — INTRODUCTION OF ORDINANCE — DEVELOPMENT AGREEMENT — DISTRITO LA NOVIAISAN JUAN MEADOWS PROJECT PROOF OF PUBLICATION: Please send to: City Clerk's Office, City Hall 32400 Paseo Adelanto San Juan Capistrano, CA 92675 fax 949 493-1053/telephone 949 493-1171 t S 1 AUTHORIZED BY: Ma'rA,Morrig, City Cle I � DATE: November 3, 2010 Date notice published - 11/11/2010 Date affidavit received - Date notice posted in designated posting places (3) - 11/11/2010 CITY OF SAN JUAN CAPISTR.ANO INTRODUCTION OF AN ORDINANCE Notice is hereby given that on November 16, 2010 the City Council will consider adoption of an Ordinance entitled: AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF SAN JUAN CAPISTRANO, CALIFORNIA APPROVING A DEVELOPMENT AGREEMENT FOR DISTRITO LA NOVIA-SAN JUAN MEADOWS PROJECT The ordinance approves a development agreement that establishes specific rights and responsibilities of the developer of the project, including the' vesting of the development approvals for a period of six years with an option to extend the vesting period for an additional four years. The project includes a General Plan Amendment and Rezone of the property to Planned Community from (hotel and residential) that includes a new mixed commercial and residential use, as well as single-family residential and equestrian uses. A certified copy of the complete text of the Ordinance is posted and may be read in the City Clerk's Department, 32400 Paseo Adelanto, San Juan Capistrano, and/or a copy may be obtained from that office at a nominal charge. Dated: November 3, 2010 /sl Maria Morris, City Clerk Publish: Capistrano Valley News, November 11, 2010 AFFIDA'V'IT OF PUBLICATION STATE OF CALIFORNIA, ) ) ss. County of Orange ) PROOF OF PUBLICATION I am a citizen of the United States and a resident of the County aforesaid, I am over the age of eighteen years, and not a party to or interested in the above entitled matter. I am the principal clerk of the Capistrano Valley News, a newspaper that has been. adjudged to be a newspaper of general circulation by the Superior Court of the County of Orange, State of California, on June 7, ciTy ofr'sAm41JAK.CAPISTRA o 1984, Case No. A-122949 in and for the City of Nat'ce 15 t€M y Iver,thaf on yea i s 2010 the City . Council adoptedrdiriance San.yuan Capistrano, County of Orange, State ofAN OI DJNAN0E of THE -i�ltw ccsUNCF OF THE CITYOF.SAN JUAN CAPtSTF?ANO,GALIFpR119A AP= , PROVING A';CEVELDPMENT AGREEMENT EP R California; that the notice, of which the annexed. 01STArrO LAAiOVlA-SAN JUAN MEADOWS PAOJECT The r rd:nance approves a development agrae6jI. hat ss is a true printed copy,has been published in each tablishes spodfic rights and reeponsibitities of the leveiap or of the project inch,idrng they est ngg of the deusiapment approvals tar a pefiorl of six ears wth an option to extend regular and entire issue of Said newspaper and the 'esting'penod foran adiditiorial four yaars. The project.; includes a-General Pfan Amendment and"i3ezane af.the' prope to:Ptanned Comrnunrty horn(hotel antl residanfiai) not in any supplement thereof on the following thatinode's an.e nixed comm rcial'and.r86id@nt�l,use, as well As;single-farnily-.residential sand equestrian dates,to wit: A certified:ccg y of tYie compEets`rtaxt of the ordinanc is posted anis ma be road in the;'.Crty G€ark's pepartment, 324f10 Pot 00 Adyeianto,San Juan'G istranoarid or a copy November 25,2010 may be obtained frgm tha€oftrce at nominal charge Ordnance