Ordinance Number 976AN ORDINANCE OF THE CITY OF SAN JUAN CAPISTRANO,
CALIFORNIA, APPROVING A DEVELOPMENT AGREEMENT FOR THE
DISTRITO LA NOVIA-SAN JUAN MEADOWS PROJECT
THE CITY COUNCIL OF THE CITY OF SAN JUAN CAPISTRANO, CALIFORNIA, DOES HEREBY
ORDAIN AS FOLLOWS:
SECTION 1.
Whereas, Advanced Real Estate Services (ARES) has requested approval of a
planning applications for a project comprising two sites, including the 18.7 acre Distrito La Noma site
and the 135.1 acre San Juan Meadows site. Together, the two sites comprise a 153.8 acre project
and would combine the San Juan Meadows site and the Distrito La Novia site into a single project
that would be subject to a development agreement establishing rights and responsibilities on the
part of the applicant and the City. The Distrito La Novia site development proposes a mixed-use
development on the 18.7 acre Distrito La Novia property. including 75,100 gross square feet (68,200
net square feet) of commercial -retail use, 32,000 gross square feet (27,500 net square feet) of office
use, and 140 residential units (90 for -sale condominiums & 50 rental apartments). The Meadows
site proposes 94 single-family detached (SFD) dwelling units and a 775 -horse equestrian center,
and,
Whereas, the General Plan Land Use Element designates the westerly 9.1 acres of
the Distrito La Novia property as "Specific Plan/Precise Plan" and the easterly 9.7 acres as "PC"
(Planned Community) and the 1983 EI Parador Specific Plan would allowthe development of a 300 -
room hotel and conference center (160,000 GSF) including support facilities (e.g.,
convention/banquet facilities, restaurant and coffee shop, small retail shops incidental to the hotel,
and support services such as administrative offices, laundries, etc.); and,
Whereas, the General Plan Land Use Element designates the San Juan Meadows
component of the proposed project as "Planned Community" (PC) and comprises "The Mesa"
portion of the Forster Canyon Planned Community/Comprehensive Development Plan (CDP 81-01)
which would allows for the development of a 275 single-family detached (SFD) lots, and 165 -senior
apartments; and,
Whereas, on May 6, 2008, the City Council adopted Resolution 08-05-06-06 initiating
the General Plan Amendment (GPA) study process with respect to the Distrito La Novia-San Juan
Meadows project to study the proposed General Plan Amendments to the Land Use Element's land
use designations and the Circulation Element; and,
Whereas, the proposed project has been processed pursuant to Section 9-2.301,
Development Review of the Land Use Code; and,
Whereas, the Environmental Administrator has required preparation of an
environmental impact report pursuant to Section 15081 of those Guidelines; has issued the Notice
of Preparation pursuant to Section 15082 of those guidelines, has overseen the preparation of the
draft environmental impact report prepared pursuant to Section 15084 of those Guidelines, has
issued a Notice of Completion pursuant to Section 15085 of those Guidelines, has provided for
public review of the draft environmental impact report pursuant to Section 15087 of those guidelines;
reviewed all comments and prepared responses to comments pursuant to Section 15088 of those
guidelines; has otherwise complied with all applicable provisions of the California Environmental
Quality Act (1970); and all mitigation measures have been included in a Mitigation Monitoring
Reporting Program (MMRP); and,
Whereas, the Planning Commission conducted duly -noticed public hearings on
February 23, March 9, March 23, April 13 and April 27, 2010 pursuant to Title 9, Land Use Code,
Section 9-2.335, Public Hearing Procedures to consider the environmental determination and
documentation pursuant to Section 15074 of the California Environmental Quality Act, and to
consider public testimony on the proposed project and has considered all relevant public comments;
and,
Whereas, the City Council conducted duly -noticed public hearings on June 15,
August 12, October 6, and November 2, 2010 pursuant to Title 9, Land Use Code, Section 9-2.335,
Public Hearing Procedures to consider the environmental determination and documentation
pursuant to Section 15074 of the California Environmental Quality Act, and to consider public
testimony on the proposed project and has considered all relevant public comments; and,
SECTION 2, Ordinance Amendment.
The Development Agreement is hereby approved as provided by Exhibit A, attached
hereto and incorporated herein.
SECTION 3. Effective Date.
This Ordinance shall take effect and be in force thirty (30) days after its passage.
SECTION 4. City Clerk's Certification.
The City Clerk shall certify to the adoption of this Ordinance and cause the same to
be posted at the duly designated posting places within the City and published once within fifteen
(15) days after passage and adoption as required by law; or, in the alternative, the City Clerk may
cause to be published a summary of this Ordinance and a certified copy of the text of this Ordinance
shall be posted in the Office of the City Clerk five (5) days prior to the date of adoption of this
Ordinance; and, within fifteen (15) days after adoption, the City Clerk shall cause to be published the
aforementioned summary and shall post a certified copy of this Ordinance, together with the vote for
and against the same, in the Office of the City CIrk:
PASSED, APPROVED AND
ay of November, 2010.
