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16-0517_PACIFIC POINT DEVELOPMENT PARTNERS, LLC_Agenda Report_D25t1712016 D2 TO City of San Juan Caplstrano Agenda Report Honorable Mayor and Members of the City Council .ø""siegel, city ManagerFROM SUBMITTED BY: Joel Rojas, Development Services Dire PREPARED BY: Mathew Evans, Contract Planne SUBJECT Consideration of a time extension request to amend the Amended and Restated Development Agreement for the Pacifica San Juan Project between the City of San Juan Capistrano and Pacific Point Development Partners, LLC, for a 257-acre project site generally located between the intersection of Camino Las Ramblas at Avenida California and Vista Marina at Valle Road east of lnterstate 5, south and east of McCracken Hill, south of the San Juan Meadows project, and west of the Lomas San Juan neighborhood (Assessor's Parcel Numbers: 675-081-17 through 21,23; 675-085- 01 through 48; 675-351-17; 675-411-1 through 75; 675-421-01 through 19; 675-431-01 through 39; 675-441-01 through 03; 675- 442-0l through 07',675-443-01 through 03; 675-444-01 through 25; 675-451-01 through 31; 675-461-01 through 52', and 675-471-01 through a1) (Applicant: Pacific Point Development Partners, LLC). RECOMMENDATION: Open the public hearing, receive testimony, close the public hearing, and by motion: Approve the introduction and first reading of an ordinance of the City Council of the City of San Juan Capistrano approving and adopting an amendment to the Amended and Restated Development Agreement from January 16, 2017 to January 16, 2022 for an approved 292-acre tract to be developed with 416 dwelling units subject to Comprehensive Development Plan (CDP) 81-01, Forster Canyon (applicant: Pacific Point Development Partners, LLC) (the "Pacifica San Juan project") (Attachment 1), City Council Agenda Report May 17,2016 Paoe 2 of 5 EXECUT¡VE SUMMARY Taylor Morrison Homes, on behalf of Pacific Point Development Partners, LLC (PPDP) has submitted a request and justification (Attachment 2) to extend the term of the Amended and Restated Development Agreement between the City of San Juan Capistrano and PPDP for an additional 60-month period ending on January 16,2022. PPDP, the new owners of the project, are currently processing entitlements for new home construction within five (5) of the six (6) remaining tracts, and although they plan on beginning construction later this year, they anticipate that the build-out time will take approximately 5 years, The extension would not materially change or expand the scope of the development allowable under the original project approvals and the current Amended and Restated Development Agreement. The project site is the 257-acre Pacifica San Juan planning area and is subject to the provisions of the Forster Canyon Comprehensive Development Plan (CDP) 81-01. DISCUSSION/ANALYSIS: The Pacifica San Juan Project was entitled in June 1992 for the development of 350 dwelling units on 257 acres including single-family residential and multiple-family residential housing as well as ancillary uses. ln 2002, the City approved an Amended Development Agreement, and in 2004, approved an Amended and Restated Development Agreement with an allowance for the development of up to 416 dwelling units. ln 2012, the project was purchased by LV Pacific Point LLC (LVPP), a Lehman Brothers Holding, which in turn sold the project to PPDP on May 19,2015. ln May 2014 the City Council approved an Amendment to the Development Agreement requested by LVPP that extended the term of the agreement to January 16,2017. Since then, LVPP and PPDP have addressed a wide range of outstanding project-related City entitlement issues, including amending and restating eight Project Subdivision lmprovement Agreements, the project's lmprovement and Reimbursement Agreement, and the project's Special 4(d) lnterim Habitat Loss lmplementation Agreement. ln addition, LVPP paid over $1.9 million of past due City impact fees, Because Lehman Brothers Holdings is not a developer or in the business of building homes, it was mutually understood by both the applicant and the City that the 2014 extension was for the purpose of allowing LVPP time to get the project to a point where it could be sold to a builder that would complete the project. Furthermore, the Amended and Restated Development Agreement does not prohibit extensions, nor did it place a restriction on the maximum number of extensions the owners could request. lt is anticipated that the development of the remaining tracts will extend beyond the Amended and Restated Development Agreement's January 16,2017 expiration. Thus, the applicant is requesting the additional 60-month period ending on January 16,2022, to allow them to finish the project. City Council Agenda Report May 17,2016 Paoe 3 of 5 LV Pacific Point LLC and PPDP have also worked closely with the US Fish and Wildlife Service (USFWS), the California Department of Fish and Wildlife (CDFW), and the City to address the project's habitat mitigation obligations, including: o Facilitating issuance of the project's Revised Special 4(d) Rule lnterim Habitat Loss Permit for Tentative Tract 14196 (Pacific Point Project aka Pacifica San Juan) by the USFWS and CDFW;. Executing a habitat restoration and conservation agreement with the Laguna Heights Community Association related to the restoration of approximately 33 acres of off-site open space;. Preparing on-site and off-site habitat mitigation plans; . Preparing on-site and off-site perpetual management plans; o Executing and recording on-site and off-site conservation easement deeds; o Executing a management and funding agreement with the Center for Natural Lands Management; ando Funding $1,250,868 in non-wasting endowments. PPDP commenced the on-site and off-site restoration work in late October 2015. Furthermore, LV Pacific Point LLC and PPDP have worked closely with the City and the California Department of Transportation (Caltrans) to identify and permit a mutually agreed upon design and improvement of the l-5/La Novia Avenue and Valle Road intersection, including obtaining: o Caltrans approval of the required lntersection Control Evaluation o City approval of the proposed roundabout concept; o City approval of a resolution adopting the required CEQA findings; o City and Caltrans approval of the required Permit Engineering Evaluation Permit; and. City and Caltrans approval of the improvement plans (currently pending). Currently, PPDP is in the process of securing contractor proposals to construct the intersection improvement and anticipates start of construction later this year, with anticipated completion in 2017. PPDP has also recently started construction on two of the nine residential neighborhoods within the Pacific San Juan development (see Enclosure 1), including Tract 14196 "Belle Haven" (37 new homes) and Tract 16750 "Blue Harbor" (23 new homes), and has made application for Architectural Control review of the recreation center ("Splashes") and for all of the remaining neighborhoods within the project, including: . Tract 15609 "Peninsula" -23 single-family homes;. Tract 16751"Crystal Downs North" - 22 single-family