No 978 was,adopted by too foll ccowing vote C certify (or declare) under the penalty of AYES CoundlMembers:Alle(eto, Hribar flelse Freese,and Mayor Uso. perjury under the laws of the State of California NOES_ ,,,;c;i Mnbars:None ABSENT;Coonan Membsts;Norte that the foregoing is true and correct": Gated filovernQert7, ato !s!Maria Moms City clerk Executed at Santa Ana,Orange County, PtiONI Caplstrano uOey News November 26_2010. California,on Date: November 25,2010 "" Signature apistrano Valley.News f' 625 N.Grand Ave. Santa Ana,CA 92701 (714)796-2209 a AFFIDAVIT OF PUBLICATION STATE OF CALIFORNIA, ) )ss. County of Orange ) PROOF OF PUBLICATION I aln a citizen of the United States and a resident of the County aforesaid; I am over the age of eighteen years, and not a party to or interested in the above entitled matter. I am the principal clerk of the Capistrano Valley News, a newspaper that has been adjudged to be a newspaper of general circulation by the Superior Court of the County of Orange, State of California, on June 7, CITY-OF SAN JUAN C +IS'f'"NO 1984, Case No.A-122949 in and for the City of ere'b Notice is hereby given that On.NWerabei 79,2010 the City 1 COuncii.adoptedrd�nance 976 San Juan Capistrano, County of Orange, State of AN pRQINANCE OF THE CITY ComdL OF THE, California; that the notice, of which the annexed PR VING Aq,)EV OPMENT"AGREEMENTI FOR 1315TRIT0 Lq N0V1A SAN JUAN MEAD L)WS'P, JECT 15 a true printed Copy,has been published 112 each The..oidinanco approves a devolopment agreement 3Yiat as tabltshes specific rights and r'esponsibilities of the,devefop- or of the proleot including the vesting'of>the develppmant regular and entire issue of said newspaper and approvals fora period of six years with ars npmo..lop en t the d. vesting poriod for an add tional four years The praiect; includes a General Plan Amendment and Rezone,of,the not 1I1 any Supplement thereof on the following Prof to Planned Commur itq#rom(ltoteY and residential? that inc..udes a neva mixed commercial'and resfdenflal use, as wail s s,ngie-#aiiuly reslderittal and aquiasttian.uses {fates,to Wit; A certified.copy of the aemplete text of the Ordinance is posters and ma be read in the City Clerks (se�partment; November 25,2010 32400 Paseo A elanta San.1uan Capistrano andl0,dg. ropy maybe obtained from that otfoe at a nominal charge "I Certify (or declare) Under the penalty ofOrd#nance Na"978 utas adopted by the fpllawing vote: perjury under the laws of the State of California AYES. ' epU00f1 Mefgbers:AltevaIo, I lrigar, Nielsen, - l Freese,and Mayor U e NOES council Members None that the foregoing is true and Correct": ABSENT:Council Members One Dated:'Novernper 17;2010 Executed at Santa Ana, Orange County, L rsl Masa ylerr,s City clerk f'ubJ,sh' Cap,gtrano (eY. .N s November 25, 2610„ California,on 84 _ : Date: November 25,2010 f , F f d- Sim Capistr o Valley News 525 .Grand.Ave. Santa Ana,CA 92701 (714)795-2209 11/17/2010 11:43 OCRFAX1 L 2/2 CITY OF SAN JUAN CAPISTRANO ADOPTION OF ORDINANCE 976 NOOce d5 hereby/gven Oat 6R FtOvoate't8,2010 the Cit/ Coarnrll acopted Orcilrmr=_ae 9M AN OR_3;hP.NCI: GF 'T THE G1T! GCWnG[L OF THE CFY OF SAN LAN DAPI'TPA[J6, CALIFORMA AP. PROVING A 1.3FW:LU)PMLNl- AGREEMENT FOR DMRIM€A of)VI.A-SAN JUA.PI MEADLIWS>'ROJcCT The rxcunince approvea a deveiopnin uit apreernent t,at es- - mblishes specitie riph€s and u!Una develop- er of the prgect,mcludinci the ves�lrx�of€he development approvals for a period of