Loading...
The URL can be used to link to this page
Your browser does not support the video tag.
15-0602_SOUTH COAST INVESTOR_F15_Correspondence 1
V:EWM E Y E.It. 5. D1 L 1 10 A7'-URNtl�F A7 LAW CHARLES S. KROLAKOWS91 File No.: Charles.Krolikowski@ndtf.com TbD June 2,2015 VIA HAND DELIVERY City Council of the City San Juan Capistrano City Clerk of the City of San Juan Capistrano 32400 Paseo Adelanto San Juan Capistrano, CA 92675 Re: Save Our Water Resources adv. C.fty of San Juan Capistrano—Objections to Assignment of Development Agreement for Plaza Banderas Dear City Council and City Clerk: This office represents Save Our Water Resources ("SOWR")with.respect to the pending development by Rivendell Land Company, Inc. ("Rivendell') of the Plaza BanderasRotel and Mixed Use Project("project"). SOWR hereby objects to the City of San Juan Capistrano ("City") approving any alleged after-the tact ass]gnmc rit of the Development Agreement ("DA") with Stroscher G3, 1.1-C ("Stroscher"). Under Section 2..5.1 of the DA, any assignment of the same required"prior written approval" by the City, (l`xhibit 1.) [Jere, it appears that Stroscher already assigned its rights under the DA in March 2015.. (Exhibit 2.) Thus, the City has no power or authority to approve this "assignment" since it occurred before City approval. In addition, Stroscher already assigned its rights to "all entitlements and other agreements related to the development of the Property" in. November 2013. (Exhibit 3.) Thus, Stroscher has no rights to assign to Rivendell. What makes natters even worse for the City is that on March 17, 2015, the City approved entering into a contract with Rivendell related to the construction of a water pipeline for the Project. (Exhibit 4.) So before there was any City consent to assign the DA, which bad already been assigned by Stroscher, the City was approving Project--related modifications to the benefit ot'Rivendell. Further, as part of the DA. the City agreed to relax certain requirements by reducing water "development impact fees" by as much as 75% for this Project. (Exhibits 5 and 6.) As explained below, further environmental review is therefore necessary. Because the consent to the assignment is a discretionary approval (Exhibit 7), it is subject to the California Environmental Quality Act ("CEQA") review. Indeed, in section 3.5 of the DA, it identifies that there are circumstances that would trigger further review of the Project under CEQA pursuant to California Public: Resources Code, Section 21166 and'Fitle 14 California Code of Regulations, Section. 15162. (Exhibit S.) Here, such circumstances exist. 1315 N.CAL,€FORNIA at.VD 895 DOVE STREET I 51155 HOWARD HUGHES Pxwv SUITE 500 5TH FLOOR EI sl%€7E 550 LNF'_NX CREEK,CA 9a 599 Nr-WPORT BEACH, CA 92660 C.A.,VEGAS,NV 89169 T 925 988 9200 3 T 949 854 7000 7 702 777 7500 F 625 985 5290 F 949 854 7099 F 702 777 7590 City Council of the City San Juan Capistrano June 2, 2015 Page 2 While the staff report states that this discretionary action is exempt from CEQA there is no reference to which categorical exemption applies and no exphu'lation of why it is exempt. In cases where an EIR was certified in the past(in this case,four years), further governmental actions in furtherance of a project must account for changed circumstances "due to the involvement of new significant environmental effects or a substantial increase in the severity of previously identified significant effects." (CEQA Guidelines, section 15162, subd. (a)(2).) Government agencies also must account for"[n]ew information of substantial importance, which was not known and could not have been known with the exercise of reasonable diligence at the time the previous EIR was certified," (Id. at section 15162, subd. (a)(3); Cal. Pub. Res. Code, section 21166, subd. (c).) Mere, it is a matter of record that the State of California is experiencing an unprecedented drought, which his resulted in a proclamation of a state of emergency and executive orders mandating water conservation measures. (Exhibits 9 and 10.) These issues did not exist and were not addressed at the time the EIR was certified by the City. Indeed, the City Council itself has Agenda. Item E1, which adopts on urgency ordinance declaring a Stage 3 Water Emergency and mandating reduction of water usage by 28%. That is new information of"substantial importance"which was "not known and could not have been known with the exercise of reasonable diligence at the time the previous EIR was certified." (Id. at section 151.62, subd. (a)(3); Cal. Pub. Res. Code, section 21166, subd. (c).) A vote on this assignment qualifies as a.City action. in furtherance of a-project" and therefore it is subject to further review in the forth of a supplemental ITR.to examine the impact of this Project on the City's water supply and its ef"ect on the City's ability to comply with mandated drought measures. If no such study is undertaken, the City will have violated CEQA and subject itself to potential liability and litigation fees and costs. As the Comprehensive I3evelopnient Plan indicates, it is the City's responsibility to ensure that the Project complies with. CEQA as the site develops. (Exhibit 11,) Finally, the contract approval for the Rivendell water pipeiinc project and tonight's actions purporting to "assign" development agreement rights have established a pattern of serial. approvals for segments of the Project. The CEQA. "piecemeal]rig" or "segmentation" doctrine prohibits agencies from evading full environmental review of a project by chopping up proposed projects into bite-size pieces" which, when. taken individually and in isolation of the: others may have no significant adverse effect on the environment, but cumulatively may have a significant impact. (Lake C ouqv Energy Council v. County ofLake (1977) 7€1 Cal.App.3d 851, 854 139 Cal..Rptn 1761; Burbank-Glendale Airport Authority v. llensler (1991)233 Cal.App.3d. 577, 592 284 Cal.Rptr. 498].) By undertaking the above actions without proper review of changed circumstances that might trigger the need for a supplemental EIR, the City appears to be circumventing proper CEQA. review for the Project. Based on the forgoing and the law of the State of California, the City is estopped/prohibited from approving any assignment of the DA to Rivendell, or its alleged subsidiary (there has been no documentary evidence submitted that R.ivendell is the sole City Council of t.be (11ity San .Tuan Capistrano .Tune 2, 2013 Page 3 owner/member of South Coast Investors, Il), If you have any questions or cornments concerning the above, do not hesitate to contact me. Very truly yours, k� e Ch s S. olikowski Encl.. cc: Clients EXHIBIT 66 31 In the event this Agreement terrhhinates 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 STR.OSC'HFR, or any ether successor or assignee of either of there, CITY shall cooperate, at no cost to CITY, in executing in recordable forin a document prepared by the requesting party that confirms the termination of this Agreement with respect to the Property or applicable portion thereof. 2.5 Transfers and Assigninents. 2.5.1 STROSCHER ("Owner") shall not assign all or any part of this Agreement QUW1 thout the prior written approval. of the CITY. Such written approval by the CITY shall not be reasonably withheld, provided that: (a) if Owner's proposed assignee is an entity, such entity shall legally formed and qualified to conduct business in the State of California; (b) Owner shall have delivered evidence to CITY that Owner's proposed assignee has the ability to comply with the Agreement; (c) Owner and its/their assignee execute an assignment andassumption agreement pursuant to which the assignee expressly assur es all of Owner's obligations under the Agreement; and (d) CITY shall bear no expenses in connection with such assignment. Notwithstanding any other provision of this Agreement, Owner need. not obtain the prior written approval of CITY for the assignment of this Agreement to a limited liability company, limited partnership or corporation wholly-owned by, or under Owner's control. 3. DeveloUrnent Provisions. 3.1 Vestini2. 3.1.1 Project. CITY covenants STROSCHI R has and shall have the right to Develop the Project on the Property consistent with the Development Plan and the Development Plan Approval.(,), including, without limitation, the Future Development Approvals after the same have been issued or approved by CITY and become effective ("vested right"), 3.1.2 Limits---on Develo £�. The California Supreme: Court held in.. purdee Construction Company v. Ciry 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 reshict 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 32 hereof Except as expressly set forth in the Development Plan and Development Play Approval(s), regardless of any future enactment, whether by initiative or otherwise, S` ROSCHER shall have the: vested right to Develop tl.e .=at ous componetnts of the Project 1x7such order, at sLl:h rat(',, and. at >iiClh illilC`3 as STROSCIJER deems appropriate within the exercise of its subjective buslness judgment. Specifically, CITY agrees that STROSC1 ER shall be entitled to apply for and receive the Future Development Approvals and to Develop and use the Property at any time, provided that such application is made and such Development occurs in accordance with this Agreement and the other Development Plan Approval(s), No future amendment of any CITY lav 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 mariner inconsistent with the Development Plan or the Development Plan Approval(s) (including without limitation the Future Development Approvals wheri 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. -9- EXHIBIT 442" RECORDING REQUESTED BY AND WHEN RECORDED,MAIL TO: Rivendell Land Company, Inc. 31866 Camino Capistrano San Juan Capistrano,CA 92575 Attn. William J. Griffith (Space Above For Recorder's Use) ASSI:GM ENT°AND ASSUMMON OF DEVELOPMENT AGRFFMFNT This ASSIGNMENT AND ASSUMPTION OF DEVELOPMENT AGREEMENT (this "Assignment'D is made and is effective as ofthe date ofrecordation hereof(the"Effeedve Date'), by and between STROSCHER G3,LLC,a California limited liability company ("Assignor")and RIVENDELL LAND COMPANY,,INC.,a California corporation("Assignee'D. RECITAL The City of San Juan Capistrano, a municipal corporation (the"City"} and Assignor entered into that certain Development Agreement(Plaza Banderas Hotel and Mixed Use Project) dated as of July 5,2011 and recorded in the Official Records of Orange County,California on August 4,2011 as Instrument No.2011000382839(the"Development Agreement"), Capitalized terms used and not defined herein shall have the meanings set forth in the Development Agreement. NOW, THEREFORE, for good and valuable consideration, the receipt and adequacy of which are hereby acknowledged,the parties hereby agree as follows: I. Assignment Assignor does hereby transfer and assign to Assignee all of its right, title and interest in and to,and obligations under,the Development Agreement(and all documents and instruments relating to or implementing the Development Agreement)with respect to the Property. 2. Assertion. Assignee hereby accepts said assignment and agrees to keep, perform and be bound by all the terms,covenants and conditions contained in the Development Agreement(and all documents and instruments relating to or implementing the Development Agreement) relating to the Property,on the part of the Owner or Developer therein,which accrue and are to be performed subsequent to the date hereof,as though Assignee were the original Owner or Developer raider the Development Agreement, 3. Condition Precedent_ This Assignment is conditioned on and shall be effective only upon recordation of a deed conveying fee title to the Property to Assignee. In the event such condition is not satisfied within ninety(90)days from the date hereof,this Assignment shall terminate and be of no further force or effect. 