homes; o Tract 16752 "Crystal Downs" - 82 single-family homes; City Council Agenda Report May 17,2016 Paoe 4 of 5 . Tract 16747 "The Cove" -74 attached units; ando Tract 15687 "Pearl" - 59 single-family homes FISCAL IMPACT There is no direct fiscal impact resulting from the requested time extension of the Amended and Restated Development Agreement. The Public Works and Utilities Department is updating the required Subdivision lmprovement Agreements and Performance Bonds for the project to ensure there are adequate sureties to insure construction of the remaining public infrastructure. ENVIRONMENTAL IMPACT: A previously certified environmental impact report (ElR No. 88-02) was prepared and approved for the Pacifica San Juan project on August 20, 1991, and a Final Supplemental EIR was prepared and certified by the City Council (Resolution 02-07-02- 05) on September 2, 2003 (SCH #2001061018). The Development Agreement and subsequent amendments thereto are consistent with adopted EIR No. 88-02 and the Supplemental EIR; therefore, the EIR/SEIR serves as the environmental documentation for this Amended and Restated Development Agreement Amendment under provisions of California Environmental Quality Act Section 21157.1. PRIOR CITY ti N c IL REVIEW a a O a On June 16, 1992, the City Council conditionally approved amendments to Comprehensive Development Plan (CDP) 81-02, Forster Canyon, and conditionally approved Tentative Tract Map (TTM) 14196, Pacific Point, to allow the development of 350 dwelling units/lots on the 292-acre site. On August 6, 1992, the City Council approved a 1O-year Development Agreement for the project effective through August 6,2002. On July 2, 2002, the City Council approved an extension of the 1992 Development Agreement extending the term of the agreement to November 6, 2005. On September 16, 2003, the City Council conditionally approved amendments to Comprehensive Development Plan (CDP) 81-02, Forster Canyon, and conditionally approved Tentative Tract Map (TTM) 15609, Pacifica San Juan, for a portion of the Forster Canyon Planned Community to allow a total of 416 dwelling units on the SunCal portion of the development site. On June 15, 2004, the City Council approved the Amended and Restated Development Agreement effective July 16, 2004, through July 16, 2014 (Attachment 3). The extension was to allow completion of the construction of the approved residential units and completion of the planned public improvements serving the development. On May 6, 2014, the City Council approved a term extension of the Amended and Restated Development Agreement, effective through January 16, 2017 . o City Council Agenda Report May 17,2016 Paoe 5 of 5 On May 5,2015, the City Council approved the LVPP and PPDP executed the assignment and assumption of the DevelopmentAgreement, coMMtsstoN/co ITTEE/BOARD REVIEW AND RE ENDATIONS On April 26,2016, the Planning Commission voted 5-0 to approve Resolution 16-04-26- 02, which recommended that the City Council approve the Amendment to the Amended and Restated Development Agreement for the Pacific San Juan Project allowing the 60- month extension (Attachment 4). Commissioner Nelson recused and removed himself from the Chamber because he lives less than 500 feet from the overall project boundaries. The Planning Commission then voted 5-0 to appoint commissioner Speros as an affirmative representative and Commissioner Neely as an alternate representative to attend the City Council meeting to represent the view of the Commission and to answer any questions. NOTlFICATION: 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 within 1,000 feet as listed on the Orange County Real Property Tax Assessment rolls and has been published in the Orange County Register at least 10 days prior to the hearing. This agenda item has been provided to the applicant and its representative through posting of the agenda packet on the City's website. Tony Brown Laura Freese Janis Cram Paul Fulbright ATTACHMENT(SI: Attachment 1 - City Council Ordinance and DevelopmentAgreement Extension Attachment2 - Developer Justification and Project Description Attachment 3 - July 2004 Amended and Restated Development Agreement Attachment 4 - Planning Commission Resolution 16-04-26-02 ENCLOSURE(S): Enclosure 1 - Pacifica San Juan Master Land Plan (11" x 17") a ORDINANCE NO. XX AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF SAN JUAN CAPISTRANO APPROVING AND ADOPTING AN AMENDMENT TO THE AMENDED AND RESTATED DEVELOPMENT AGREEMENT FROM JANUARY 16, 2017 TO JANUARY 16, 2022 FOR AN APPROVED 292. ACRE TRACT TO BE DEVELOPED WITH 416 DWELLING UNITS SUBJECT TO COMPREHENSTVE DEVELOPMENT PLAN (CDP) 81-01, FORSTER CANYON (APPLICANT: PACIFIC POINT DEVELOPMENT PARTNERS, LLC) (THE "PAC|F|CA SAN JUAN PROJECT") WHEREAS, Pacific Point Development Partners, LLC has requested approval of an amendment to the Development Agreement between the City and Pacific Point Development Partners, LLC's for an undeveloped porlion of a 257-acre development project which is commonly known as the "Pacifica San Juan" Project, which Agreement was originally executed in 1992, amended in 2002, amended and restated in 2004, and amended again in 2014 (collectively, the "Development Agreement"); and, WHEREAS, if approved, the proposed amendment to the Development Agreement ("proposed DA Amendment") would extend the term of the Development Agreement by sixty (60) months to end on January 16,2022, and all other aspects of the Development Agreement (as amended and restated in 2004 and 2014) would remain the same; and, WHEREAS, the potential environmental impacts of the proposed DA Amendment have been previously addressed in full compliance with the provisions of the California Environmental Quality Act (CEOA) and its Guidelines, and no further environmental analysis is required prior to the approval of the proposed DA Amendment because: a) The environmental impacts of the Pacifica San Juan project have been fully analyzed by the Pacific Point Final Environmental lmpact Report ("ElR') certified by the City Council on August 1, 1991, and by the Pacifica San Juan Supplemental EIR certified by the City Council on September 2,2003, b) The proposed DA Amendment does not propose any change in the previously approved project or any change which could potentially result in either a direct or indirect physical change in the environment, the proposed DA Amendment will not result in new, potentially significant environmental effects, and c) None of the conditions described in CEQA Guidelines Sections 15162, 15163, or 15164 which would call for the preparation of a Subsequent or Supplemental ElR, or an EIR Addendum, would occur as a result of the proposed DA Amendment; and, ATTACHMENT 1 WHEREAS, the Planning Commission held a duly-noticed public hearing on April 26,2016, opened and closed a public hearing and voted unanimously to adopt Resolution 16-4-26-02, recommending that the City Council adopt this ordinance and grant the 60-month extension from January 16, 2017 to January 16, 2022; and WHEREAS, the City Council conducted a duly-noticed public hearing on May 17, 2016 pursuant to Government Code Section 65867 and