six veers wi T a.n opuor.to extend the vesl:nq pQnod for an ocfd=tiamal four vea-s. The project includles a General Piro Arneegment and Rezone of ti© property`.o Pianmed Comnnur;it`r from(hotel and residential) tl-et mdudaa rt rr"r:rixed commercial and resideMfl d ua at well as sii .;[e-fa lv residenfa,and eques`Ian a es P.certifeo copy of the compiete text of the Ordinance is pameo and rrray r:e read in the Cay olerl('�Depart€ren-., 324G0 Pasoo Aaetapto,San Jtfan OaDm sine,and/or a copy rnav be obta=ined:ran ITat of lye 2t a nominal ctrarpe Orcflnanaa tiu 976 wu,5 aoorrtad M the foilownu vo.e. AYES. Goui°aeil Members:Alevato, rlrrFar, Hog *r; F€eese,ard Mayor Use, NO)Es. Oouncil Members H aie ABSRN'iC,YiiT-,.i Members liu-e [heel NoyelTrber'i7,1€ 0 Ss/Maria Monde,'-,O1 GEF.W Puhligh_ ;Oflpish'3r�0 Vdlav Nr'4v5, Nivcm0eT 25, 2010 9`=.08404 11/17/2010 11:43 OCRFRXI D 1/2 ORANGE off. REGISTER Fax Message To.- Fax: o:F'ax: 19494931053 Subject: Attn: Maria Mors AIS# 9308404 Cost $ 57.00 Tate: 11/17/2010 11:39:45 AM "ages: 2 , including cover page From: Jennifer Chavez E-mail: jchavezl(a�ocregiSte 1,coin :Phone: Fax: 714-347-2578 Company: Orange County Register Address: 625 N. Grand Ave. Santa Ana, CA. 92701 NOTICE OF TRANSMITTAL CAPISTRANO VALLEY NEWS Legal Publications CHARGE TO ACCOUNT NO. 0041125000 FOR PUBLICATION ON: THURSDAY, NOVEMBER1, 2010 DOCUMENT TO BE PUBLISHED: CITY OF SAN JUAN CAPISTRANO — ADOPTION OF ORDINANCE — DEVELOPMENT AGREEMENT — DISTRITO LA NOVIAISAN JUAN MEADOWS PROJECT PROOF OF PUBLICATION: Please send to: City Clerk's Office, City Hall 32400 Paseo Adelanto San Juan Capistrano, CA 92675 fj (949) 493-1053/telephone (949) 4931171 AUTHORIZED BY: Is/Maria Morris Maria Morris, C44-1 rk DATE: November 17, 2010 Date notice published 11/25/2010 Date affidavit received Date notice posted in designated posting places (3) - 11/23/2010 CITY OF SAN JUAN CAPISTRANO ADOPTION OF ORDINANCE 976 Notice is hereby given that on November 16, 2010 the City Council adopted Ordinance 976: AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF SAN JUAN CAPISTRANO, CALIFORNIA APPROVING A DEVELOPMENT AGREEMENT FOR DISTRITO LA NOVIA-SAN ,JUAN MEADOWS PROJECT The ordinance approves a development agreement that establishes specific rights and responsibilities of the developer of the project, including the vesting of the development approvals for a period of six years with an option to extend the vesting period for an additional four years. The project includes a General Plan Amendment and Rezone of the property to Planned Community from (hotel and residential) that includes a new mixed commercial and residential use, as well as single-family residential and equestrian uses. A certified copy of the complete text of the Ordinance is posted and may be read in the City Clerk's Department, 32400 Paseo Adelanto, San Juan Capistrano, and/or a copy may be obtained from that office at a nominal charge. Ordinance No. 976 was adopted by the following vote: AYES: Council Members: Allevato, Hriibar, Nielsen, Freese, and Mayor Uso NOES: Council Members: None ABSENT: Council Members: None Dated: November 17, 2010 Isl Maria Morris, City Clerk Publish: Capistrano Valley News, November 25, 2410 AFFIDAVIT OF PUBLICATION STATE OF CALIFORNIA, ) )Ss. County of Orange } PROOF OF PUBLICATION I am a citizen of the United.States and a resident of the County aforesaid; I am over the age of eighteen years, and not a party to or interested in the above entitled matter. 