22MO t6U5'24MR 919=6 ATTACHMENT 3 IPl .WITNESS WHEREOF, the parties have caused this Assignment and.Assumption of Development Agreement to,be duly.executed as of the date First above written. ASSIGNOR: STROSCHER G3,.LLC, a California limited liability company l3. Title- _ Lecs, j-r A Notary Public or other officer completing this certificate.verifies only the identity of the Individual who signed the document to which this certificate is attached,and not the truthfulness, accuracy,.or validity©fthait document. State of California ) county ofO�e Can before me, ;� (iA n nor i-Rnd C ur of urrrea) Notary Public,personally appeared who proved to me on the basis of satisfactory evidence to be the person(s)whose name(s) is/aft subscribed to the within instrument and acknowledged to me that Wshe/they executed the same in his/her/their authorized capacity(i.es),and that by MAer/tkelr signature(s)©n the instrument the person(s),or the entity upon behalf of which the person(s)acted,executed the instrument I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WUNESS racy hared and official seal. Signatu� (Seal) HE; KEL t:€J<Thft'�F'JCtL�rC'AI.i-Oil"kiR ?.CtSOn9i6+aS2-0kl3A Qi93825 EXHIBIT 443" GENERAL ASSIGNMI✓NT PLAZA BANDERAS PROPERTY General Assignment FOR VALUABLE CONSIDERATION, the receipt and sufficiency of which are hereby acknowledged, STROSCHER G3, LLC, a California limited liability company ("Assignor" hereby assigns, transfers and conveys to GCRE/SJC, LLC, a Delaware limited liability company LI(Mims, "Assignee"), any and all of Assignor's right, title and interest in, to and under(i) all entitlements d other agreements relating to the development of the Property; (ii) all rights, warranties, awards, and any similar rights relating to and benefiting the Properly or the asse transferred hereby; (iii) all intangible rights, goodwill and rights benefiting the Property; (iv) all development rights benefiting the Property; (v) all personal property located on the Property; (vi) all rights to receive a reimbursement, credit or refund from the applicable agency or entity of any deposits or fees paid in connection with the development of the Property, including without limitation, the Reimbursements (as defined below); (vii) all warranties, guarantees and indemnities (including, without limitation, those for workmanship, materials and performance), whether or .not written, related in any way to the Property,' including, without limitation, construction warranties, guaranties and indemnities from, by or against any contractors, subcontractors, laborers or supplier of labor, materials or other services relating to the Property pursuant to agreements respecting the Property ("Contracts"), the foregoing shall not include any obligations of Assignor under any Contracts nor shall it constitute an assumption by Assignee of any obligations of Assignor under any Contract, including, without limitation, the obligation to pay any .fees, costs or charges of any kind thereunder-, and (viii) all tangible and intangible items relatedto the acquisition, use, development, design, construction, permitting and entitlement of the Property for the development of otherwise, including without limitation., the following. tentative and final maps; grading plans anal other improvezn7eznt plans (including architectural and engineering designs, drawings, plans, studies and reports); plan check fees, impact fees, development fees (including those to be paid frorn any community facilities district or other public funding source), prepaid water fees and other sums that. have been deposited with. or paid to the applicable governmental authority; any utility company or private panty relating to the pernnitting or development of the Property; any and all other permits, licenses and authorizations of any kind, whether approved or in process; any and all other land use. entitlements, development rights, sewer and water capacity, trip generation rights, density allocations and othe� rights or approvals relating to or authorizing the development of the Property; all studies, tests, contracts, plans and specifications (including architectural designs, drawings and plans) n"elatxtn to the Property; and all proceeds of additions and accretia,�s to, substitutions and replacennennts for, and changes in any of the foregoing, Any capitalized terrn used herein but not otherwise defined herein shall have the meaning ascribed. to such term in that certain Real Property Contribution. Agreement and Escrow Instructions, by and. between Assignor and Assignee relating to the Property, dated as of November 1_j_, 2013, as may be amended from time to time (collectively, the "Contribution Agreement"). rhe foregoing Assigrunent is limited as provided in, and is subject to, the terms and provisions of the Contribution Agreement, and is made without any covenant, warranty or representation by, or recourse against, Assignor or any of Assignor's affiliates of any kind whatsoever, except as expressly warranted in the Contribution Agreement. Each of the parties hereto agrees to cooperate in good faith with each other, and to execute and deliver such further documents and perform such other acts as may be reasonably necessary or appropriate to effectuate the assignments contemplated hereby, [Remainder of Page Intentionally Left Blank] I-N, WITNILI'SS WHERE"OF. this Genend Assltp'nment 11"rs beej) e\ uu,cl. r s ONo '011 to be nn,,ide effecdw, upon the date, in which Assignee, acquires Ise Otic to the Property pm-suai'a to the Contribution Agreement, "Assignor" STROSCIIER G3, LLC, a Califurnia 11mited liability compmy 13 Y: STROSCHE'R CAPISTRANO, LLC, .a Delaware limited hability coiupany, Sole Ir cn-iber By: Grotohen Member By- }Inca 1". Mittelhauser,Mcmber Melissa L. Thoinson, Member B-v: Bc"n.jalnij'i BThomson- mon"'ber 1 A7. N f:A I 'J'1, IN WITNESS WHEREOF, this General Assignment has been executed as of November j, 2013, to be made effective upon the date in which Assignee acquires fee title to the Property pursuant to the Contribution Agreement. STROSCHER G3, LLC, a California Iirnited liability company By, STR.OSCHER CAPISTRANO,LLC, a Delaware limited liability company, Sole Member By: Gretchen Stroscher Thomson, Member By: 1WM . - .............. zca q Mittelhauser, Member By: Melissa L.Thomson,Member By: Benjamin B. Thomson, Member H:\diaa{faEdrn4 +lst cirU:I R-1 au \CARL{6i15i EY-Iare 9andc;.i Land Mn,f(:NWrXr PLAZA RANME SPW2 PGlTf'Yd— EXHIBIT "4" 3/1712015 Am 09 City of Sari Ju n Capistrano , gpor TO: Karen P, Brust, C' y M FROM: Keith Van Der Masten, Public Works and Utilities Director Prepared by: Eric Bauman, Assistant Utilities Director DATE: Parch 17, 2015 SUBJECT: Consideration of a Construction Agreement and an Appropriation of Funds for the Construction of a Water Pipeline Across the 1-5/Ortega Highway Bridge (CiP 11805)(Rivendell Land Company, Inc.) RECOMMENDATION: By motion: 1. Approve a Construction Agreement with the Rlvendell Land Company, Inc. for the construction of a water pipeline across the 1-5/Ortega Highway Bridge to serve the fire flow needs of a property it is in the process of acquiring; and 2. Authorize staff to accept a deposit check in the amount of $640,000 to cover the cost of construction, and, 3. Appropriate an additional $640,000 to Capital Improvement Project (CIP) No, 11805, Water and Sewer Lines at Ortega Highway. EXECUTIVE SUMMARY: The City, and Stroscher G3, LLC (Stroscher) entered into a Development Agreement, effective August 3, 2011, for the Plaza Banderes Hotel and Mixed Use Project (Project). Rive,ndell Land Development, Inc. (Developer) proposes to be the successor in i�interest to Stroscher°s rights and obligations under the Development Agreement and has agreed to be bound by the terms and conditions of the Development Agreement; when the sale is effective. Section 4.1.3 of the Development Agreement requires a method to provide necessary fire flow to the Project. The New Ortega Pipeline, along with the line already under construction by the City, provides the means and method of meeting the.fire flow demands of the Project. The Developer wishes to secure a means of meeting the fire flow demands as a condition of its purchase of the Project and desires that the City now construct the New Ortega Line as part of the Ortega Bridge Project. This will assist the Developer in cast-effectively meeting its fire flow obligations under the Development Agreement. Time is of the essence to coordinate with the Ortega Bridge Project City Council Agenda Report March 97, 2015 Page 2 of 4 construction schedule and avoid additional impact to completed elements. The Developer agrees to enter into a Construction Agreement with the City and provide the City with a deposit for the actual casts In the amount of $640,000, According to the Agreement, the Developer will pay the City for the cost of all work. In the event that Change Orders, approved by the City Engineer, have resulted in the total costs of the work exceeding $640,000, the Developer will deposit additional, sufficient funds to complete the work. DISCUSSIONIANALYSIS: Caltrans is in the process of reconstructing the Ortega Bridge over the 1-5 near the Project site (Ortega Bridge Project). As part of the Ortega Bridge Project, the City obtained from Caltrans alignments for two pipelines, and reserved two cells in the bridge and roadway for these lines to meet the City's Master Plan objectives. The Project's fire flow needs will be met with the construction of two parallel 12-Inch pipelines in the Fridge -- the Replacement Ortega Line and the New Ortega Ling. The City has negotiated a cooperative arrangement with Caltrans whereby the City will be permitted to construct the pipelines across the bridge as part of the Ortega Bridge Project. The City's Consulting Engineer, Dexter Wilson, completed plans and specifications for the pipelines. The City bid the project and obtained formal competitive bids for the work, which included both pipelines. Charles King Company Inc. (CKC) was the successful low bidder. However, Stroscher cancelled its plans and its participation in the New Ortega Line. The Contract Agreement with CKC was subsequently awarded without the New Ortega Line. The Developer desires that the City now construct the New Ortega Line as part of the Ortega Bridge Project to assist the Developer in cost-effectively meeting its fire flow obligations under the Development Agreement. The Developer also agrees to deposit, with the City, funds in advance for the costs of construction. The City is willing to undertake such construction pursuant to the provisions of the Agreement (Attachment 1). The timing of the re-inclusion of this pipeline has resulted in work which now impacts completed .facilities, requiring additional cast and effort to remove and reconstruct impacted elements. The projected costs associated with the work are based upon formal bids received by the City, and sub-contractor bids for items of work not covered in the original bid. Per the Construction Agreement, Rivendell will provide the City a deposit in the amount of $640,000; plus Rivendell will pay the City, per the Agreement, for any costs exceeding the deposited amount. If this agreement is accepted, staff will return to the City Council with amendments to the Construction Contract with Charles King Company, Inc., Construction Management Agreement with RBF Consultants Inc., and Design Agreement with Dexter Wilson Engineers for the costs of additional work related to the Now Ortega Line. City Council Agenda Report March 17, 2016 Page 3 of 4 FISCAL IMPACT: Rivendell agrees to pay in advance to the City $640,000 for the cost of all work, estimated on the basis of identified bid items received for the work. This includes construction costs., general construction overlhead, engineering design costs, construction management costs, staff time, construction inspection, and traffic contras. Rivendell will be expected to pay the City for costs of the work that exceed $640,000, in the event that Change Orders, approved by the City Engineer, have resulted In the total costs of work exceeding $640,000. Upon completion