Title 9, Land Use Code, Section 9-2.302 to consider the proposed DA Amendment, and the City Council has considered all relevant public testimony; and, WHEREAS, the record of proceedings on which the City Council's decision is based is located at City Hall for the City of San Juan Capistrano, located at 32400 Paseo Adelanto, San Juan Capistrano, California and the custodian of record of proceedings is the City Clerk. NOW THEREFORE, THE CITY COUNCIL OF THE CITY OF SAN JUAN CAPISTRANO, CALIFORNIA, DOES HEREBY ORDAIN AS FOLLOWS: SECTION 1. Recitals. The above recitations are true and correct and are adopted as the findings of the City Council. SECTION 2.Findinss The City Council of the City of San Juan Capistrano makes the following additional findings: 1. The proposed 60 month time extension for the Development Agreement provides for the continued development of the "Pacifica San Juan" Project consistent with the City's General Plan and as approved by the City Council; and 2. The proposed DA Amendment makes no other changes to the Development Agreement (as amended and restated in 2004 and 2014) and remains consistent with the General Plan Public Services Element because the project includes provisions for addressing project-related capital facility impacts to the City's infrastructure; and 3. The proposed DA Amendment is authorized and consistent with the provisions of Government Code Sections 65864 through 65869.5 and related City ordinances and policies. SECT¡ON 3 Amendment Pursuant to Government Code Section 65868, the City Council does hereby approve and adopt the "Amendment to the Amended and Restated Development 2 Agreement (Pacifica San Juan Project) by and between the City of San Juan Capistrano and Pacific Point Development Partners, LLC", which is attached as Exhibit A, and incorporated herein by reference. The Mayor is hereby authorized to execute said agreement on behalf of the City of San Juan Capistrano. SECTION 4 Severability. lf any section, subsection, subdivision, paragraph, sentence, clause or phrase, or portion of this Ordinance is, for any reason, held to be unconstitutional or invalid or ineffective by any court of competent jurisdiction, such decision shall not affect the validity or effectiveness of the remaining portions of this Ordinance or any part thereof. The City Council herby declares that it would have adopted this Ordinance and each section, subsection, subdivision, paragraph sentence, clause or phrase of this Ordinance irrespective of the fact that one or more sections, subsections, subdivisions, paragraphs, sentences, clauses or phrases be declared unconstitutional or invalid or ineffective. To this end the provisions of this Ordinance are declared to be severable. SECTION 5 Effective Date. This Ordinance shall take effect and be in force thirty (30) days after its passage SECTION 6 City Clerk's Certification, The City Clerk shall certify to the adoption of this Ordinance and cause the same to be posted at the duly designated posting places within the City and published once within fifteen (15) days after passage and adoption as required by law; or, in the alternative, the City Clerk may cause to be published a summary of this Ordinance and a certified copy of the text of this Ordinance shall be posted in the Office of the City Clerk five (5) days prior to the date of adoption of this Ordinance; and, within fifteen (15) days after adoption, the City Clerk shall cause to be published the aforementioned summary and shall post a certified copy of this Ordinance, together with the vote for and against the same, in the Office of the City Clerk. IS ADOPTED ON THE 6TH DAY OF JUNE, 2016. PAM PATTERSON, MAYOR ATTEST J MARIA MORRIS, CITY CLERK RECORDING REQUESTED BY: City of San Juan Capistrano 32400 Paseo Adelanto San Juan Capistrano, CA 92675 WHEN RECORDED, MAIL TO: Maria Morris, City Clerk City of San Juan Capistrano 32400 Paseo Adelanto San Juan Capistrano, CA 92675 Exempt from Recording Fees: Government Code SS27383, 6103 City of San Juan Capistrano This Space for Recorder's Use Only Second Amendment to Amended and Restated Development Agreement for the Pacifica San Juan Project Between the City of San Juan Gapistrano and Pacific Point Development Partners, LLC 6 I I 47.00000u4820090. I Page 1 EXHIBIT A SECOND AMENDMENT TO AMENDED AND RESTATED DEVELOPMENT AGREEMENT FOR THE PACIFICA SAN JUAN PROJECT BETWEEN THE CITY OF SAN JUAN CAPISTRANO AND PACIFIC POINT DEVELOPMENT PARTNERS, LLC This Second Amendment to the Amended and Restated Development Agreement for the Pacifica San Juan Project (the "Amendment") is entered into between the City of San Juan Capistrano, a municipal corporation ("City"), and Pacific Point Development Partners, LLC, a California limited liability company ("Owner"). City and Owner are referred to collectively within this Amendment as the "Parties." RECITALS A. Owner owns the real property within the City (the "Property") which is described on Exhibit "A" and shown on Exhibit "8" to this Amendment. The Property represents the remaining undeveloped portion o'f a 257-acre development project which has been known as both "Pacific Point" and "Pacifica San Juan" (the "Project"). B. In 1992, City and Owner's predecessors entered into a Development Ag which was subsequently amended in2002 and amended and restated in 2 Amended on May 16,2014 (collectively, the "Development Agreement"). C. The Parties have now agreed to an extension of the Term of the Development Agreement. D. This extension was approved by the City Council by ordinance on 2016. AGREEMENT The Parties agree as follows 1. Section 4.1 of the Development Agreement shall be amended in its entirety to read: "Term of Agreement. Unless othenruise extended, terminated or modified pursuant to this Agreement, the term of this Agreement (the "Term") shall commence on the Effective Date and shall extend through January 16,2022." Except as so modified, all provisions of the Development Agreement shall remain in full force and effect. This Amendment has been signed as of approving this Amendment. ,2016, the effective date of the ordinance lSignatures on following pagel reement 004 and 6 l r 47.00000\24820090. I Page 2 SIGNATURE PAGE TO SECOND AMENDMENT TO AMENDED AND RESTATED DEVELOPMENT AGREEMENT FOR THE PACIFICA SAN JUAN PROJECT BETWEEN THE CITY OF SAN JUAN CAPISTRANO AND PACIFIC POINT DEVELOPMENT PARTNERS, LLC "City"ttOwnertt City of San Juan Capistrano, a municipal corporation B Mayor Attest Maria Morris, City Clerk Approve as to Form City Attorney Pacific Point Development Partners, LLC By Name Title 6 I 147.00000\24820090. I Page 3 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 ofthat document, STATE OF CALIFORNIA COUNTY OF On _,20-, before ffiê, ,Notary Public, personally appeared , who proved to me on the basis of satisfactory evidence to be the person(s) whose name is subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity, and that by his/her/their signature on the instrument the person, or the entity upon behalf of which the person 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. WITNESS my hand and official seal Signature (seal) ) ) ) 6 l I 