1 ain the principal clerk of the Capistrano Valley News, a newspaper that has been adjudged to be a newspaper of general circulation by the Superior Court of the County of Orange, State of California, on June 7, 1984, Case No. A-122949 in and for the City of Orry®ilz sAM ruA0 OAPIST AHO Aq0FTMqX OF ORDIWANCE.075" San Juan Capistrano, County of Orange, state of Ngiice is hereby given that in November 162010 the.,City Gouncil,adaptad>7rtlinance 97S'enUYled. California;that the notice, of which the annexed AN ORbINANCE of'TH'E ciry COU N.CIL o TH CITY'OF SAN:SUAN CAPISTRANO,'"CALIFORNIA AP- is a true printed copy, has been published in each ING PROVING ASND ADOP IW(( �jCOMP�EHENslyE ne VELOP JEN7 PIAN FOR'DISTRITO LA NOVWSAN regular and entire issue of said newspaper and JItANI ADows PRCI€ Cr(i3aoiN> o ot} rn}s ordl ianae approu a Rezone( amerdf- the zan-- ing demghation at the 91 acre'El Paredoi po rhon ci 4he not in any supplement thereof on the following 1a 7 Usirito U Novia sree from°spec€fic'PIM Precise plan' to Planned Community and establishes a Co.mpre.hensive dates YO wit: Developrhent Plan;for the proposed a Distrito 1 a Novia Sm Juan tneadows..P,€ained.Camrriunrty.The;,Carnprehertive Development Plan Would sslablish use,a td deveicprtierrt November252010 standards for this proposed residential,commercial,once, s retail and lequestr4an-uses anti structures. I certify Or declareunder the enalt Of A certi€ed copy of.:the complete text at the Ordinance is li posted ai d ma be.read in the City Clerks Departmient. 32rii10 Paseo A dant¢,San;luan Capist anc and/pr a copy perjury under the laws of the State of California may be 66talnedird7n that olfice:aY a namlrsal charge.. _ Ordinance No 975'was adopted by the following vote that the foregoing is true and Correct": AYE S: Council Members Ailevata, Hribar, .NWsen, Freso,and.A9syor lJso Executed at Santa Ana, e Orang County, NoEa: council Mombem,None y ABSENT: Couneil Members.None California,on Dated:November 17;'2010 !sl Maria'Morris,City`Clerk Date: November 25 2010 Publish: Capistrano Valley News, November 25, !2010' 0308408 - }} f� f 4 Signature , pistrano Valley News 625 N.Grand Ave. Santa Ana,CA 92701 (714)796-2209 AFFIDAVIT OF PUBLICATION STATE OF CALIFORNIA, ) ) ss. County of Orange ) PROOF OF PUBLICATION I am a citizen of the United States and a resident of the County aforesaid; I am over the age of eighteen years, and not a party to or interested in the above entitled matter. I am the principal clerk of the Capistrano Valley News, a newspaper that has been adjudged to be a newspaper of general circulation by the Superior Court of the County of Orange, State of California, on eine 7, idlT 'OF SAY.fUAW cApmnAvo 1984, Case No. A-122949 in and for the City of ......ADOPTION.OF Notice is hereby giverY that on November 16 2010 the.oty San Juan Capistrano, County of Orange, State of cannot adopted Ordinararc 975 entitled California; that the notice, of which the annexed c T°o°1sANc u N. STRAND CAUFORMA.rAP f?ROMNG AN: . ENDMENT TO T_H.E.OFMCIAL SON-. is a true printed copy,has been published in each vl i°P °Pr�A°r��o1O�IsTA r01A NOVIAs°AN ,' 31.YAN MFAI30WS;PftOJ1=CT{RHONE 07*01} regular and entire issue Of said newspaper and Th s ordinal ae approves a Rezone{HZy amending the zon 'ng designahan of the-91 acre",EI paredaY"':pattion of..3he t8 7 ttislrito La Novia site from°.Specaf�o Plan/Precise i31an not in any supplement thereof on the f011OWing to 