of the work, as defined by California Civil Code Section 9200, if any portion of the deposit has not been paid to the Contractor, their Consultants or staff, by the City, such residual deposit shall be returned to Rivendell. ENVIRONMENTAL IMPACT: The proposed project was found to be statutorily exempt from review under the California Environmental Quality Act(CEQA). The Environmental Administrator signed a Notice of Exemption and posted it on August 17, 2012 PRIOR CITY COUNCIL REVIEW: 0 On June 30, 2011, the City Council approved the first reading of an ordinance approving the Development Agreement between the City and the Plaza Banderas Hotel. a On July 5, 2011, the City Council approved the second reading of an ordinance approving the Development Agreement between the City and the Plaza Banderas Hotel. On August 3, 2011, the City Council approved the Development Agreement between the City and the Plaza Banderas Hotel. • On September 6, 2011, the City Council approved a Personal Services Agreement for Engineering Design Services for the 1-5 and Ortega Highway Interchange Pipeline Relocation Project (CIP 11805) with Dexter Wilson Engineers, Inc. On August 7, 2012, the City Council approved the plans and specifications prepared for the 1-5 and Ortega Highway Interchange Pipeline Relocation Project for bid; and, authorized staff tv proceed wlth negotiations with the owners of the Plaza Banderas Hotel. d On October 2, 2012, the City Council rejected the one bid submitted by Steve P. Rados, Inc., ("Rados") and directed staff to rebid the project(Attachment 2). M On December 11, 2012, the City Council approved the appropriation of funds and the award of a Construction Agreement for the 1-5 and Ortega Highway Interchange Pipeline Relocation Project(CIP 11805). « On January 4, 2013, the City Council approved a Personal Services Agreement for Construction Management Services for the 1-5 and Ortega Highway Interchange Pipeline Relocation Project (CIP 11805) with RBF Consulting. City Council Agenda Report Mare 17, 2015 Page 4 of 4 ® On December 17, 2013, the City Council approved Amendments to a Utility Agreement with Caltrans to Design and Construct the Relocation of a Pipeline Owned by the Capistrano Mutual Acres Water Company. COMMISSIONICOMMITTEEBOARD REVIEW AND RECOMMENDATIONS: o The Utilities Commission will review this item at its regular meeting on March 17, 2015. If the Utilities Commission recommendation differs from staff's recommendation, staff will prepare a Supplemental Agenda Report. NOTIFICATION: Rivendell Land Company, Inc. ATTACHMENT(S): Attachment 1 —Construction Agreement CONSTRUCTION AGREEMENT This CONSTRUCTION AGREEMENT (the "Agreement"), entered into as of 2015 ("Effective Date"), is made between. the CITY OF SAN JUAN CAPISTRANO, a Municipal Corporation ("City"), and Rivendell Land Company, Inc., a California Corporation("Developer")(each a"Party"and collectively the"Parties.") RECITALS: WI-IEREAS, the City, and Stroscher G3, LLC ("Stroscher") entered into that certain Development Agreement, effective August 3, 2011, attached hereto as Exhibit A("DA"), for the Plaza Banderas Hotel and Mixed Use Project("Project");and, WHEREAS, Developer proposes to be the successor in interest to Stroscher's rights and obligations under the DA; and, WHERE Section 4.1.3 of the DA requires Developer to arrange for a method to provide necessary fire Bow to the Project; and, WHEREAS, Caltrans is in the process of reconstructing the Ortega Bridge over the 1-5 near the Project site("Ortega Bridge Project"); and, WHEREAS, as part of the Ortega Bridge Project, the City has requested Caltrans to provide alignments for two pipelines, and to reserve tura cells in the bridge for these lines; and, WHEREAS, the Project's fire flow needs can be met by the construction of two parallel I2-inch pipelines in the bridge—the Replacement Ortega Line and the New Ortega Line (jointly, `Pipelines"); and, VnWREAS, City has negotiated with. Caltrans a cooperative arrangement whereby City will be permitted to construct the Pipelines across the bridge and roadway as pail of the Ortega Bridge Project; and, WHEREAS, Developer desires that the City construct the Pipelines as part of the Ortega Bridge Project to assist Developer in cost-effectively meeting its fire flow obligations under the DA, and desires to pay, in advance, the City for the actual costs of construction including design, ,permitting,construction management, City staff time,and traffic control assts; and, WHEREAS, City is willing to undertake such construction pursuant to the provisions of this Agreement. 012999iU ON2016150.1 -1- A.tlachmel t NOW, THEREFORE, in consideration of the mutual covenants and agreements herein contained and for other good and valuable consideration,the receipt and sufficiency of which are acknowledged, City.and Developer hereby agree as follows: ARTICLE 1 CITY'S OBLIGATIONS 1.1 City shall prepare contract doemnents(``Construction Documents"), advertise,and award and administer a contract ("Construction Contract") for construction of the Pipelines and for necessary and incidental work associated with construction of the Pipelines ("Mork") which construction shall be completed by the lowest responsible bidder("Contractor"). 1.2 City shall be solely responsible for managing and supervising the, 'work in accordance with all applicable regulations, laws, the Construction Documents, and the Construction Contract, 1.3 City agrees to pay Contractor, timely and in full, for completion of the Work, subject to the provisions of the Construction Contract. 1.4 City agrees that upon completion of the Work and Developer's full payment of the Reimbursable Casts (as defined below), the City will provide to Developer written acknowledgment that the Developer's assumed obligations under Section 4.1.3 of the DA, to provide necessary fire flow to the Project,have been fully satisfied. ARTICLE 2 DEVELOPER OBLIGATIONS 2.1 Developer agrees to pay the City for the cost of all Work on the basis of identified bid items for the Work, which shall be incorporated by this reference and noted. herein to this Agreement("Reimbursable Costs")estimated to be$640,000� 2.2 Reimbursable Costs shall not include: 2.11 Costs arising out of the willful misconduct, breach of this Agreernen� or gross negligence by City, its employees, contractors,vendors, and consultants; and 2.2.2 Any losses, casts, and expenses incw.Ted by City as a result of City's failure to perform any obligation under its contracts with third parties for the construction of the Pipelines. U 129991€€�€kI1I2©I S I So.I -2- ARTICLE 3 DEVELOPER DEPOSIT AND REIMBURSABLE COSTS'PERMS 3.1 City shall maintain accurate accounting infbrznation and financial records regarding the Work in accordance with generally accepted accounting principles. Within 15 days of execution of the Construction Contract and the Construction Documents, City shall furnish final forms of such agreements to Developer. 3.2 Within 15 days of the Effective Date, Developer shall provide City with a deposit for the Reimbursable Costs in the amount of$640,000 alae"Deposit"). 3.3 Within 5 days of receipt of an invoice from Contractor, City shall provide such invoice, with all backup documentation, to Developer for review. Developer shall have 5 days from receipt of each invoice to contest such invoice,or any aspect thereof. 3.3.1 If Developer contests payment of any invoice or portion thereof, Developer shall cooperate with City to resolve the dispute with the Contractor pursuant to the dispute resolution terms of the Construction Contract if applicable, or alternatively, the dispute procedures of Section 5.6 of this Agreement shall apply. 3.3.2 If Developer fails to contest the invoice within the 5-day period, City shall promptly and fully pay such invoice using the Deposit and Developer thereby waives all rights to challenge such invoice and payment. 3.4 In the event of an approved Change Order that increases the coast of the Work such that the Deposit is not sufficient to satisfy the completion of the Work, the City shall give Developer notice of the approved Change Order, including the associated additional costs. Within 10 days of receipt of notice of the Change Order,Developer shall deposit such additional funds sufficient to complete the Work. 3.5 Upon completion of Work., as defined by California Civil Code Section 9200, if any portion of the Deposit has not been paid to the Contractor by the City pursuant to Section 33 and 3.3.1 (the "Residual Deposit"), such Residual Deposit shall be returned to Developer within the latter of (a.) 60 days; or(b)the termination of any applicable dispute resolution process under this Agreement or the Construction Contract. ARTICLE 4 MUTUAL OBLIGATIONS 4.1 Upon completion, in accordance -with the Construction Documents and the Construction Contract, and upon the Parties' compliance with the provisions of Section 1.4 alcove, the Pipelines shall be the property of the City, and the City shall be responsible for all operation and maintenance thereof 012999t0001%120161so. -3- 4,2 It is agreed that the Parties will be relieved of their respective duties and obligations hereunder if performance of this Agreement is prevented by the elements, natural disaster or acts of God, or if they are ordered or enjoined from performing hereunder by any court or regulatory agency having jurisdiction. Either Party may discontinue performance of its duties and obligations hereunder if the other Party materially breaches any term or condition of this Agreement and fails to remedy said breach within 15 days after demand for such remedy delivered to the Party alleged to have committed the breach (or if the breach is of such a mature that the breach cannot be cured within said 15-day period, if the Party shall not commence the cure of such breach during such 15-day period and proceed diligently with the cure thereof). AR'T'ICLE 5 GENERAL PROVISIONS 5,1 Termination.. This Agreement shall terminate on the date upon which all of the following have occurred: (1)the Work has been fully completed;and (2)there are no unresolved claims under the Construction Contract; and (3) City.has received payment for all Reimbursable Costs from.Developer under this Agreement. 5.1.1 If the Project, which precipitated this Agreement, is canceled or modified so as to eliminate the necessity of the Work, this Agreement shall remain in full farce and effect, City shall remain obligated to complete the Mork, and Developer shall remain obligated to pay City the Reimbursable Costs. 5.2 Limitation of Liability. Notwithstanding any provision to the contrary set forth herein, in no event will any Party be liable to any other Party or any of their respective agents, representatives, or employees for any lost revenue, lost profits, loss of use, delay, loss of technology, rights or services, incidental, punitive, special or consequential darnages, loss of data, or interruption or loss of use of service, even if advised of the possibility of such darnages, whether under theory of contract,tort(including;negligence), strict liability, or otherwise. 5.3 Notices. Any notice required to be given under this Agreement shall be in writing and either served personally or sent prepaid, first class mail. Any such notice shall be addressed to the other Party at the address set forth below. Notice shall be deemed communicated within 48 fours from the time of mailing if mailed as provided in this section, If to City: City of San Juan Capistrano 32400 Pasco Adelanto San Juan Capistrano, CA 92675 Attn: Keith Van Der Maaten,Public Works and Utilities Director If to.Developer: Rivendell Land Company Inc. 31866 Camino Capistrano San Juan Capistrano, CA 92675 William J. Griffith 01294910flQ1112QI6I50.t -4- 5.4 Relationship of the Parties. The Parties agree that City is independent with respect to Developer. Nothing in this Agreement shall be construed to snake the City,on the one hand, and Developer, on the other hand, partners or joint ventures or to create an employment relationship between the City and Developer. Any and all contractual relationships between the City and the Contractor shall be solely between City and Contractor, and Developer shall not have any contractual privity or relationship with Contractor as a result of this Agreement. 