47.00000u4820090. l Page 4 EXHIBIT A Legal Description of the PropeÊy Real property In the City of San Juan Capistrano, County of Orange, State of California, described as follows: PARCEL 1: (APN'S: 675-085-39, 675-085-01 THROUGH 675-085-38, 675-085-47,675-085- 48, 675-081-19, 675-085-45 AND 675-085-46) LOTS 1, 7 THROUGH 44, INCLUSIVE, AND Lk 1 f FRED LOTS A THROUGH E, INCLUSIVE, OF TRACT NO, 14196, AS pER MAp RECORDED IN BOOK 875, PAGES 16 THRU 21 INCLUSIVE, OF MISCELLANEOUS MAPS IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY, AMENDED PURSUANTTO THAT CERTAIN CERTIFICATE OF CORRECTION RECORDED DECEMBER 22,2OOB AS INSTRUMENT NO. 2OOBOOO5B47OB OF OFFICIAL RECORDS, ALSO EXCEPT THEREFROM, AN UNDIVIDED ONE-HALF INTEREST IN ALL THE OIL, GAS AND OTHER HYDROCARBON SUBSTANCES, IN, UPON AND UNDER SAID LAND, TOGETHER WITH THE INCOME ACCRUING HEREFROM, AS RESERVED BY HOWARD L. KRUM AND FAY WILSON KRUM, HUSBAND AND WIFE, BY DEED RECORDED JUNE 6, 1956, IN BOOK 3538, PAGE 550 OF OFFICIAL RECORDS, AND RERECORDED JULY 20, 1956, IN BOOK 3584, PAGE 339, OF OFFICIAL RECORDS, ALSO EXCEPTTHEREFROM ALL WATER RIGHTS AS DEDICATED TO THE CITY OF SAN JUAN CAPISTRANO ON THE MAP OF TRACT NO. 14196, PARCEL 2: (APN'S: 675-444-Ot THROUGH 675-444 23, 675-444-24, 675-444-25, 675-442' 05 THROUGH 675-442-07) LOTS 1 THROUGH 23, INCLUSIVE, AND LEI ILRED LOTS A, B, AND D THROUGH F, INCLUSIVE, OF TRACT NO, 15609, AS PER MAP RECORDED IN BOOK BB5, PAGES 37 THRU 44 INCLUSIVE, OF MISCELI.ANEOUS MAPS IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNW. EXCEPT THEREFROM ALL WATER RIGHTS AS DEDICATED TO THE CÏTY OF SAN JUAN CAPISTRANO ON THE MAP OF TRACT NO, 15609. PARCEL 3 : (APN'S: 675-08L-I7, 675-081-20, 675-OBL-22, 675-4It-7 4, 675-081-21, 67 5- 0B 1-23, 67 5-4LL-7 2, 675-08 1- 1B) LOTS 1 AND 2, INCLUSIVE, AND LETTERED LOTS A THROUGH E, INCLUSIVE, OF TRACT NO L5687, AS pER MAP RECORDED IN BOOK 875, PAGES 1 THRU 5, INCLUSIVE, OF MISCELLANEOUS MAPS IN THE OFFICE OF THE COUNW RECORDER OF SAID COUNTY. ALSO EXCEPT THEREFROM, AN UNDIVIDED ONE-HALF INTEREST IN ALL THE OIL, GAS AND OTHER HYDROCARBON SUBSTANCES, IN, UPON AND UNDER SAID LAND, TOGETHER WITH THE INCOME ACCRUING HEREFROM, AS RESERVED BY HOWARD L, KRUM AND FAY WILSON KRUM, HUSBAND AND WIFE, BY DEED RECORDED JUNE 6, 1956, IN BOOK 3538, PAGE 550 OF oFFICIAL RECORDS, AND RERECORDED JULY 20, 1956, IN BOOK 3584, PAGE 339, OF OFFICIAL RECORDS. ALSO EXCEPT THEREFROM ALL WATER RIGHTS AS DEDICATED TO THE CITY OF SAN JUAN CAPISTRANO ON THE MAP OF TRACT NO, 15687, 6l 147.00000\24820090. I Page 5 PARCEL 4: (APN'S; 675-443-02, 675-443-0t, 675-44t.01, 675-443-03, 675-442-04, 675-44t-05, 675' 442-0t, 675-44L-03, 67 5-44L-02) LOTS 1 AND 2, INCLUSIVE, AND LETTERED LOTS A, B, AND D THROUGH H, INCLUSNE, OF TRACT NO. T6747, AS PER MAP RECORDED IN BOOK BB5, PAGES lOTHRU 18 INCLUSIVE, OF MISCELLANEOUS MAPS IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY. PARCEL 4A: (APNI 675-44t-04 AND 675-441-06) LOT 1 OFTRACT NO, L6747, AS PER MAP RECORDED IN BOOK BB5, PAGES 10 THRU 18 INCLUSIVE, OF MISCELLANEOUS MAPS IN THE OFFICE OF THE. COUNTY RECORDER OF SAID COUNTY. ACCEPTING THEREFROM THAT PORTON OF LE 1 1 FRED LOT I OF TRACT T6747,INCLUDED WITHIN PARCEL 1 AS DESCRIBED IN DCHIBITA'' AND SHOWN ON EXHIBIT "B'' OF LOT LINE ADJUSTMENT NO. 07-16747.0T, SAID LOT LINE ADJUSTMENT RECORDED MAY B, 2007, AS INSTRUMENT NO. 07-0298751, OF OFFICIAL RECORDS OF SAID COUNTY, ALSO EXCEPT THEREFROM ALL WATER RIGHTS AS DEDICATED TO THE CITY OF SAN JUAN CAPISTRANO ON THE MAP OF TRACT NO. T6747. PARCEL 5: (APN'S; 675-4tl-75 AND 675-411-71) LETTERED LOTS AAND B, INCLUSIVE, OFTRACT NO. 16748, AS PER MAP RECORDED IN BOOK 875, PAGES 6 THRU 10 INCLUSNE, OF MISCELI.ANEOUS MAPS IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY. ALSO EXCEPTTHEREFROM, AN UNDIVIDED ONE-HALF INTEREST IN ALLTHE OIL, GAS AND OTHER HYDROCARBON SUBSTANCES, IN, UPON AND UNDER SAID LAND, TOGETHER WITH THE INCOME ACCRUING HEREFROM, AS RESERVED BY HOWARD L. KRUM AND FAY WILSON KRUM, HUSBAND AND WIFE, By DEED RECORDED JUNE 6, 1956, IN BOOK 3538, PAGE 550 OF OFFICIAL RECORDS, AND RERECORDED JULY 20, 1956, IN BOOK 3584, PAGE 339, OF OFFICIAL RECORDS. ALSO EXCEPT THEREFROM ALL WATER RIGHTS AS DEDICATED TO THE CITY OF SAN JUAN CAPISTRANO ON THE MAP OFTRACT NO. 16748, PARCEL 6: (APN: 675.4t1-73) LETTERED LOT A, OF TMCT NO, 16749, AS PER MAP RECORDED IN BOOK 875, PAGES 11 THRU 15 INCLUSIVE, OF MISCELI-ANEOUS MAPS IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY. ALSO EXCEPTTHEREFROM, AN UNDIVIDED ONE-HALF INTEREST IN ALLTHE OIL, GAS AND OTHER HYDROCARBON SUBSTANCES, IN, UPON AND UNDER SAID LAND, TOGETHER WITH THE INCOME ACCRUING HEREFROM, AS RESERVED BY HOWARD L, KRUM AND FAY WILSON KRUM, HUSBAND AND WIFE, By DEED RECORDED JUNE 6, 1956, IN BOOK 3538, PAGE 550 OF OFFICIAL RECORDS, AND RERECORDED JULY 20, 1956, IN BOOK 3584, PAGE 339, OF OFFICIAL RECORDS, ALSO EXCEPT THEREFROM ALL WATER RIGHTS AS DEDICATED TO THE CITY OF SAN JUAN CAPISTRANO ON THE MAP OF TRACT NO. 16749. 6 r l 47.00000\24820090. l Page 6 PARCEL 7: (APN'S: 675-421-07 THROUGH 675-42L-I3,675-431-18 THROUGH 675-431-33, 675- 431-38, 675-42I-L9, 675-43t-39, 675-43L-34 THROUGH 675-43L-37, 675-421-L6, 675-4ZL-[B, 67s-351-17 AND 675-361-17) LOTS 16 THROUGH 38, INCLUSIVE, AND LETTERED LOTS A THROUGH J, INCLUSryE, OF TRACT NO. 16750, AS PER MAP RECORDED IN BOOK 883, PAGES 1 THRU 10 INCLUSIVE, OF MISCELLANEOUS MAPS IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY, ALSO EXCEPTTHEREFROM, AN UNDIVIDED ONE-HALF INTEREST IN ALLTHE OIL, GAS AND OTHER HYDROCARBON SUBSTANCES, IN, UPON AND UNDER SAID LAND, TOGETHER WITH THE INCOME ACCRUING HEREFROM, AS RESERVED BY HOWARD L, KRUM AND FAY WILSON KRUM, HUSBAND AND WIFE, BY DEED RECORDED JUNE 6, 1956, IN BOOK 3538, PAGE 550 OF oFFICIAL RECORDS, AND RERECORDED JULY 20, 1956, IN BOOK 3584, PAGE 339, OF OFFICIAL RECORDS. ALSO EXCEPT THEREFROM ALL WATER RIGHTS AS DEDICATED TO THE CITY OF SAN JUAN CAPISTRANO ON THE MAP OFTRACT NO, 16750, PARCEL B: (APN'S: 675-451-01 THROUGH 675-45I-22, 675-451-25, 675-45L-26,675-451-28 THROUGH 67s-451-31) LOTS 1 THROUGH 22, INCLUSIVE, AND LETTERED LOTS A, B, D, E, G AND H, OFTRACT NO, L675T, AS PER MAP RECORDED IN BOOK BB5, PAGES 19 THRU 23 INCLUSIVE, OF MISCELLANEOUS MAPS IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY. EXCEPT THEREFROM ALL WATER RIGHTS AS DEDICATED TO THE CITY OF SAN JUAN CAPISTRANO ON THE MAP OFTRACT NO, 16751, PARCEL 9: (APN'S; 675-47L-01THROUGH 675-47L-4L,675-461-01 THROUGH 675-161-52) LOTS 1 THROUGH 82, INCLUSIVE, AND LETTERED LOTS A THROUGH I, TNCLUSryE, OF TRACT NO, 16752, AS PER MAP RECORDED IN BOOK BB5, PAGES 24 THRU 36 INCLUSIVE, OF MISCELLANEOUS MAPS IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY, ALSO EXCEPT THEREFROM, AN UNDNIDED ONE-HALF INTEREST IN ALL THE OIL, GAS AND OTHER HYDROCARBON SUBSTANCES, IN, UPON AND UNDER SAID I.AND, TOGETHER WITH THE INCOME ACCRUING HEREFROM, AS RESERVED BY HOWARD L. KRUM AND FAY WILSON KRUM, HUSBAND AND WIFE, BY DEED RECORDED JUNE 6, 1956, IN BOOK 3538, PAGE 550 OF oFFICIAL RECORDS, AND RERECORDED JULY 20, 1956, IN BOOK 3584, PAGE 339, OF OFFICIAL RECORDS. ALSO EXCEPTTHEREFROM ALL WATER RIGHTS AS DEDICATED TO THE CITY