'Planned Carr nunity and establishes a eamprehensave' ent Pian for he propas8d C}istr tc La Novia Sar Juan meadows Planned ComrrUrifty The Gtmprehensivs dates to wit: gavelapmeht P1ere wtsiald establish ase anc3 veFc'Pmen', standards int the proposed resideniiai eomri,erc�i office„ November 25,2010 �,De,el-p_ stai2 and equestrian uses and sirirctures A certified copy of the complele,:lent.of the Ordinance.is. "I certify `IQr declare) under the enol Of pasted and may be react in the City Clerk's De artment, t penalty 32400 Paseo Adetant6;San Juan Gapistranct;and]ora copy may be.obtained from'lhat-office.ata nominal charge. perjury under the laws of the State of California Ordinance No 975 was adopted fly the following.vote: ' that the foregoing is true and correct AYES: Council Member&,Allavato, Hribar, Nielsen, NOE5: :Council Members;r Uso None Executed at Santa Ana, Orange County, ABSENT: council Members' None California,on Dated November 17,201.0 /s/Maria morns,City Clerk Publish: Capistrano valley Ney;s_ November 25 2010 Date November 25,2010 930840.8 cra m ignature c a T Capistrano Valley News „f 625 N.Grand Ave. Santa Ana,CA 92701 (714)796-2209 T AFFIDAVIT OF PUBLICATION STATE OF CALIFORNIA, ) ) SS. County of Orange ) PROOF OF PUBLICATION I am a citizen of the United States and a resident of the County aforesaid; I am over the age of eighteen years, and not a party to or interested in the above entitled matter.I am the principal clerk of the Capistrano Valley News, a newspaper that has been adjudged to be a newspaper of general circulation by the Superior Court of the County of Orange, State of California, on June 7, RANO 1984, Case No. A-122449 its and for the City of �AtU® iP�1 Qq�OR®6NAN E 975 Notice is fierebyf§Wren that 0n November 16 �t Q the,City um San Juan Capistrano, County of Orange, State of contl adopted 6rdinanu�975 enfitied: California; that the notice, of which the annexed AN Y OF.SAN UAN.)SE.T. NO°rALl- R°Ni�THE PROVING AN AMENDMFNT TO TFIE OF..'OAL ZON; ANG MAP ANIS ADOP11NCa A';COMPREHENSIVE-QE- - is a true printed copy,has been published in each VELOPMENT PLAN FoR DISTRITo LA`.NOVIA-SAN .JUANMEADOWul- oJE0T(REZONE07.01) regular and entire issue of said newspaper and. 71 s ordinanne appioues a Rezone(RZj ameh.ding the zon. 1&designation o the 91 acre l rador":pportion of the Distrito La Nnuia ate trorn"Speen PianlProcise Plan" not in any supplement thereof on the following to'Plahged Community and establishes a:Compreherisiva Development Plan fol:the proposetl" nisirit9.La.Novia-:San Juan Meadows Rlanned+Comm unity".The Gompreh6n.siva - dates,to wit: C3sveiopmsnl Plam GWuld establish use,-aiid development standards fior the proposed residanYlal cumin©roial,offing,. November 25,2010 retail and edussfrsan uses and strictures A carlrfied copy t#the complete text of the Ordinance is "I Certl or declare under t le enal t $of posted gr d may be read in the;City Cierk':s ®e�artrrlent, p 240D Paseo A elmto,San Juan Capistrano;and ora copy maybe.oWined tram that nfiics at a nominal charge: perjury under the laws of the State of California Ordinen.eNo,97bwasad11 bylletolio if,�.rte: that the foregoing 1S true and COrTOCt": *YES: Cound&-Wmbems Allevato Nr#bar, Nielsen; Fees and Mayar Wo NOES Council flRembers:None Executed at Santa Ana, Orange County, SENT: aunGl Mdmbers None California, on Bated.November 17,2010 !s!Maria Morris,City Clerk Publish: Capistrano Valley News, November 25, 20to Date: November 