5.5 No Waiver. Waiver of a breach or default under this Agreement shall not constitute a continuing waiver of a subsequent breach of the same or any other provision under this Agreement. 5.6 Dz. 'staute Resolution. The Parties agree that all disputes between arising out of or relating to this Agreement shall be discussed and negotiated in good faith by representatives of each Party having decision-making authority for a period of no'less than ten (10) business days after such dispute arises prior to commencing legal action. 5.7 Governing Law. The Parties hereto agree that all of the provisions of this Agreement and any questions concerning its interpretation and enforcement shall be governed by the laws of the Mate of California(without regard to the principles of conflict of laws). 5.8 Modification, This Agreement may be modified or amended only by a written document executed by both Developer and City. 5.9 Severabilit . If any term or portion of this Agreement is held to be invalid, illegal, or otherwise unenforceable by a.court of competent j uurisdiction, the remaining provisions of this Agreement shall continue in lull force and effect. 5.10 No Third PartyBene.ficiaries. This Agreement is entered into solely for the benefit of the City and the Developer and will not confer any rights upon any person not expressly a party to this Agreement. 5.11 No Assignment. No Party may assign (by operation of law or otherwise) this Agreement to any person without the prior written consent of the other Party, which consent shall not be reasonably withheld. Any assignment except as provided in this section shall be void. Subject to the foregoing, this Agreement slhall be binding upon and inure to the benefit of the Parties hereto and their respective successors and permitted assigns. 5,12 Mutual Negotiation. This Agreement and the language contained herein have been arrived at by the mutual negotiation of the Parties. Accordingly, no provision hereof shall be construed against one Darty or in favor of another Patty by reason of draftsmanship. 5.13 Entire Agreement. This Agreement constitutes the complete and exclusive statement of agreement between City and Developer-. All prior written and oral communications, including correspondence, drafts, memoranda, and representations, are superseded in total by this Agreement. 0I299910OOM2016150.1 -5- 5.14 Colinterna.rts. This Agreement may be executed in several counterparts, each of which shall constitute one and the same instrument and shad become binding upon the Parties when at least one copy hereof shall have been signed by both Parties hereto, Counterpart signatures may be transmitted via facsimile, email, or other electronic means and have the same force and effect as if they were original signatures. Lu approving this Agreement, it shall not be necessary to produce or account for more than one such counterpart, S.15 Authori to Enter..A reerrientI City and Developer each waiTant and represent that they have all requisite power and authority to execute, deliver, and perforin the Agreement. Each Party warrants that the individuals who have signed this Agreement have the legal power, right,and authority to make this Agreement and to bind each respective Party. 012999%0001112016150.1 i 1 IN WITNESS WHEREOF, the Patties have caused this Agreement to he .executed on the date first written above. i CITY: e CITY OT SAN JUAN CAPISTRANO,a Municipal Corporation i I Derele Reeve Mayor Attest: Maria Morris City Clerk,City of San Juan Capistrano App Eve :lis To liorrn: Step nic astings J ome or City of San Juan Capistrano ,Brownstein Hyatt Farber Schreck,LLP DEVELOPER: Rivendell Land Company, Inc. By: Name: William I Griffith Title. President W7.. p.l IN Wl" NESS VnT-REO ,the Parties have caused this Agreement to be executed on the date first written above. CMY-. CITY OF SAN JAN CAPISTRANO,a Municipal Corporation By: Derek Reeve Mayor Attest: Maria Monis City Clerk,CitY Of Sari Juan Capistrano Approved As To Form: Stephanie Hastings .homey,City of San Juan Capistraxto Brownstein Hyatt Farber SohreeK l,.Lp DEW I,OPER Rivendell Lan rnpany, n . Na William J.Cri th Title: President Date.- -7- EXHIBIT "511 013012011 AGFA REPORT TO: Dave Adams, Interim City Manager FROM: Grant Taylor, Development Services Director SUBJECT: Consideration of an Ordinance Approving a Development Agreement forthe Plaza Banderas Hotel Project; Stroscher G3, LLC has Requested Approval of a Development Agreement for a Previously Approved Project Consisting of a 124-Room Hotel, Consisting of 76,363 Square Feet ("Hotel") on Approximately 2 Acres; 10,168 Square Feet Two Story Office/Retail Building Consisting of 6,467 Square Feet of Retail on the First Floor ("Retail Component") and 3,702 Square Feet of Private Office on the Second Floor (the "Private Office Space"); 6,085 Square Feet for a Restaurant ("Restaurant") and 190 Parking Spaces on an Existing 3.18 Acre Property Located at 26871 & 26891 Ortega Highway and Generally Located at the Northeast Corner of Ortega Highway and El Camino . Real (Assessor Parcel Numbers 124-170-12, 14, 15 & 16) (Stroscher G3, LLC) RECOMMENDATION: Open the public hearing, receive public testimony, and close the public hearing; and by motion: 1. Introduce the Ordinance approving the Development Agreement(See Attachment 1, Draft Ordinance and Development Agreement for the Plaza Banderas Hotel). APPLICANT/PROPERTY OWNER APPLICANT AGENT Stroscher G3 LLC, Civic Solutions Gretchen Stroscher Thomson Tom Merrell PO Box 129 27362 Calle Arroyo San Juan Capistrano, CA 92693 San Juan Capistrano, CA 92675 A. BACKGROUND On October 5; 2010, the City Council approved the first reading and introduction of an ordinance certifying the Environmental Impact Report (EIR) and approving Rezone (RZ) 10-001 for the proposed Plaza Banderas Hotel project; and, adopted a resolution certifying the Environmental Impact Report (EIR), and approving General Plan Amendment (GPA) 10-001, Architectural Control (AC) 10-002, Grading Plan Modification (GPM) 10-001, Tree Removal Permit (TRP) 10-003, Floodplain Land Use Permit (FP) 10-001, and Tentative Parcel Map (TPM) 10-001. Agenda Report June 30, 2011 Page 2 On October 19, 2010, the City Council approved the second reading and adoption of the ordinance for the Plaza Banderas Hotel project. While all the necessary legislative and discretionary planning applications have been previously approved by the City Council,the applicant's proposed Development Agreement remains for consideration. Also, last July (2010), the City Council adopted an amendment to the City's fee resolution reducing certain "development impact fees" including water, sewer and traffic, for hotel and auto dealership uses by 75% to encourage the development of such uses. The retail, restaurant and office components are not included in the impact fee reduction. On December 14, 2010, the Planning Commission reviewed and provided comments on the proposed DRAFT Development Agreement. The Commission expressed concerns with the entire draft Development Agreement and felt that the proposed language was at odds with the discretionary approvals and that it should be denied by the City Council. On January 11, 2011, the Planning Commission reviewed and provided additional comments on the proposed DRAFT Development Agreement. On January 18, 2011, the City Council conducted a public hearing to consider the DRAFT Development Agreement, The Council provided comments and requested that staff continue to work with the City attorney and the applicant on the DRAFT agreement (See Attachment 2, :January 18, 2011 CC Meeting Minutes). The item was continued to the February 15, 2011 meeting. On February 15, 2011, the City Council continued consideration to the March 1, 2011 meeting in order for City staff and the City Attorney to continue negotiations with the applicant on the proposed DRAFT agreement. On March 1, 2011, the City Council continued consideration to the March 15, 2011 meeting in order for City staff and the City Attorney to continue negotiations with the applicant on the proposed DRAFT agreement. Can June 21, 2011, the City Council continued consideration to the June 30, 2011 meeting in order for City staff and the City Attorney to continue negotiations with the applicant on the proposed DRAFT agreement. B_ Development Agreement The applicant has prepared and submitted a revised draft Development Agreement that would establish specific assurances and responsibilities on the part of both the applicant and the City. On September 7, 2010, The City Council formed an Ad-Hoc Subcommittee to focus on the specific provisions pertaining to Fiscal & Economic Impacts on the City as proposed in the draft Development Agreement. The Ad-Hoc Subcommittee consisted of Councilmen Hribar and Nielsen. The Subcommittee along with staff and the City Attorney have met with the applicant and their attorney on several occasions to negotiate the proposed draft agreement. Agenda Report June 30, 2011 Page 3 Following the City Council meeting of January 18, 2011, the ad hoc committee now consisting of council members Freese and Taylor, City staff and the City Attorney continued negotiations with the applicant's attorney based on comments from the Commission and Council. Staff presents the following main issues for City Council consideration: Section 2.3, Term. The Agreement is proposed to commence on the effective date of the ordinance approving it and will terminate at the end of the day immediately preceding the fifth (5th) anniversary of that effective date of the ordinance. It is subject to specific termination previsions set forth in the agreement, However, so long as the developer is not in Default of the agreement and the agreement has. not been otherwise terminated, the developer may request the City to extend the Term for up to three (3)one-year extensions. The City retains the discretion as to whether to approve or deny any such extension request(s) made by the developer. The developer's request(s)to extend the term shall be submitted not more than one hundred eighty (180) days and no less than sixty (60) days before the end of the term. Section 2.51 Transfers and Assignments. This section provides that the developer shall not assign all or any part of this Agreement without the prior written approval of the City, which approval will not be unreasonably withheld. Section 3.1 Vesting., This section provides that the developer has and shall have the right to develop the Project on the Property consistent with the Development Plan and the Development Plan Approval(s), including, without limitation, the Future Development Approvals after the same have been issued or approved by CITY and become effective ("vested right"). Section 3,7.1 Applicability of Temporary Reductions in Development Impact Fees. On July 20, 2010, the City Council adopted Resolution No. 10-7-20-01, mandating a seventy-five percent (75%) reduction in sewer, traffic, and water Development Impact Fees for hotels and vehicle dealerships from the rate otherwise applicable for commercial/industrial uses (collectively, the "Decreased Impact Fees"). an May 17, 2011, the City Council adopted Resolution 11-05-17-01 extending the expiration of the reduced fees for six months to January 31, 2012. Notwithstanding the expiration of the reduced fees, the Project shall be subject to the Decreased Impact Fees, as long as the first building permit for construction of the hotel building is issued on or before the second (2nd) anniversary of the Effective Date. If the first building permit for construction of the hotel building is issued after the second (2"d) anniversary of the Effective Date and before the third (3{ ) anniversary of the Effective Date, then the Project shall qualify for a fifty percent (5O/p) reduction