OF SAN JUAN CAPISTRANO ON THE MAP OF TRACT NO. 16752, 6l 147.00000\24820090. I Page 7 EXHIBIT B Map of the Property Ì. I i¡ 2 I T ú ¡ 'e-¿;'?la 6 I l 47.00000\24820090. I Page I PACIFIC POINT DEVELOPMEI{T PARTNERS LLC February 9,2016 Mr. Sergio Klotz, Acting Development Services Director City of San ]uan Capistrano 32400 Paseo Adelanto San |uan Capistrano, CA 92675 Re: Pacifica San ]uan Development Agreement Dear Mr, Klotz: paci-fic Point Development Partners LLC ("PPDP'), owner of PaciJica San ]uan (thc "Project"), hereby submits this request to amend the Amended and Restated Development Agreement for the pacifica San Juan Project Between the City of San Juan Capistrano and LV Pacific Point LLC, last amended o¡ ¡¿ay 6,2014 (the "Development Agreemenf'), PPDP is the successor-in- interest to LV Pacifió Point LLC in accordance with the Assigrrment and Assumption of Development Agreement executed on May 5, 2A15, a copy of which is attached for your reference. Our only proposed revision to the Development Agreement is the extension of the Term of Agre"-årri (the "Term") clescribed in Section 4.1' by five (5) years from January 1'6, 2017 lo ¡aiuary 1,6, Z0ZZ. This requestecl extension would modify Section 4'1 of the Development Agreement to read: "l.)n1ess otlærtuit* extenelecl, terminøterl or modified pursunnt to this Agreement, tl'te term of tfuis Agreenrerú (tlæ "'lerfl'l') sh{tll comfiie'txce on tlæ Effectizte Døte a.nd sltctll extend tltrough Januøry'16, 2022" . As background, the city of san Juan capistrano (the "clty") city co_u-ncil approved an Anrendnient to tl-re Develc,pment Agreement requested by LV Pacific Point LLC onMay 6,201'4 that exter1clecl the Term tó fanuary 1.6, 2017. LV Pacific Point LLC had taken control of the project tn 2012 as successor-in-interest to SID Partners, Ltd., the previous dcveloper, after the project was for all intents ancl purposes abandoned more than four (4) years due to the national economic downturn and sgbsequent Project-related forcclosure and bankruptcy procecdings. The City understood that, since i,V Pacific Point LLC was not a developer and intencled to sell the project as soon as possible, granting the extension of the Term to January 16,2417 was an interim measure ancl tire ultimate developer woulcl nrost likely request a further extension of the Term i¡ order to have enough time successfully complete development of the Project' As you are aware, PPDP purchased the lrroject from LV Pacific Point LLC on May 19' 2015. Since May of 2014,LV pacific point LLC and PPDP have addressecl a wide range of outstanding project-relatecl City entitlement issues including amending and restating eight (8) Project 1(X) Spectrum Centev Drive, Suite 1450 Irvine, CA 92618 (e49) 341-1200Page 1 ATTACHMENT 2 Subdivision Improvement Agreements, the Projecfs Improvement and Reimbursement Agreement and thc Project's Special 4(d) Interim Habitat Loss Impleçnentation Agreement. In addition, LV Pacific Point LLC paid over $1.9 Million of past due City impact fees. LV Pacific Point LLC and PPDP have also worked closely with the U.S. Fish and Wildlífe Service ("USFWS"), the California Department of Fish and Wildlife ("CDFW") and the Cify to address the Projecfs habitat mitigation obligations inclucling: facilitating issuance of the Prcrjecf s Revised Special a(d) Rule Interim Habitat Loss Permit for Tentative Tract 14196 (Pacific Point Project aka Pacifica San Juan) by the USFWS and CDFW; executing a habitat restoration and conservation agreement with the Laguna Heights Community Association related to the restoration of approximately 33 acres of off-site open space; preparation of on-site and off-site habitat mitigation plans; preparation of on-sitc and off-site perpetual management plans; executing and recording on-site and off-site coÍìservation easement deeds; execuling a managemcnt and funding agreement with the Center for Natural Lands Management; and funding $1,250,868 in non-wasting endowments. PPDP commenced the on-site and off-site restoration work in late October 20L5. Furthermore, LV Pacific Point LLC and PPDP have worked closely with the City and the California Deparfment of Transportation ("Calfrans") to identify and permit a mutually agreed upon design and improvement of the l-llLa Novia Avenue and Valle Road intelsection including obtaining: Caltrans approval of the required Intersecfion Control Evaluation; City approval of ttre proposed roundabout concept; City approval of a resoiulion adopting the required California Environmental Quality Act Mitigated Negative Declaration; City and Caltrans approval of the requirecl Permit Engineering Evaluation Permit; and Cify anci Caltrans approval of the improvement plans (currently pencling). PPDP is in the process of securing conhactor proposals to construct the intersection improvement and anticipates a construction start in April2016 with completion of construction anticípated in early 2017, Finally, PPDP has becn working closely with the City related to the approval of updated architecture for the two (2) partially complete neighborhoods and new architeclure for the three (3) previously platted neighborhoods, along with site plan approval related to the two (2) un- platted parccls. It is anticipated that initial home construction will conìmence in March 201,6, with commencement of home construction on all currently platted neighborhoods later this yeâr. It is anticipated that consf¡uclion of homes on the curently un-platted parcels will corrunence rn early 2017, Based upon the significant progress referenced above, we believe that PPDP has adequately demonstrated its commitment to fulfill all Project obligations and complete development of the Prcrject over the collrse of the next five (5) years. For that reason, we are requesting a five (5) year extension of the Development Agreement Term. We hope the Cify recognizes our progress and ongoing commitment to tl"re Project and understands that our requested extension of the Development Agreement Term will benefit the Cify by positioning the Project for its long-awaitecl successful compleLion' Page 2 Cc: We have included the following additional inJormation as part of this request for extension: a) Assignment and Assumption of Development Agreement executed on May 5,2015; b) Developer Deposi! c) Application; d) Developer Deposit Disclosure and Acknowledgemen! and e) california Environmental Quality Act (cEQA',) Project Description. Please feel free to contact us if we can provide anything else in order to advance this request and complete the DA extension. Bodem Attachments KeithTill Ben Siegel David Contreras Page 3 PACIFICA SAN JUAN CEQA PROIECT DESCRIPTION FOR AMENDMENT TO PRO}ECT DÉVELOPMENT AGREEMENT Pacific Point Development Partners LLC (the "Applicant") owns a portion of land (the "property") within thc approximately 400-acre Forster Canyon Planned Community District (the "'Planned Communiiy"¡ located in the City of San Juan Capistrano (the City")' The ùoundaries of the Property are shown on Exhibit A to this Projcct Description' The Forster Canyon Planned Co*mu.rlty Comprehensive Development Plan ("CDP 81-01") was originally apptoved on