DR, LONDRES USO, MA
2
ro -
STATE OF CALIFORNIA )
COUNTY OF ORANGE )SS
CITY OF SAN JUAN CAPISTRANO )
I, MARIA MORRIS, appointed City Clerk of the City of San, Juan Capistrano, do hereby
certify that the foregoing is a true and correct copy of Ordinance No. 976 which was
regularly introduced and placed upon its first reading at the Regular Meeting of the City
Council on the 2nd day of November 2010 and that thereafter, said Ordinance was duly
adopted and passed at the Regular Meeting of the City Council on the 16th day of
November 2010 by the following vote, to wit:
AYES/ C NCIL MEMBERS: Allevato, Hribar, Nielsen, Freese, and Mayor Uso
NOES a U' NCIL MEMBERS: None
ABSEN, 0 NCIL MEMBERS: None
S, CITY %ERK
STATE OF CALIFORNIA )
COUNTY OF ORANGE ) ss AFFIDAVIT OF POSTING
CITY OF SAN JUAN CAPISTRANO )
1, MARIA MORRIS, declare as follows:
That I am the duly appointed and qualified City Clerk of the City of San Juan Capistrano,
That in compliance with State laws, Government Code section 36933(1) of the State of
California, on the 3rd day of November 2010, at least 5 days prior to the adoption of the
ordinance,-) caused to be posted a certified copy of the proposed ordinance entitled:
AN ORDINANCE OF THE CITY
CALIFORNIA, APPROVING A DEVE
DISTRITO LA NOVIA-SAN JUAN ME.
This document was posted in the Office of thi
MARIA II
San Jua
JUAN CAPISTRANO,
AGREEMENT FOR THE
IROJECT
RIS, CI JERK
pistrano, lifornia
0976
STATE OF CALIFORNIA j
COUNTY OF ORANGE f ss
CITY OF SAN JUAN CAPISTRANO )
I, MARIA MORRIS, declare as follows:
AFFIDAVIT OF POSTING
That I am the duly appointed and qualified City Clerk of the City of San Juan Capistrano;
that in compliance with State laws, Government Code section 36933(1) of the State of
California.
On the 17th day of November 2010 1 caused to be posted a certified copy of Ordinance
No. 976, adopted by the City Council on October 19, 2010 entitled:
AN ORDINANCE OF THE. CITY OF A JUAN CAPISTRANO,
CALIFORNIA, APPROVING A DEVELO'PM N A REEMENT FOR THE
DISTRITO LA NOVIA-SAN JUAN MEADOWR JECT
This document was posted in the Office of the City�'Cl `l
MAI,IA IIRRIS, CITY C
San Juan Capistrano, Ca
4
0976
RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO:
City Cleric
City of San Juan Capistrano
32404 Paseo Adelanto
San Juan Capistrano, CA 92675
(Space Above This Line for Recordcr� Office Use Only)
(Exempt from Recording Fee per Gov. Code §§ 6103 and 27383)
DEVELOPMENT AGREEMENT
(San Juan Meadows/Distrito la Novia)
by and between
CITY OF SAN JUAN CAPSTRANO
and
ADVANCED GROUP 99 -SJ
and
ADVANCED GROUP 03-79-2
EXH1BfT A
DEVELOPMENT AGREEMENT
(San 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 day 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 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 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
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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 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 Juan Meadows project.
4. Over one mile of new equestrian trails linked to the City's trail system
together with trailhead parking and two neve lookout points.
S. 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.
b. 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
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• Tentative Tract Map (TTM) 17226
• Architectural Control (AC) 07-14
• Grading Plan Modification (GPM) 07-01
P. 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 determined 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, 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 Plan feasible.
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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, 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:
L 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 8 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
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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
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.
L9 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 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 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 official records of CITY and shall be utilized whenever required to
interpret or apply this Agreement.
1.12 Development Plan Approval(s). "Development Plan Approval(s)" means the
approvals of the City Council described in Exhibit "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.
1.16 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
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.
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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" 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 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 "Term") of this Agreement shall commence on the Effective Date and shall
terminate at the enol of the day immediately preceding the sixth (6tn) 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 recognizing 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 parcel(s) 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 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 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,
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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 i
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.
3.1.3 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; (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 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
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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 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 Development. The California Supreme Court held in Parolee
Construction Company v. City of Camarillo, 37 Cal.3d 465 (1984), that the failure of the parties
to address certain limits on a City's ability to condition, restrict, or regulate a development
allowed a later adopted initiative to restrict the development. This Agreement is intended to cure
that deficiency by expressly addressing the timing for the Development, the vested rights
afforded by this Agreement, and the scope of City's reserved authority described in Section 3.2
hereof. Except as expressly set forth in the Development Plan and Development Plan
Approval(s), regardless of any future enactment, whether by initiative or otherwise,
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
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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 Approvals - Cooperation.