in sewer, traffic and water Development Impact Fees. If the first building permit for construction of the hotel building is issued after the third (P) anniversary of the Effective Date and before the fourth (4"') anniversary of the Effective Date, thea the Project shall qualify for a twenty- five percent (25%) reduction in sewer, traffic and water Development Impact Fees. No reduction will be available after the fourth (41h) anniversary of the Effective Date. Pursuant to Resolutions Nos. 10-7-2001 and 11-05-17-01, the Decreased Impact Fees shall apply Agenda Report ,June 30, 2011 Page 4 to the hotel portion of the Project. Furthermore, the parties agree that if the expiration date of Resolutions 10-7-20-D1 and 11-05-17-01 is extended car a similar fee reduction program is established which provides lower fees than those stipulated to in the Agreement, the lower fee program shall apply. Section 4.1.3 Water System Upgrade, This section provides that the Project Mitigation Measure MM 4.11.201 b and Project Condition of Approval No. 48 require Developer to construct a loop system to run from a POC in the 350C system at the intersection of El Horno and the 1-5 Freeway("El Horno Section") to a connection to the 350C system at the intersection of Ortega Highway and Avenida Los Cerritos ("Ortega Section"), Compliance of these conditions may be resolved as follows: a. Daring the future reconstruction of the Ortega Bridge over the 1-5, City has requested Caltrans to provide for the water interconnect required to create the Ortega Section loop. Should the El Horno Section provide sufficient fire flow as determined by the Fire ]Marshal, Developer shall not be required to construct the Ortega Section. Prior to the time the Ortega Section is to be constructed, Developer and City will consider Developer's fair share for the cost of construction and/or the Parties will enter into a reimbursement agreement to specify Developer's fair share and reimbursement for the Ortega Section construction. City will waive this requirement in the event that grant funding becomes available. to fund the construction of the Ortega Section. b, Developer shall construct the EI Horno Section to provide sufficient fire flow to the Property as determined by the Fire Marshal. Developer and City may reconsider Developer's fair share for the cost of construction should new development be proposed, which would benefit from the El Horno Section construction. The Parties may further enter into a reimbursement agreement to specify Developer's fair share and reimbursement should new development be proposed, which would benefit from the EI Horno Section construction. City will waive this requirement in the event that grant funding becomes available to fund the construction of the Ortega Section. Section 4.2.1 Undergrounding of Power Lines. This section provides that subject to exercising its legislative discretion, City shall consider the creation of a utility district ("Utility District") to fund the Undergrounding of Power Lines. Regardless of when the Utility District is formed, the Utility District shall be responsible for funding, designing, and constructing the Undergrounding of Power Lines. Developer shall support creation of a Utility District, and agrees to have the Property subject to assessment, if such a district is formed by City. In such a situation, Developer shall be deemed to have satisfied Project Condition of Approval No. 118. If formed, the Utility District shall consist of additional benefitted properties, in addition to the Property. if City has not created the Utility District, and not imposed the assessment on relevant properties in the area, including the Property,. before issuance of the first (1') certificate of occupancy for the Project, City agrees that Developer shall have no obligation to Underground the Power Lines, and Developer shall not be required to comply with Project Condition of Approval No. 118. If City forms and funds the Utility District after the issuance of the first (1ST) certificate of occupancy, Agenda Report June 30, 2011 Pa e 5 Developer shall support creation of the Utility District and agrees to have the Property subject to assessment, if such district is formed by the City. If City or the Utility District elects to Underground the Power Lines, Developer agrees to provide City or Utility District with a temporary construction easement, with the terms of such easement to be mutually agreed upon by the Parties, to allow the undergrounding of the lines to occur. For clarification of the foregoing provisions pertaining to the Undergrounding District, the Council might recall that when the Council approved the project, it revised Project Condition 118 to be addressed in the development agreement. Section 4.2.2 Reconstruction of Project Entma , This section provides that the City agree to assist the developer in its attempts to have Caltrans reconstruct the project entryway, dere to the future relocation and expansion of Ortega Highway, The City's assistance to the developer shall not include any financial assistance unless the City, in its sole discretion, determines to provide financial assistance. Section 4.2.3 Reversion of Portions of the�Ortescta Highway Rights-of-way. Subject to exercising of its legislative discretion,the City agrees to undertake all reasonable good faith efforts to re-convey to the developer the excess Ortega rights-of-way adjoining the property. FINANCIAL CONSIDERATIONS The developer deposit submitted by the applicant to recover staff costs of processing the General Plan Amendment and associated entitlements is currently overdrawn by $20,390, respectively. Further charges for staff time will be necessary to complete application processing with the Design Review Committee and Planning Commission, Staff requests paying deficits and providing an additional $5,000 developer deposit. Notices to collect overdrawn amount have been mailed to the applicant. Staff has generated a summary table of the estimated "costs" of the Draft Development agreement (See Attachment 4, Estimate of Proposed Cast Distribution), PUBLIC NOTIFICATION Pursuant to Title 9, Land Use Code, Section 9-2.302(f), Notification Procedures, a public hearing notice has been mailed to all property owners (as listed on the Orange County Real Property Tax Assessment rolls)within five-hundred (500)feet of the project, has been published in the Capistrano Valley News at least ten (10)days prior to the hearing, and has been posted at three public locations. Copies of this agenda itern have been provided to the applicant and their representative through posting of the agenda packet on the City's website (See Attachment 3, Public Hearing Notice). Agenda Report June 30, 2011 Page 6 REGC)MMENDATION:. Open the public hearing, receive public testimony, and close the public hearing; and by motion: 1. Introduce the Ordinance approving the Development Agreement(yes Attachment 1, Draft Ordinance and Development Agreement for the Plaza Banderas Hotel). Respectfully submitted, Prepared by: 66 Grant Taylor David Contreras Development Services Director Senior Planner Attachments: 1. Draft Ordinance and Development Agreement for the Plaza Banderas Hotel. 2. January: 18, 2011 CC Meeting Minutes. 3. Public Nearing Notice, 4. Estimate of Proposed Cost Distribution. EXHIBIT "C' 3.6.3 Processing Obligations, The ("ITY hereby agrees that it will accept from. the Developer for processing and review all applications far Future Development. Approvals, in accordance with the Existing hand Use: Regulations. To the fullest extent allowed by laver, the CITY shall process all applications filed in connection with the Development of the Project as expeditiously as possible and shall complete at the earliest possible tirne all steps necessary for the implementation of this Development Agreement and the Development of the Project, including, but not limited to, the following: (a) The processing of applications for and the issuance of all Project Approvals requiring the exercise of judgment and deliberation by the CITY, including without limitation, the Subsequent Project Approvals; (b) The retention, upon the Developer's request, of outside plan check consultants, to be selected by CITY, in consultation with STROSCHER, to assist in processing of applications and plans (including infrastructure and storm drain plans), at the Developer's cost; (c) The holding of any required public hearings; and (d) CITY performance of all required inspections called for by Developer within fifteen(15)business days following the request for inspection by Developer. 3.5.4 C;hanyes in the Project. In accordance with the City Municipal Code, CITY acknowledges that the. Developer may in the future desire to change or modify the Project based on precise planning, cNinges in market demand for aggregate products, changes in development occurring in the vicinity of the Property, or other factors. All. -such Pro lect revisions shall be subject to the provisions of Subsections 3.5.1, 3.5.2, 3.6,1, _ ,6.2 and 3.6.3 of this Agreement. In such event, CITY shall_ cooperate with Developer to expeditiously review and take,final action on such requested changes in accordance with to Existing Land Llse Regulations, No change to the Project which is consistent with the Existing Land Use Regulations shall require an amendment to this Agreement and, in the event any change to the Project proposed by Developer is approved by the CITY, the references in this Agreement to the Project of applicable portion thereof shall be deemed to refer to the Project as so changed. 3.7 Develo-oment Impact Feed. Notwithstanding anything to the contrary in this Agreement, and subject to the provisions of Section 3.7.1, the only Development Impact Fees that may be applied to the project, Developer or Property in connection with the Project shall be those existing on the Entry Date. Development Impact Fees shall be paid at the fee rate in effect at the trr:a; when payment for such +wesis due arid payable, firthe portion ofthe Property 1c., which such tees apply. 3.7.1 Applicability of Temporary,Reductions in Developlj�ent ItMact Feil, On L17-20-01, uly 20, 2010, the City Council adopted Resolution No. 10-7-20-01, mandating a seventy-five percent S°/a) reduction in sewer, traffic, and water Development Impact Fees for hotels and vehicle ealerships from the rate otherwise applicable, for commercial/industrial uses (collectively, the Decreased Impact Fees"). Notwithstanding the; July 31, 2011 expiration date oi'R.esolution Nc-..--f*t,, , the Project shall be subject to the Decreased Impact bees, as long as the first: building permit for construction of the hotel building is issued on or before: the second (2`1) anniversary of the Effective Date. If the first building permit for construction of the hotel building is issued after the -15- second Q"�) anniversary of the Effective Date and before the third (3"') anniversary of the Effective Date, thea the Project shall qualify for a fifty percent (50%) reduction in sewer, traffic and water Development Impact bees. If the first building permit for construction of the hotel building is issued alter the third (P) anniversary of the Effective Date and before the fourth (4"') anniversary of the Y ffective Date, then. the Project shall qualify for a fifty percent (25%) reduction in sewer, traffic and water Development Impact Fees. No reduction will be available after the fourth (4`1') anniversary of the Effective Date. Pursuant to Resolution No. 10-7-20-0 1, the Decreased Impact Fees shall apply to the hotel portion of the Project. Furthermore, the parties agree that if the expiration date of Resolution 10-7-20-01. is extended or a similar fee .reduction program is established which provides lower fees than those stipulated to herein, the lower fee program shall apply. 