25,2010 ssosa0s uV+ ignature r®r en Capistrano Valley News Y- 625 N.Grand Ave. 71` Santa Ana,CA 92701. (714)796-2209 11/19/2010 10:00 QCRFAXI C 2/2 s CITY OF SAN JUAN CAPISTRANO ADOPTION[OF ORDINANCE 975 Notcp is hE3refiV aven l on November 16,2010 Vie CRR Counn=t adopted Ordinance 875 entitled. AN CR.O PIANCE OF THE OIT'i COUNvDq- OF ';HE "iT',Ori SAN JUAN CAPISTRANO,0AL11''G�WA AP- PROVING AN AMENDMFNT TC THE OFFICW ZON- ING Nt',P AND ADCPITIN,A COMPPEHENd IVE DE- vELOFfvfEHT PLAN FOP= OIS'rB'TG t,A NQViA-SAN JUANMEADOW,PH}JLG! IH ,E]I.E'.57-011 7?1is cldina�-ice r.3ppra�es a e?ezone(RZJ amending�e rcr'i- ino desiQrlal of t''K, Parador pomon of the Il (Distrito La Novia sito horn "Specific Plan/Precis Plan" - tq plancect CommuniPi°and eslabtll' a Cornprehensrve Development Plan for no i3rf,�osed ,Dlstrro La NoviaSar, uan meadows Pler-ri9d Cornrnc:rijW The Comhrahsnsiva Development plan we l esIa fdt use and devetoprr[cnt uW>1r7a.rUrs ior tl^.ts proposed residential,commereia€,office, .'efcil and e,'7pest la;r uses andssucir;res A,eitifled copy olf the complete text of l Orchriance is - posted and may be read in M, City Doll Depar€anent, 324GO Paseo AFdelanto,San Juan Caimirano,and/or a copv rnav be abtallisd frt,rn tha of4ioe ata nominal charge. Ordinance No.995 was aoopted by Urn following vote. A'IES Qounai Men3bers_A'levatc, Hrfbar, Nielsen. Froese,and Mayor Use NOES COnndt Members'h=one A:3SENI CourndSMernbsrs t`Inre Dated.Nove€n,er 17,2010 is/Maia Wvnr ,GN Cler[r Publish- Capfstral `%4le, News, Nvver'=.Iber 25', 2010 aiaa«ag 11/19/2010 10:00 OCRFAXI C] 1/2 ORANGE COUNTY P&-GISTER COMMUNICA-MNS Fax . To: Fax: 19494931053 subject: Attn: Maria Morris- Revised proof Date: 11/1912010 09:56:47 AM Pages: 2 , including cover page From: Jennifer Chavez E-mail: j chavezCa/ocregi.stet.com Phone: Fax: 714-347-2578 Company: Orange County Register Address: 625 N. Grand Ave. Santa Ana, CA. 92701 11/17/2010 11;46 OCFHX1 2/2 CITY OF SAN JUAN CAPISTRANO ADOPTION OF ORDINANCE 975 f=ouco€5 herebV elven that ci-r June 15.2010€he Clty Oourz- cd adopted G dinance 975 entitled. P,N OFF)INA.NCE OF, THE OETY GOUN€IL OF THE C?Ty OF GAN JUAN CAPISTPANO,OALI:CRWA AP- PDOVIN(,,AN R,MENDMENT TO THE OFFICAL 70W IN7G MAP AND ADOPTING A.GOMPPE..HENSIVE DE- VELO'MENT PLAN 'OR G1.STrIJ-0 LA. NOViA-SAN MAN MIEI.DOWS PROJECT tFl=NE 10,T-01) Th.s cad'rianee approve,a Hezona IfRQ emondpg'Ir ezcn- inq deaidn aton or the 9i wa-"E3 Parat lor, porton of the 18 7[�tP.p ha NoVia site fi OM'Specific Plar/Precise Plan" kc:Plopnerl Oory lurki ,"ane estatrishes aComprenetisive 0-' 0orront P1'r Ian(or the proposed"Distrito La NoviaSan Juan meadows Pamod Community".Tho Compi ahensNa Deveioomert Plan would establish use and developmem standards for tde proposed residential,rornmerclat. ai3ice, reran and eouestnan uses endstluciures A.certlfed copy of the complOe mtof the Drcnanro is posted and r'naV be Tead In the CA, QeorK:s Deowherr, ,24uo Pasea A,delant�.Sar.Juaa CapisVano,andiora copv maV be obWiiad from mato-toe acanommeo charne_ Ord€nanee No.975 was adopted Cry the following vote: AYES CQL;rvi[Members Atfevato, Hribar, Melsen, Freese,and Mayor Lao NCES. C^ounoE[Memb9m Nora AHSLNT. hell Ivfember 5. INonn Dated hc.,ver,Oer 17,2010 /sj Mara Mlonia.City Clerk Publish. OaIDiA, 03`o Valley News, Navembs3' ?5. 20't0 ��so�4va 11/17/201O 11:46 OCRFAX1 D 1/2 ORANGE COUNTY REGISTER Fax Message To: Fax: 19494931053 Subject: Attn: Maria Morris Ad# 9308408 Cost.