March 3,1981, and has been amended several times since that date, Within the Planned Community, the Property represents the remaining undeveloped portion of a257-acre development project which ha.s been known as both "Pacific Point" and "Pacifica San Juan" (the "Project"). ln f 9é1 and1.992, the Cily approved a series of land use actions, including Rez<¡ne Bg-07, Vesting Tentative'fract Map ("VTT'M") 14196 and ameudments to CDP 81-01 for the Project (the "Original Approvals"), At the time of the Origirral Approvals, the City and Pacific Point Partners, L.P., one of the Applicarrt's predecessors-in-interest, entered into a statutory Developrnent Agreetrrent (tire "Óiiginal Developrnent Agreement")which became effective on August 6,1992. Subsequently, on luly 2,2002, the City Council extencled the termination date of the Original Development Agree-ent to November 6, 2005, On June 15, 2004, the City Council further extendéd the term of the Original Development Agrecment to ]uly 1.6, 2014 (the "Amended L)evelopment Agreement"), ın May 6,2014, the City Council further extended the term of the Amencled Development Agreemenf to January 16,2017 (the "2014 DA Amendment"), l'he Amencled Development Agreement as amended by tl're 201"4 DA Amendment will hereinafter be referred to as the "Project Development Agreement'" On September 16,2003, the City Council approved the development of 416 residential units within the Project and conditionally approved VTTM 1"5609 for a portion of the Project, Since that time finai tract maps have båen-recorded within the Project, including those recorded underthefollowingTraciNumbers:14196,15609,15,687,16747,\6,748,16749,1'6750,16751and 16752 (the "Final Maps"). Since the Amended Development Agreement was approved in2004, developmerrt of tl"re Project proceeded anrl a significant nunrbei of homes were constructecl and are now owner occupied. idditionalty, signlficant infrastructure and amenities were completed. However, full development of ihe Project was not cornpleted due to the economic downturn beginning in approximately 2007. ln 2008, LV Pacific Point LLC acquired title to the Property through a non-judicial foreclosure proceeding and assumed the role of "Owncr" under the Project Development Agreement. '['he Applicantþurchascd the Property from l,V Pacific Point LLC on May 19,2015. Page 4 There ¡ow remain 318 units to be built within the Project on lots currently owneci by the Applicant and shown on recorded final tract maps. The Applicant's proposed project consists oÍ approaøl of an "Amended and Restøted Oeaeloþment Agreement' (the "iroposed DA Amendment") to ømenil the Proiect Deuelopment Agreement, ThðProposed DA Amendment would extend the end date of the term of the Project Dãvelopment Agreement from January 1-6,2017 to |anuary 1.6,2022, Approval of the Proposed DA Amendment would continue to ailow the Project to be developed pursuant to CDP 81--01 and any past or future changes to CDP 81-01 which are agreed to by the Applicant' As with the past l)evelopment Agreement extensions, for which the City determined the amendments were not subject to the California Environmental Quality Act ('CEQA"; Cal, Pub, Resources Code Sectiotr jfOOO et seq.) pursuant to Section 15061(bX3) of the State CEQA Guidelines (Cal. Code of Regs., Title 14, Section 15000 et seq.), the proposed amendment to extend the Project Development Agreement would also not be subject to CEQA because there is no possibility that the extension would have a significant effect on the environment' The proposed amendment to the Project Development Agreement merely extencls the duration of iiru ZOf¿ DA Amendment and aisociated land use approvals for five additional years; it does not authorize ncw or additional development not previously approved and studied' Page 5 ¿l\ t.¡ RECORDING REQUESTED BY: City of San Juan Capistrano 32400 Paseo Adelanto San Juan Capistrano, ÇA 92675 AND WHEN RECORDED, MAIL TO: Margaret R. Monahan, City Clerk Gity of San Juan Capistrano 32400 Paseo Adelanto San Juan Capistrano, CA 92675 Exempt from Racording Feesj Gov Çode 27383 & 6103 City of San Juan Çapistrano Rcco¡ded in Official Rccords, Orange County Tom Þaly, Clerk-Recordcr llllltllillllllllilllllllllillllllffiTllllìllllllllillllllllllilllllllllN0 FEE 2004000624737 08:22am 07/1 2/04 211 128 A17 2f 0.00 0"00 0.00 0.00 0.00 0.00 0.00 0.00 This Space for Recorder's Use Only Tltle of Document: Amendment and Restatement of Development Agreement for the Pacific San Juan Proiect Between the Glty of San Juan Capistrano and SJD Partners, Ltd. Effective July 16, 2004 lln )1) tl' /, lvr ATTACHMENT 3 ùì ORIGINAI. RECORDING REQUESTED BY AND WHEN RECORDËD, MAIL TOI City Clerk City of San Juan Capistrano 32400 Paseo Adelanto San Juan Capistrano, CA, 92675 EFFECTIVE DATE: July I6,2OC/. 5il4104 tm6t.2 H&O: #14593 v3 ATVÍENDMENT A}JD RESTATEMENT OF DEVELOPMENT AGREEMENT FOR THE PACIFICA SAN ruAN PROJECT BETWEEN THE CITY OF SAN ruAN CAPISTRANO AND SJD PARTNERS, LTD I TABLE OF CONTENTS Pase t. 1.1 Code Authorization LZ Interest of Owner 1.3 Intent of Parties , 1.3.1 Achievement of General and Comprehensive Developmerrt Plan Goals 1.3.2 ConsistencyFinding.......... L4 Certainty of Process.... 1.5 Plarming Commission - City Council Hearings I,6 City Council Findings 1.7 CityOrdinance,.... 1.8 Consideration.......,...... EXHIBITS GENERAL PROVISIONS. ........ 4.1 Term of Agreement.......4.2 Assignment 4.3 Amendment or Cancellation of Agreement..,.,........ 4.4 Unforeseen Circumstances.....,........, 4.5 Enforcement 4,6 Relationship of the Parties 4.7 Sale to Public; Automatic Termination 5. CONFLICTS OF LAW .....85.1 Conflict of City and State or Federal Laws ..85.1.1 Notice and Copies.... I I 2 n .2 ) ,, ) .3 .3 J. 4. 6 6 6 6 6 7 I 8 8 I5.1.2 Modification Conference....................8 ....8 o .9 .9 .9 .9 .9 .9 6. 5.1.3 City Council Hearings 5.2 Cooperation in Securing Permits DEVELOPMENT OF THE PROPERTY 6.1 PermittedUses.......... 6,2 Future Laws 6.3 Future DiscretionaryReviews....... 6.3.1 ProjectEIR................... 6.3.2 Open Space Dedication 6.4 t).5 6.6 6.7 6.8 6.9 5/t4/04 10061.2 H&O: #14593 v3 Application of Subsequently Enacted Rules, Relations, Etc. Priority Processing Time For Construction and Completion of Project. Residential Building Permit Allocation Plan.......... Certificate of Completion ...,........ l0 l0 10 l1 11 11Tentative Subdivision Maps TABLE OF çONTENTS 6.10 Cooperation in Securing Government Permits/Conflict of Laws.'....." 6.11 Mass Grading Authorized Following Tentative Map....."..'. 7. PUBLIC IMPROVEMENTS PROGRAM 7 .l Responsibility for Public Improvements 7.2 AcquisitiorVCondemnation ofOff-Site Property 7.3 Phasing of Public lmprovements 7.4 Improvements Scheduling .............. 7.5 Finarrcing for Public Improvements. 7.6 Sewer Capacity ...... 8- ANNUAL REVIEW. 8.1 City and Owner Responsibilities .,..... 8.2 Opportunity to be Heard 8.3 Information to be Provided to Owner.. 8.4 Review Letter......... 8.5 Estoppel Çertificates 8.6 Failure of Periodic Review 9. ENFORCED DELAY, DEFAIILT, REMEDIES AND TERMINATION. 9.t GeneralProvisions. 9.2 Default by Crty...... 9.3 Specifïc PerformanceRemedy..... 