3.7.2 Developer's Right to Contest Increases in Development Impact Fees. Nothing in this Agreement shall prevent Developer from contesting, in any appropriate forum, the imposition or the ain.ount of any new Processing Fees or any increase in the Development Impact Fees. Such right of protest shall not extend to the current amount of any Development Impact Fees or Processing; Fees in effect as of the. Entry Date of this Agreement, and the Developer hereby agrees to pay the same pursuant to the terms of this Agreement and the CITY`s normal fee payment schedule. Notwithstanding any pending contest of such fees, CI'T'Y shall proceed with issuance of all required Project Approvals and shall not withhold or delay issuance of those Project Approvals lased upon any pending protest or appeal with respect to such fee. 3.8 Amendment of Development Agreement, y 3.8.1 Initiation ofAmendx Amendment. Any Party may propose an amendment to this Agreement, and all Parties agree that it may he beneficial to enter into additional written agreements or modifications ofthi.s .Agreement in connection with the Devel«pi-rent of the. separate. Components ofthe Development flan. Notwithstanding; any provision of this Agreement to the contrary, no amendment to the Development. Ilan or to any conditions of approval contained therein shall require an amendment of this Agreement. 3.8.2 Procedure. Except as set forth in Section 3.8.4 below, the procedure for proposing and adopting an amendment to this Agreement shall be the sarne as the procedure required for entering into this Agreement in the first instance. 3.8.3 Consent, Except as expressly provided in this Agrcement, any amendment to this Agreement shim require the ` iitten --onsent t of all affected Parties. An ameenc'lment to this Agreement shall not be deeaned to affect a portion of the Property if it does not alter, jeopardize, or impair-the, rights and does not increase the obligations of S°IROSCHER 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. MA Operating Memoranda, The Parties acicnowkAge that refinements and f irther development of the Development Plan may demonstrate that changes are; appropriate with respect to the details and perfor- ance of the Parties under this Agreement. The Parties desire to retain a certain degree of flexibility with respect to the details of the Development flan and with respect to those items covered in general terms under this Agreement. If and when the parties mutually find that -16- EXHIBIT 447 governmental reduirearnerrts, including Sectiou 66000 et seq., of` the California Government Code, including; impacts fees, linkage fees, exactions, assessments or fair share charges or other similar impact fees or charges imposed on or in connection with new development by the CITY. Development Impact Fees do not mean or include Processing Pees. The Development Impact Fees are the only Development Impact Fees that the City may impose or Ievy fln the Project. 1,11 Development Plain. "Development Plan" means the plan for Developing the Project on the Property in accordance with this Agreement, the Development Plan Approval(s), and the Future Approvals, As of the Effective Date, the Development Plan consists of the Master Plan, provisions of CITY's General Plan (as amended through the General Plan Amendment referred to in Recital E) applicable to the Property, the narrative description of the Project set forth in Exhibit "N' to this Agreement, the Development Plan Approvals set forth in Exhibit "E" to this Agreement, and the express provisions set forth in this Agreement that define or describe the Project. The Future Development Approvals autorn.atically shall become a part of the Development Plaza and included within the scope of STROSCHER's vested rights provided for in. this.Agreement without the need for any amendment of this Agreement when the same are issued or approved by CITY and become effective. Each of the documents memorializing the Development Pian is (or- will be) maintained in the official records of CITY and shall be utilized whenever required to interpret or apply this Agreement. I.I2 Development Plan Approval(s). "Development Plan Approval(s)" means the approvals of the City Council described in Exhibit "E" hereto insofar as the same relate to the Property and the Development Plan, including those amendments to this Agreement made in accordance with Section 3,8 hereof, thoseamendments to the Development Plan Approval(s) made in accordance with Section 3.9 hereof, and those Future DevelopmentApprovalsmade in accordance with Sections 3.6 hereof: 1.13 Dr veto'rnerYt 'Transferee. "Development Transferee" means a person or entity that expressly assu.nries obligations under this Agreement pursuant to Section 2.5 hereof: 1.1.4 Discretionary Actions) or Discretionary At)prova.l s . "Discretionary Action(s)" or "Discretionary Approval(s)" means an action which requires the exercise of judgment, deliberation or discretion on the. part of the CITY including' any board, agency, corlirnission or department and any d rofficer of employee thereof, in the process of approving or disapproving a particular activity, as distinguished from an activity which is defined herein as a. Ministerial Permit or Ministerial Approval. '4 i b 7' t Ord i „ f i..l � t�ffectiv�, nate. "f�f'fective n�i�t.i;°' rr�earns tree cnzrti�; tine <�kit i-urriring ��r�ssiiarrce rrEcoznses effective. 1.16 Existing Land Use Re solations. "Existing Land Use Regulations" means all ordinances, laws, resolutions, codes, rules, regulations, policies, requirements, guidelines or other action of CITY, including but not limited to the CITY's General Plan. Municipal Code and Zoning Code and including all Development Impact Fees, which affect, govern or apply to the Development and use: of the Property, including, without limitation, the penrnitted use of land, the: density or intensity of tn.5e, subdivision requirements, the maximum height and size of proposed buildings, the provisions for rewrvation or dedications of land for public purposes, and the. design, improvement and construction standards and specifications applicable to the Development of the Property, subject to -6- EXHIBIT 448" Y3.4 Vested Ri Iht. lay entering int© this Agreement and relying thereupon, STROSCHER 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 tray be amended and supplemented from time to time as expressly set forth herein) and the Existing land Use Regulations. By entering into this Agreement and relying; thereupon, CITY is securing certain public benefits which enhance the public health, safety, and welfare. CITY therefore agrees to the following: 3.4.1 No Conflicting Enactments. .Except as provided in Section 3.2 of this Agreement, after the Effective Date neither the .City Council nor any other agency of CITY shall enact a rale, regulation, ordinance, or other measure (collectively, "law") applicable to the Property which is inconsistent or in conflict with this Agreement, Not by way of limitation of the foregoing, any law, whether by specific reference to this Agreement or otherwise, shall be considered to be inconsistent and in conflict with.this Agreement if it has any of the following effects. (i) It limits or reduces the occupancy, density or intensity of the Project as providedfor in the Development flan or the Development flan Approval(s); or (ii) It imposes Development Exactions on the Property other than those in effect on the Effective Date or as otherwise expressly permitted by Section 3.2.1 of this Agreement. 3.4.2 Consistent Enactments. By way of enumeration and not limitation, the following types of laws shall be considered consistent and not in conflict with this Agreement: (i) Laws that provide for the relocation of structures within the Property pursuant to an application from, S` ROSCHER; and (ii) Any law that is expressly authorized by dais Agreement. 3.4.3 1n.1tiatiye Measures. In accordance with state law, in addition to and not in limitation of the foregoing;, it is the intent of STROSCHER and CITY that no moratorium or other limitation (whether relating;to the Development of all or any part of the Property and whether enacted by initiative or otherwise) affecting site devc1opra ent permits, precise: plans, site development plans, building permits, occupancy certificates, or other entitlements to use approved, issued, or granted within. CITY, or portions of CITY, shall apply to the Property to the extent such rooratoz'iurn or other litnitat.ion would restrict STROSCHER.'s right to Develop the various elements of the Project on. the PrO,E'tv .n such order and at such rate as S T'R(;iSCHEp deems appropriate. 3.5 Subsequent CE Review. 3.5.1 Th.e EIR. The CITY certifies that the EIR prepared on behalf of the CITY in cor€junetion with the Project is a complete and accurate document which satisfies all the requirements of the California Environmental Quality Act ("CI QA," California Public Resources Code Section 21000 et sect.) and the State CEQA Guidelines (1.4 California Code of Regulations 15000 et seq.) with respect to the Project and this Agreement. CITY agrees that no mi-tigation measures arising out of environmental concerns that are not included in the MMRP for the .EIR or this Agreement shall be imposed on the Project except as otherwise provided in this Section. In exercising its legislative; discretion to enter into this Agreemezat and to commit CITY to the completion of the Project, CITY -13 has further reviewed and considered from a variety of perspectives, and has analyzed pursuant to a variety of assumptions, the projected future regional and cumulative environmental demands that will compete with the Project for available capacities and cumulatively add to potential adverse impacts. 3.5.2 Subsequent CEQA Review. In accordance with state law, the Parties to this Agreement intend that the EIR fully and adequately addresses all potential adverse environmental impacts from full development of the Project. After consideration of the potential adverse environmental impacts associated with the Project, the CITY has imposed mitigation measures in accordance with CEQA, as specified in the MMRP to the fullest extent the CITY considers feasible and necessary. The CITY has determined that the Development of the Project in the manner contemplated by the Project Approvals and this Agreement will provide the mitigation measures needed to alleviate short-run and long-run potential adverse environmental impacts created by the Project, and that the public benefits to be derived from. the Development of the Project override an. otential adverse environmental impacts which may arise from the Development of the Project, Therefore, the CITY agrees that no subsequent or supplemental EIR shall be required by the CITY for any Subsequent Discretionary Project Approvals implementing the Development of the Project unless required pursuant to California Public Resources Code Section 21166 and Title 14 California Code of ReguI.ations, Section 15162. For purposes of this analysis, the term "new information" does not mean discovery that probabilities of adverse (or beneficial) results considered in the approval of this Agreement, the Existing Project Approvals or the EIR may prove incorrect, or that such probabilities are or are not becoming, or have or have not become, realities; but instead, "neva information" requires that the actual quantitative or qualitative extent of the underlying issues were not considered and could not have been considered in the environmental analysis associated with the approval ofthe Existing Project Approvals, this Agreement and the EIR. 3.6 Subsequent Project Approvals. 3.6.1 Basis for Derr in or Conditional Grantin Sul eclucirt P roiect A 3 rovals, The CITY is bound to permit the uses on the Property that are permitted by the Existing Land tase Rcgulations and the Development Plan Approvals. The CITY agrees to grant and implement. all Ministerial. Approvals, as long as the. Ministerial Approvals comply with the Existing Land Use Regulations; the Agreement, and are consistent with the Development Plan Approvals, including but not limited to, building pians and permits, specifications, reclamation plans, landscape plans, grading pians and perinits, and use permits reasonably necessary or desirable to accomplish the goals, objectives, policies and plans described in this Agreement. This Agreement shall: not prevent the CITY fronidenying or conditionally approving any Discretionary Approval ori the basis of the Existing Land Use Regulations, subject, however, to the provisions of Sections 3.1 and 3.4 of this Agreement. 