$ 60.00 Date: 11.11712010 11:42:33 AM Pages: 2 . including cover page From: Jennifer Chavez E-mail: j chavez�ocregistcr.com. Phone: Fax: 714-347-2578 Company: Orange County register Address: 625 N. Grand Ave. Santa Ana, CA. 92701 NOTICE OF TRANSMITTAL CAPISTRANO VALLEY NEWS ' Legal Publications CHARGE TO ACCOUNT NO, 0041125000 FOR PUBLICATION ON: THURSDAY, NOVEMBER 25, 2010 DOCUMENT TO BE PUBLISHED: CITY OF SAN JUAN CAPISTRANO — ADOPTION OF ORDINANCE — REZONE 07-01 — DISTRITO LA NOVIA/SAN JUAN MEADOWS PROJECT PROOF OF PUBLICATION: Please send to: City Clerk's Office, City Hall 32400 Paseo Adelanto San Juan Capistrano, CA 92675 fax (949) 493-1053/telephone (949) 493-1171 AUTHORIZED BY: /s/Maria Morris Maria Morris, City Clerk DATE: November 17, 2010 Date notice published - 11/25/2010 Date affidavit received - Date notice posted in designated posting places (3) - 11/23/2010 CITY OF SAN JUAN CAPISTRANO ADOPTION OF ORDINANCE 975 Notice is hereby given that on November 16, 2010 the City Council adopted Ordinance 975 entitled: AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF SAN JUAN CAPISTRANO, CALIFORNIA APPROVING AN AMENDMENT TO THE OFFICIAL ZONING MAP AND ADOPTING A COMPREHENSIVE DEVELOPMENT PLAN FOR DISTRITO LA NOVIA-SAN JUAN MEADOWS PROJECT (REZONE 07-01) This ordinance approves a Rezone (RZ) amending the zoning designation of the 9.1 acre "EI Parador" portion of the 18.7 Distrito La Novia site from "Specific Plan/Precise Plan" to "Planned Community" and establishes a Comprehensive Development Plan for the proposed "Distrito La Novia-San Juan meadows Planned Community". The Comprehensive Development Plan would establish use and development standards for the proposed residential, commercial, office, retail and equestrian uses and structures. A certified copy of the complete text of the Ordinance is posted and may be read in the City Clerk's Department, 32400 Paseo Adelanto, San Juan Capistrano, and/or a copy may be obtained from that office at a nominal charge. Ordinance No. 975 was adopted by the following vote.- AYES: Council Members: Allevato, Hribar, Nielsen, Freese, and Mayor Uso NOES: Council Members: None ABSENT: Council Members: None Dated: November 17, 2010 /s/ Maria Morris, City Clerk Publish: Capistrano Valley News, November 25, 2010 MEMORANDUM September 3, 2010 T : File FROM: Kristen Lewis; Administrative Specialist Refer to the following flex for information: 460.20 RZ 07-10 201 DISTRITO-LA. NOVA I SAN JUAN MEADOWS FILE 1 OF 460.2 RZ 07-10 261 DISTRITO O LA NO-VIA I SAN JUAN MEADOWS FILE 2 OF 4 466.2 RZ 07-10 201 DISTRITO LA NOVIA SAN JUAN MEADOWS FILE 3 OF 4 460.20 RZ 07-10 2010 DISTRITO LA NOVIA SAN JUAN MEADOWS FILE 4OF4 440.26 GPA 07-001 2067 DISTRITO LA NOVI San Juan Greek Rd & Valle Rd TR 14343 2008 DISTRITO LA NOVIA & SAN JUAN MEADOWS f £ / < E- f f l"- £ f / ( t F a - t i- < ,.,.. ..,., ..... f,. ... ,.......,, -:': •s. -,. , ,., , „_.... h r.: a.- it ,_ I. S I I .:.. .s. f ✓. ..., Z< i .:. <ar z.z $1 � 1 z -{( z f.. .... a . _.,. 'POP 'z- ::.-.: d t (z. ..::_'- ..,.. < ,., ....._<: } '.z z<r -:✓ / fr c v tf, 2. L.r; S Ff. 4. .. t s \ f < I c t s < f £ f f t <-,.- r /{. ._ , 3 \ / {{ 7 ✓ rf < ) E_:I L k Cf L )F < ""fff tam CL < rr. 1. F.. .\:.x .,....C,.,, i s E/ t. a /.. 2? z 1/ • /5 zI<- .4S2a. :., r.( ::€.%,: -a<,x. , (�f-4..Ifi f44..} l s ,.i? t} t-.,�.,.<.,,,.�•:,i,:! G . :,.;'.< :. ,aIZI'>\ .5 -F- ..l.. 3 3}: � r .,. ,<: r:.,._ <.,: � ,::..:, .. 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