9-4 Enforced Delay, Extension of Time of Performance 9.5 Institution of Legal Action...,........... 9.6 ApplicableLaws/Attorney'sFees.... 9.7 No W'aiver of Existing Rights or Applicable Laws 1û.ENCUMBR.ANCES AND RELEASES ON PROPERTY. ......... 10.1 Discretion to Encumber.......,........ 10.2 Entitlement to 'Written Notice of Default. 10.3 Property Subject to Pro Rata Claims I l.MISCELLANEOUS PROVISIONS 11,1 Rules of Constructíon.......... ll,2 Severability P¡se ......,...1 I l1 n 11 tz t2 t2 1i t2 .........__.12 2 3 3 3 I 1 I I 13 ,.....14 ....14 14 14 ....14 ....15 l5 15 15 ........,1 5 15 16 .......16 I r.3 11.4 1 1.5 Entire Agreemenq rffaivers, and Amendments.,...... Project as a Private Undertaking Incorporation of Recitals.............. 11.6 Captions 11.7 Consent, 11,8 Covenant of Good Faith and Fair Dealing. I 1.9 Covenant of Cooperation..,.......-... 11.10 .Further Actions and Instruments... I 1.1 I Operating Memoranda and Amendments 5¡14/04 IA06l.2 H&O: #14593 v3 1r TABLE OF CONTENTS l1.t 1.1 Alteration of Permitted Uses.......... 11.1l.2 Increase in Density or Intensity 11.11.3 lncrease in Height and Size..... 11.11.4 Deletion of Reservation Requirements Successors and 4ssigns............ Notices Recording.. Efïective Date Pase ...18 ,..18 ...1 8 I 1.12 il,13 11.14 11.15 ...1 8 T8 18 l9 ...19 5^4/04 1A061.7, H&Q:#14593 v3 lu AMENDMENT AND RESTATEMENT OF DEVELOPMENT AGREEMENT Pacifica San Juan THIS AMENDMENT AND RESTATEMENT OF ÐEVELOPMENT AGREEMENT ("Agreement') is entered into between the CITY OF SAN JUAN CAPISTRANO, a municipal corporation ("City'), and SJD PARTNERS, LTD., a California limited partnership ("Ûvrner"), and their successors or assigns. REcITALS A. City and ûwner's predecessor-in-interest entered into a statutory Development Agreement for the Pacific Point Project, now known as Pacifica San Juan, effective August 6, 1992 ("Developmeut Agreement"). B. On July 2,ZOO2, the City Council of City adopted Resolution No.02-07- 02-05 extending the termination date of the Development Agreement to November 6, 2005. C. On September 2, 2003, the City Council of City certified the Supplemental Environmental hnpact Report ("SEIR") for the previously certified Pacific Point EIR dated August 1, 1991 and approved: (i) an amendment to the Forster Canyon Comprehensive Development Plan ("CDP 81-01') modifying the existing development and zoning standards to allow development of 416 units within the Pacifica San Juan portion of the planned cornmunity; and (ii) a nÊrry vesting tentative tract map (VTTM 15609) for a portion of the Pacifica San Juan site previously included in the VTTM 141.96 arca. D. On Septernber 16, 2003, the City Council of City adopted Ordinance No. 884 amending Forster Canyon CDP 81-01 and adopted Resolution No. 03-09-16-06 conditionally approving VfiM I 5609. E. City and Owner propose to restate and amend the Development Agreement to be consistent with the amended Forster Canyon CDP 81-01, VTTM 15609, VTTM 14196 and the Pacifica San Juan SEIR. 1. AGREEMENT. 1.1 Code Authorization. This Agreement is authorized by and in accordance with Govemment Code Sections 65864 through 65869.5 and related City Ordinances and policies. These laws and policies allow the City to enter into binding development agreements with persons or entities having legal or equitable interests in real property for the purpose of establishing certainty in the development process for both the City and the property owner. 5ll4104 10061.2 H&O: #14593 v3 1 l.Z hrterest of .Owner. Owner is the legal and/or equitable owner of approximately 257 acres of real property located in the City (the "Property") and described on Exhibit "A" and shown on ExhibiJ "B" hereto. The Property forms a portion of the Forster Canyon Planned Community Area. Owner intends to develop the Property pursuant to the amended Forster Canyon CDP 8l-01, VTTM 15609, VTTM 14196 and SEIR (the '?roject"). City and Owner wish to provide for the development of the Property and obtain certainty of development entitlements and obligations in connection therewith. 1.3 Intent of Parties, The development of the Project is intended to implement specific land uses to provide public infrastructure and to generate revenues to the City, all in promotion of the health, safety and general welfare of the City' 1.3.1 Achievement of General and Çomprehensive Developmenl Plan Çoals. Achieving of the goals of CDP 81-01 as well as the City General Plan and important City policies require the cooperation of Owner and City. As a result of the development of the Property, the City will benefit from added residential neighborhoods having a rânge of housing types, significant increases to the real property tax base, and substantial improvements to public infrastructure and facilities including park land, open spâce, and a school site. 1.3.2 Consistencv Findins. By approving and executing this Agreement, the Cify finds that its provisions are consistent with and in the furtherance of the City's General Plan and with CDP 81-01, and the Cify further fïnds and determines that execution of this Agreement is in the best interests of the public health, safety and general welfare of the City's present and future residents, property owners and taxpayers. The Project has been analyzed and reviewed by the City as part of its process of granting development approvals, in view of the enacted land use standards and policies of the City embodied in its Existing Standards and in view of State law including, without limitation, CEQA, 1.4 Certaint)¡ of Process. The phasing, timing and development of the Ptoject and the Public Improvements necessitate a significant commitment of resources, planning and effort by Owner and City, thus requiring certainty in the development proccss, In return for Owner's participation and commitment to the signifïcant contribution of private resources, including substantial economic resources for public purposes, the City wishes to commit to certainty in the development process for the Property. 1,5 Planning Commission - Citv Council Hearines. On May ll, 2004, the Planning Comnission of Cit¡ after giving notice pursuant to Government Code Section 65867, held a public hearing to consider Owner's application for this Agreement. On June l, 2004, the City Council, after providing public notice as required by law, held a public hearing to consider Owner's application for the Agteement. 1.6 Citv Council Findings. The City Council has fourrd that this .A.greement is consistent with the General Plan and CDP 81-01, as well as all other applicable plans, ordinances, policies and regulations of the City. 5/t4t04 tQMt.2 H&O: #14593 v3 ", 1.7 Citv Ordinance. On June 15, 2004, the City Council adopted Ordinance No._ approving this Agreernent (the "Adopting Ordinance"). The Adopting Ordinance became effective on July 16, 2004 (the "Effective Date"). 