3,6,2 Duty to Grant and Implement. Subject to the requirements of state law and the CITY Municipal Code, the CITY's obligation to grant and implement any Ministerial or Discretionary Approvals shall not infringe upon the CITY's right to with.hoid such Future Development Approvals for failure of the applicable Application to conform to the Existing Land Use Regulations_ If the CITY rejects an application for a Mini.st.erial or Discretionary Approval, it shall provide, in good faith, a specific list of reasons why the application was rejected, along with a description of reasonable measures ("Measures to Correct") to correct each basis for rejection. If Developer resubmits its application i emporati,ng all the Measures to Correct, the CITY shall not unreasonably deny Developer's application. -14- EXHIBIT �Vi Office of Governor Edmund G. Brown Jr. - Newsroom Page t of I EXECUTNE ORDER I IMEA�;�)n RFJafivaiy 1 7�2014 1 pioc3a;inr-d a tcll gli exist throucul the Stale Of 'll - caii- mla'�'Joc �7 di, ic, . :.lie -)jGht cnrid4ions:anc� M-IFPFW;oft Apiii25 2014, a ContinuOd StaEe of Emergency to sxirft throughout tho Stale cY CaIiiornla dkk,,io Me ongoing dmugIA,and WHEREAS Itis rainfall trio State hn�recently experienced,while slignificant,is insufficieni end the historic drought that t:antitives to irvPE�cl,he State,and it is unknown how much rain w;fl fall over the next few monlhs�and VVHEREA9 additional expedited actions are needed to reduce the harmful impacts from water shortaget,and other impacts of the drought;and WHEREAS the magnitl(le of the scvoie drought condiVons continues to present threats beyond the contrcl of tl�(,services p,,tsonie;,eq.wpn,eril and faoidics,of any sing local government and require the com binfT� Of 8 MLVo�si 8"1 region 01 regions ib cotinnai WHEPIER"C'under the provi"'i"'ris of se aloe 8`,7j or.."the C2-Iffornia(,overnrnent Coi 1 find that strict COrnpliZIFIM With VaYicLIS SWIUNeS arri regula',.ions specified in this oldpr would prevent.thinner,Or delay the nth qati011 of the affects Of Vit'ONIUCI'li. NOW,THEREFORE 1,EDMUND(-',.BROWN JR.,Governor of the State of California,in accordance With,the authority vested is me by the Constitution and statutes of the State of CaNfornia,in particular Government GWk-seciicns$5C7 orad 8571 of the California Government Code.do iqereby issue this Executive Order,eNcflve F I'S HEREBY ORDERED THAT: The waiver of the CaWornia Environ ljentr}T Quality Act and Water Code section 13247 in paragraph 0 of the January 17,2014 Proclaii and POragr8ph 19 of the April 25,2014 proclamation,is Lx#eri through May 31.20 4'6.1 hs waver siiaii also apply to the adoption of water reclamation requirements by the State'Witer ficiaird ihW s,,^rvcL the purpose of paragraph It)of the April 25,2014 Proclamation.DrOLI!�4it relief aciiLnS to those Paragiaphs trial are started prior to May 31,2016,but not rornpleted.shall rol be,SuLlectto Division 13(cornmi with 5rlcflon 210GO)of the Public Resource,,;Code or Watel Cale sr clioil 13247 for the firne required to complete lhenj T- , O)der is not]nzendc'd to "AI'd df'eiii nol,cioatcr any roll;'cT or piroce�-iui:,.cniorce-"rle at iaw nr iii oquiiy,again-31.tile Of caiitomi .Im, ciepavirr-'ems cfllcer�, omjpioyos,Ora,y other per*oit I UR'.'1-:R IjIll's5 sQorl as!ieresi ii this O;der he lwj�;vl Iiie 0'fiCe,G;the GLecfelniy �f Stak�and shat, ad D ubr .v and rCAice r3e gwen IG thin Oiler I ha 'e -nd -ad thr,Gmai.seal ,lie Slat ;�rd p. of (,'adomia lo the atllixed rots 22nd day of Decembr 1:31 U 1-iP G P.R 01 sAIN J R 0�Ce!1,01 ma A TE S" ---------- Socre'-,y Of Slat(, hitp.//gov.ca.gov/news.php?id-188 5 6/2/201.5 EXHIBIT " 1V FYI Mgrs of lzgl(fnmb EXECUTIVE ORDER B-2.9-15 1, WHEREAS on January 17, 2.014, 1 proclaimed a State of Emergency to exist J F,,�� reservoirs, r�hout tttE state of California due to severe draught conditions.; and WHEREAS on April 25, 2014, 1 proclaimed a Continued State of Emergency ist throughout the State of California due to the ongoing drought; and WHEREAS California`s water supplies.c©ntinue to be severely depletedite.a limited amount.of rain and snowfall this winter,with record low snow.pack e Sierra levada mountai;ts, decreased irwater levels in most of California's reduced.flows in the state's rivers and shrinking supplies in underground 19 water basins; and � WHEREAS the severe drought conditions continue to present urgent i3. challenges including drinking wafer shortages in communities across the state, diminished water for agricultural production,.degraded habitat for many fish and wildlife species,increased .wildfire risk, and the threat of saltwater contamination to 3 fresh water supplies in the Sacramento-San Joanin Bray Delta;and � WHEREAS a distinct possibility exists that.the current drought will stretch into 0 a'fifth straight year in 2016 and beyond;and i WHEREAS new expedited actions are needed to reduce the harmful impacts from water shortages and other impacts of the drought; and I' WHEREAS the magnitude of the severe drought conditions continues to i present threats beyond the control of the services, personnei, equipment, and facilities of any single local government and rc:quirc the combined farces of a mutual 1 aid region or regions to combat; and I WHEREAS under tate provisions of section 8558(b) of the Government Code, I find that conditions of extreme peril to the safety of persons and property continue i to exist in California dire to water shortage and drought conditions with which local authcrity is unable to cope; and I 1 WHEREAS ender the provisions of section 8579 of the California 1, i Government Code, I find that strict compliance with various statutes and regulations i1 specified ire this,order would prevent, hinder, or delay t};e mitigation of the effects of y the rt,ouht. l it �j NOW,THEREFORE,1, EDMUND G. BROWN JR., GOVeFDOF of the State of E California, in accordance with the authority vested in me by the Constitution and l statutes of the State of California, in particular Government Code sections 8567 and 8571 of the California Government Code, do hereby issue this Executive Order, 1 effective immediately. i l IT IS HEREBY ORDERED THAT: li 1. The orders and prov.isinns contained iii my January 17, 2014 Proclamati.nn, { my April 25, 2014.Proclamation, and Executive Orders E3-26-14 and 8-28=1 ii remain in full force and effect,except.as modified herein. Ii l l SAVEMATER iE i The State Water Resources Control Board (Water Board) shall impose �jr.2, amount restrictia.ris to achieve a statewide 2.`°!o reduction in potable urban water ' 'susage through February 2.8, 2016. These restrictions will require water l i; suppliers to California'sifornia's cities and towns to reduce usage as compared to th used in 2013 These restrictions should consider the relative per i Gapsta water usage of each water suppliers' service area,.and require that. l! those areas with high per capitause achieve proportionally greater reduction i than those with low use. The California Public Utilities Commission is requested to take similar Faction with respect to investor-owned utilities providing water services: i'E li 3, The Department of Water Resources (the Department)shall lead a statewide ;I initiative, in partnership with local agencies, to collectively replace 5fl million square feet of lawns and ornamental turf with drought tolerant landscapes The Departroent shall provide funding.to allow for lawn replacement programs in underserved communities which will complement local programs already i underway across the state. d: i 4. The California Energy Comrnissic.n.jointly with the Department and the Water rE Board, shall implement a time-limited statewide appliance rebate p oc:ram to provide monetary incentives for the replacement of inefficient household l devices. 5. The!Nater Board shall impose restrictions to require that commercial, ii industrial, and institutional properties, such as campuses, golf courses, and cemeteries, immediately implement water efficiency measures to reduce I �i potable water usage in an amount consistent with the reduction targets l j mandated by Urective 2 of this Executive Order. I' B. The Water Board shall prohibit irrigation with potable water of omarnental turt ,l an ptablic street medians. E l� 7. The Water Board shall prohibit irrigation with potable water outside of newly l constructed homes and buildings that is not delivered. by drip or rnicr©spray l t sysems. �l f� { l �l EE ii i �i 8. The Water ward shall direct urban water suppliers to dove op.rate structures i and other pricing mechanisms,.'including but not limited to Surcharges, fees, ' and penalties,to maximize water conservation consistent with statewide 1 3 water restrictions. 'The Water Board is directed to adopt emergency regulations, as it deems necessary, pursuant to Water Code:section 1058.5 to. { inmpiement.this directive. The dilater Board is further directed to work With 1 state agencies and water suppliers to identify mechanisms that would' i encourageand facilitate the adoption of rate structures and other pricing mechanisms that promote water conservation. Thee California Public Utilities i. Commission is requested.to take,similar action with respect to.investor-owned li- utilitiesproviding water services, INCREASE ENFORCEMENT AGAINST WATER WASTE i 9, The Water Board.shall require urban water suppliers to provide monthly t. E informatiomon water usage, conservation,and enforcement on a permanent sl basis. ?; 8 11 � 10_ The WaterBoard-shall require frequent:reporting;.of water diversion and use. by water right holders, conduct inspections to determine whether illegal' j diversions,or wasteful and unreasonable use of water are occurring, and bring enforcement actions against illegal diverters and those engaging in the wasteful and unreasonable use of water. Pursuant to Government Code ii sections 8570 and 8627,the Water Board is granted authority to inspect ' property or diversion facilities to ascertain compliance with water rights laws R i and regulations where there is cause to believe such laws and regulations j have been violated. When access is not granted by a property owner, the Water Board may obtain an inspection warrant pursuafit to the procedures:set forth In Title 13 (commencing with section 1822.50)of Part 3 of the Code of Civil Pmeedure for the purposes of conducting an inspection pursuant to this i directive. Ij 1 i. The Department shall update the State Model Nater Efficient Landscape H ;. Ordinance through expedited regulation. This :updated Ordinance shall fl increase water efficiency standards for new and existing landscapes through f ` more off icient irrigation systems,greywater usage, onsite storm water � lF 3 capture, and by limiting the portion of landscapes that can be covered in Curt. It will aiso require reporting on the implementation and enforcement of local ordinances, with required reports due by December 31, 2015, The Department shall provide information on local compliance to the Mater Board, Which shaft consider adopting regulations or taming appropriate enforcement actions to promote compfiance, The Department shall provide technical j assistance and give priority in grant funding to public agencies for actions it necessary to comply with local ordinances. 3 E 1� 12. Agriculturai water suppliers that supply water to more yore than 25,000 acres shall include in their required 2015 Agricultural Water Management Flans a �1 detailed drought management pian that describes.the actions and measures the supplier will take to manage water demand during drought. The Department shall require those plans to include quantification of water supplies and demands for 2013, 2014, and 2015 to the extent data is available. The Department will provide technical assistance to water suppliers in preparing the plans. l� riculturai water suppliers_.