4.1.3.1 Processin . 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 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
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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 Mans. Pursuant to Government Code Section
66452.6(a)(1), 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 map 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 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 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
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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.
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 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
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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 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 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
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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 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 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 CI"l"Y, 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 enter into additional written
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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.
53 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 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
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:
5.5 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,
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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 Approvals) 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 5.1 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 63, 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 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 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
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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 of 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 making CITY and DEVELOPER. joint venturers or partners.
9. Amendment or Cancellation of A reement.
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 authorised 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 good faith compliance as CITY, in the exercise of
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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.
103 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 CitCouncil. 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 A reement. 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 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.
11. 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
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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 rewired 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 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 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 .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 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 outer 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 (POMP)
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 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
12.4.2 Any 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 five days
after the end of the delay or (45) forty five days before the end of the Term, 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 San Juan Capistrano
32400 Pasco 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 Rockiield Boulevard, Suite 100
Lake Forest, CA 92630
Attn: Robb Cerruti
with a coo:
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.
1.4. Attorneys' Fees.
If legal action is brought by one Party against another Party for breach of this Agreement,
including actions derivative from the performance of this Agreement, or to compel performance
under this Agreement, the prevailing Party shall be entitled to an award of its costs, including
reasonable attorneys' fees, and shall also be entitled to recover its contribution to the costs of the
referee referred to in Section 8.4 above as an item of damage and/or recoverable costs.
15. 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.
16.2 Encumbrances and Lenders' Rights. The Parties hereby agree that this Agreement
shall not prevent or limit DEVELOPER (including without limitation any Development
24
Transferee hereunder), at any time or from time to time in any manner, at its or their sole
discretion, from encumbering the Property, the improvements thereon, or any portion thereof
with any mortgage, deed of trust, sale and leaseback arrangement, or other security device.
CITY acknowledges that the holder of any such security interest in all or any portion of the
Property may require certain clarifications 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 8.1 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 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. Severabilitv of Terms.
If any term, provision, covenant, or condition of this Agreement shall be determined
invalid, void, or unenforceable, the remainder of this Agreement shall not be affected thereby if
the tribunal finds that the invalidity was not a material part of consideration for the affected Party
or Parties. The covenants contained herein are mutual covenants. The covenants contained
herein constitute conditions to the concurrent or subsequent performance by each Party benefited
thereby of the covenants to be performed hereunder by such benefited Party.
18. Subse cent 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 andagree
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.
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
W61
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 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. CITY OF SAN JUAN CAPISTRANO, a
municipal corporation
By:
AT
City Clerk
APPROVED AS TO FORM:
Londres Uso, Mayor
City Attorney
Dated: , 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:
Name:
Title:
By:
Name:
Title:
28
STATE OF CALIFORNIA )
}
COUNTY OF ORANGE )
On , before e, 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, mm 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 DESCRIP'T'ION OF THE DISTRITO PROPERTY
That certain real property located in the City of San .Tuan Capistrano, County of Orange, State of
California, described as follows:
PARCEL l: 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 1.16 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 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 321 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 35° 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 17297 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 700 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 1° 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 1. 14,80
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 are 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 14°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 158.06 feet along said curve through a
central angle of 60°22'32", 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 70129'22" to the Point of Beginning.
PARCEL 4: 3:'hat 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 IS 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 Boob 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 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 11.20, Page 253, of Official Records, said point being South 01' 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 410 49' 07" East 51.18
feet to the point of intersection with a curve concave northerly having a radius of 150 feet, at which point
a tangent bears North 77° 02' 03" West; thence northwesterly along said curve, through an angle of 14°
11' 56", an arc distance of 37.17 feet to said westerly line; thence, along said westerly line, North 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 Sari 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 "A -Z"
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 reap filed in Book 4, Page 1.5 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 57630 feet, North
41 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 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 230 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°
11' 56", an arc 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 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.
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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;" 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 1.8.7 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) 07-114. 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 .Tuan Meadows" site.
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EXHIBIT "C"
DEVELOPMENT BENEFITS AND OBLIGATIONS
Development Impact Fees
i) Limit on Exactions, Mitigation Measures, Conditions and Development
Tees. 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, "Tees, 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 Nees 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).
.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 trap 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.
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4. Traffic Improvements
i) The following traffic improvements shall be constructed by the Developer:
a) Valle Road/San 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 Tuan 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 Sia Ramps intersection to provide a westbound shared left/right-tum
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 .Tuan 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/I S 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 ,Tuan 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)
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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 reap 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 5th "Certificate of Occupancy" for the "Meadows" site,
whichever occurs first.
ON
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 time Code.
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EXHIBIT "DTT
AFFORDABLE 14OUSING 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
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.
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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.