______ 13. Ag that supply water to 10,000 to.25,00.0 acres of ! irrigated lands shall develop Agricultural Water Management Plans and �. submit the plans to the Department by July 1, 2016, These plans spoil include:a retailed drought management,plan and quantification of water { supplies and demands in 2013, 2014, and 2015, to the;extentthat data is. available. The Department shall give priority in grant funding to agr c.uitural water suppliers that supply water to 10,000 to 25,000 acres of land for �? development and implementation of Agricultural Water Management Plans. E �i 14. The Department shall report to Water Board on the status of the Agricu[fural Water Management Plan'submittals within one month of receipt of those reports. i 1:5. Local water`agencies in high and mediUrn priority groundwater'basins shall I immediately implementatl requirements of the California Statewide ( II Groundwater Elevation Monitoring Program pursuant to Water Code section 10933. The Department shall refer noncompliant local.water agencies within I high and medium priority groundwater basins to the Water Board by {I December 31, 2015, which shall consider adopting regulations or taking ' j appropriate enforcement to promote compliance. 15.. The California Energy G.ommisslon:shall adopt emergency regulations � establishing.standards that improve the efficiency of water appliances, E� including toilets, urinals, and faucets available for sale and in stal{alien in new i. tl and existing buildings. INVr=sT IN NEW TECHNOLOGIES 1`7, The California Energy Cor misw'ion,jointly'with the Dit tpartrnent and the Water =j Board, shall'implerr ent a Water Energy i ectinology(vvE progrant to deploy 'E innovative water management technoicgies for Businesses, residents, i industries, and agriculture. This program, will achieve water and energy Il savings and greenhouse gas reductions by accelerating use of cutting-edge technologies such as renewable energy-powered desalination, integrated on- site reuse systems, water-use monitoring software, irrigation system timing and precision technology, and on-farm precision technology. 1 STREAMLINE GOVERNMENT RESPONSE i 18. The Office of Emergency Services and the Department of Housing and J 4 Community Development shaiI work jointly with counties to provide temporary assistance for persons moving from housing units due to a lack of potable j water who are served by a private well or water utility with less than 15 11 connections, and where all reasonable attempts to find a potable water source have been exhausted. 19. State permitting agencies shall prioritize review and approval of water ll' infrastructure projects and programs that increase local water supplies, including water recycling facilities, reservoir improvement projects, surface !{ t water treatment plants, desalination plants, stormwater capture, and greywater systems. Agencies shall report to the Governor's Office on applications that have been pending for longer than 90 days. �I I' I E 20. The Department shall take actions required to plan and, if necessary, j implement Emergency Drought Salinity Barriers in coordination and consultation with the Water Board and the Department of Fishand Wildlife at � locations within the Sacramento- Sara Joaquin delta estuary, These barriers'. will be designed to conserve water for use later in.the year to meet.state and i li federal Endangered Species Act requirements, preserye,to the extent possible water quality in the Delta, and retain water suppiyfor essential human health and safety uses in 2015 and in the future: fI { { 21. The Water Board and the Department of Fish and Wildlife shall immediately I consider:any necessary regulatory approvals for the purpose of installation of the Emergency Drought Salinity Barriers. , I 22. The Department shall immediately consider voluntary crop idling water j i' transfer and water exchange proposals of one year lir less in duration that are initiated by local public agencies and approved in 2015 by the.Department t l subject:to"the criteria set forth in Water Cade section 1810. j ii 23. The Water. Board will prioritize new and amended safe drinking water permits that enhance water supply and.reliabMty for community wpter systems facia !l water shortages.orthatexpand service connections to imlude existing ;1 ii' residene.es f 6rsg water shortages. As the Departntegt;of Public Health's drinking water program Was transferred to the Water board, any reference to the Department of'Public Health iii any prior Proclamation or Executive Order 'I listed in Paragraph 1 is deemed to refer to the Water Board. � 24. The California Department of Forestry and Fire Protection shall laurich a I public information campaign to educate the public an actions they can take to help to prevent wildfires including the proper treatment of dead and dying 3i trees, Pursuant to Government Code section 8645, $1.2 million from the State ?l` it �esponsjbiltty Area Fire Prevention Fund (Fund 3063)shall be allocated to the California Department of Forestry and Fire Protection to carry out this directive. 25. The Energy Commission shall expedite the processing of all applications or petitions for amendments to power plant certifications issued by the Energy 1j Commission for the purpose of securing alternate water supply necessary for continued power plant operation. Title 20, section 1760 of the California Code of Regulations is hereby waived for any such petition, and the Energy l Commission is authorized to create and implement an alternative process to lli consider such petitions. This process may delegate amendment approval ISE, i authority, as appropriate, to the Energy Corrmmisslon Executive Director. The E l Energy Commission shall give timely notice to all relevant local, regional, and � la state agencies of any petition; subject to this d,rective, and shall post on its website any such petition. r � ii I�� E 20. For purposes of carrying out directives 2-9, 11 16-17, 20-23, and 25, Division 13(commencing with section 21000)of the Public Resources Gadd _ and regulations adopted pursuant to that,Division are hereby suspended. This suspension applies to any actions taken by state agencies, l and for actions taken by local agencies where the state agency with primary res.porisibility for implementing the. directive concurs that focal action is required,as well as for any necessary permits or approvals required to i complete these actions: This suspension;and those specified in paragraph 9 of the January 17, 2014 Proclamation, paragraph 19 of the April 25, 2014 prociamation, and paragraph 4 of Executive Order B-26-14,'shall remain in ; effect until May 31, 2016, Drought relief actlons taken pursuant to these i3 paragraphs that are started priar to May 31,2016,but not completed, .shall note subiect to Division 13 (commencing with section 21000)sof the Public � i Resources Codefor the'titrte reg:u red to complete fFieni. ! 27. For purposes of carrying out directives 2.0 and 21, section 13247 andChapter 3 of Part 3(;commencing With section.85225)of.the Water Code are suspended. 1 28. For action28. 1=ar actions called for in this proclamation in directive 20, the Department shall exercise any authority vested in the.Central Walley Flood Protection ,} j Board, as codified in Water Code section8521,et seq.,that is necessary to '1 enable these urgent actions to be taken more quickly than otherwise possible, The Director of the Department of Water Resources is specifically authorized, on behalf of the State of.California, to request that the Secretary of the Army, on the recommendation of the Chief of Engineers.of the Army Corps of i ti Engineers=grant vny permission required pursuantto section 14 ofthe.Rivers i= and Harbors Act of 1899 and codified in section 48 of title 33 of the United States Code. IiI 29. The Department is directed to enter into agreements with landowners for the purposes of planning and installation of the Emergency Drought Barriers in 2015 to the extent necessary to accommodate access to barrier locations, land-side and water-sine construction, and materials staging in proximity to f i barrier locations. Where the Department is unable to reach an agreement } with landowners, the Department may exercise the full authority of r Government Cade section 5572. 1 �E 30. For purposes of this Executive Order, chapter 3.5 (commencing with section 11340) of part 1 of division 3 of the Government Code and chapter 5 j (commencing with section 25400) of division 15 of the Public Resources i Code are suspended for the development and adoption of regulations or 11, i} guidelines needed to carry out the provisions in this Order, Any entity issuing regulatlorIs or guidelines pursuant to this directive shall conduct a public . ii meeting on the regulations and guidelines prior to adopting them. i F i� �� 11 i; 31.. In order to ensure that equ#nent.and services necessary for drought ' response can be procured quickly the provisions of the Government Code and the Public Contract Code applicable to state contracts, including-, but not. limited to, advertising and competitive bidding requirements,we hereby f i' suspended for directives 17, 20, and 24. Approval by the Department of €I Finance is requited prior to the.,execution of any contract entered.into I pursuant to these directives. E Ei This Executive Order is not intended to, and does not, create any rights or {I benefits, substantive or procedural,enforceable at law or in equity,against the State l of California, its agencies, departments, entities, officers, employees, or any other ,person. ` �j ii ! I FURTHER DIRECT that as soon as hereafter possible, this Order be filed in t; .j the Office of the Secretary of State and that widespread publicity and notice be given i {{E! to this Order, i! IN.WITNESS WHEREOF I have i hereunto set my hand and caused the i! Great Seal of the State of California to beaffixed this 1'f day of April 2015-. : EE I ii EDMUND G BROWN:J.R, Governor of California ATTEST: I I ALEX PADILLA Secretary of State r !( E t �f {I! EXHIBIT �` I sl - PLAZA BANDERAS HOTEL & MIXED USE DEVELOPMENT � {, �. c"s�� � 3 S�`� As �t'�`2-'�`s'� n„:rm,r,�=v st,-�•i `r'k.;✓€^ q dk�� CDP -0 DEVELOPMENTCOMPREHENSVE C t.UAAPPROVED ja :. APPROVED pprove d 10-05-10& 10-19-` O UTY OP SAN JUAN CAMTRARO CITY�7r 3ALiFOr'NIA a SAti JUAN(�f[E5T?RNO Plaza Bari Mixed Use Development COMPREHENSIVE DEVELOPMENT PLAN City of Sari Juan Capistrano Approved per resolution # 10-10-05-05 City Council Ordinance#974 October 5, 2410 October 19, 2010 Stroscher G3, LL Gretchen Str®scher•Thomson, President PLAZA BANDERAS Section 1.4.3: Existing & Proposed General Plan Land Use Section 1.5. _ CEQA Compliance Designation Development of the Plaza Banderas Hotel and Mixed-Use All properties contained within the boundary of the existing Development CDP shall comply with all applicable project area presently have a land use designation of General requirements of the California Environmental Quality Act Commercial (LU 31) The intent of this proposal is to change (CEQA) Guidelines for Environmental Impact Reports (EIR's) the land use and zoning from their current designations to a in compliance with Public resources Code, Section 21000 et Planned Community (PC) District to facilitate the adoption of seq. The EIR certified as part of this CDP shall apply to all the plaza Banderas Hotel and Mixed-Use Development CDP. development within the proposed project area, and Exhibit #1-3 illustrates the existing & proposed land use pLa pplicable mitigation measures adopted in the EIR shall apply designations for the project site. each development activity within the project area. It is the sponsibility of the City of San Juan Capistrano to ensure that l environmental requirements and mitigation measures pplicable to this CDP are implemented in accordance withate law as the project site develops. Comprehensive Development M