1.8 Consideration. The City has determined that this Agreemant will further the goals and objectives of the City's land use planning policies, by eliminating uncertainty in plaruring for the orderly development of the Project, to the end that adequate long tenn plans regarding the provision of necessary infrastructure for existing and future city residents can be developed and implemented. Without limiting the generality of the foregoing, the benefits confened by the Project pursuant to this Agreement will help increase traffîc capacity for the road system of the City and will facilitate the installation of certain other significant public improvemants, all of which will significantly promote the health, safety and general welfa¡e of present and future residents of the City. In exchange for these benefits to the Cþ and its residents, the Owner wishes to receive the assurances permitted by State law that the Owner may proceed to develop the Project in accordance with CDP 81-01, VTTM 15609, VTTM 14196 and the SEIR, and at a rate of development subject to the terms and conditions of this Agreement. The rights, duties, obligations and assurances provided by the City and the Owner to each other in this Agreement are being provided pursuant to and as contemplated by State law, are bargained for and in consideration for the undertakings of the parties, and are intended to be and have been relied upon by the parties to their detriment, such that the Ûwner will be deemed to have a vested interest in CDP 81-01, which will be the controlling land use plan for the Project in combination with this Agreement. 2. DEFINITIONS. The following definitions apply only to their use within this Agreement and not to any other document or agreement pertaining to the Project, including CDP 81-01. These definitions are intended to have substantive effect. 2.1 The "ÅdqpliÊg-Ordinance" refers to City Ordinance No. _ adopted by the City Council on 2004, authorizing the Çity to enter into this Agreement. 2.2 "Afreement" refers to this "Amendment and Restatement of Development Agreement" relating to the Pacifica San Juan Project. 2.3 The "Approval Date" refers to 20CI4, the date upon which the City Council approved the Adopting Ordinance. 2.4 All forms of use of the verb "ass!gg" and the nouns "4ÊÊig¡qent" and '(Aggigreg" shall include all contexts of hypothecations, sales, conveyances, transfers, leases and assignments. 2.5 "çE(fA" refers to the Califomia Environmental Quality Act (Public Resources Code Sections 21,000, et seq.). 2.6 '{C&" refers to the City of San luan Capistrano, Califomia. s/t4/04 l0úl.z H&O; #14593 v3 3 2.1 "Çi!y-@!!" refers to the city council of the City. 2,8 "Comprehensjve Devel@' refers to the Amended Forster Canyon Comprehensive Development Plan 8l-01 approved by City Council Ordinance No. 884 on September 16, 2003, a copy of which is on file u¡ith the City Clerk. 2.9 "Çg_!¡qtÐa_Residential" refers to the Country Residential åJea as generally shown on Exhibit "B." 2.10 "@qd" refers to the period of time permitted pursuant to Section 9 in this Agreernent. 2-ll A "dgy" or "deyg" refers to a calendar day, unless expressly stated to be a business day. 2.12 A "Default" refers to any material default, breach or violation of the provisions of this Agreement. A "Çily_DgfaUft'refers to a Default by the City, while an "Ovmef, þ¡Fault" refers to a Default by Owner. 2.13 The "Director" refers to the Director of Planning Services of the City or any successor to that title or a successor title. 2.14 The "Effective Date" refers to the effective date of the Adopting Ordinance. Z.l5 The "$$" refers to the Supplemental Environmental Impact Report certified by the City Council on September 2, 2003 in connection with the Amended Comprehensive Development Plan 8 1 -0 1. 2.16 "Entitlemelrts" refets to all existing and future licenses, approvals and permits necessary or incidental to the development of the Project, whether discretionary or ministerial. Entitlements include, but are not limited to, comprehensive development plans, rezones, conditional use permits, tentative and fïnal parcel mapst general plan amendments, site development plans, tentative and final subdivision map approvals, whether st¿nda¡d or vesting, project plans, grading permits, building permits, occupancy permits, actions pursuant to the California Environmental Quality Act, and this Agreement. 2.17 An "Exaction" refers to any fee, requirement, dedication, condition, restriction or limitation imposed by the City upon the development of the Property at any time. 2.18 "Exhibif' refers to an exhibit.to this Agreement as listed in Section3 below. All Exhibits are incorporated by reference as a substantive part of this Agreement. 2.L9 "EË!-gtine Standards" refers to all the laws, statutes, codes, resolutions, policies, regulations and orders of the City affecting the permitted uses of the Property, the density or intensity of use, limits or conhols on the rate, timing or sequence of development, the maximum height and size of proposed buildings, the provisions for reservation and dedication of 5/14/04 10061-2 H&O: #14593 v3 4 land for public purposes, the design, improvement and construction standards for the Project, all as set fórttr in CDP 81-01 and, if not addressed in CDP 81-01, the ordinances, regulations, resolutions, rules urd official policies of the City in effect on the Approval Date, including all Entitlements approved on or before the Approval Date. 2.20 "Fufi¡tg_Law$" refers to all laws, statutes, ordinances, codes, resolutions, policies, rules, regulations and orders of the City enacted after the Approval Date, whether by City Council action, initiative, or otherwise which in any way affect the Project. "Future Laws" include but are not limited to changes to the Existing Standards and amendments to the General Plan. 2.Zl "Future Entitlements" refers to all Project Entitlements, or amendments thereto, approved or adopted by the City after the Approval Date. 2,22 "General Fees" refers to all application fees, processing fees, utility connection fees, inspection fees, and development impact fees (including, but not limited to, general development fees, traffrc impact fees, park fees and such other similar fees as may be enacted from time to time) generally applied throughout the City to development projects or types of development similar to the Project. 2.23 "General Plan" refers to the City's general plan in effect on the Approval Date. 2,24 "MgrtgAgg" refers to the lien of any mortgage, deed of trust, sale- leaseback agreemenf lease, sublease or other transaction under which all or a portion of the Property, including those portions acquired by assignees, is used as security. 2.25 "Mortqagee" refers to the holder of a beneficial interest under a Mortgage or the olryner of any interest in all or any portion of the Property under a Mortgage, including those portions acquired by assignees. 2.26 (elhlige" refers to any written notice or demand between the Parties required or pernritted by this Agreement. 7,27 "@" refers to SJD Partners, Ltd., a Califomia limited partnership. 2.28 The "Parties" refers to the City and Owner and a "Party'' shall refer to either of the Parties. 2.29 "Pfqiegf, refers to the proposed development of the Property pursuant to CDP 81-01, VTTM 15609, VTTM 14196 and the Pacifica San Juan SEIR. 2.3O '*bj@!ru" refers to specific residential and other construction plans which shall include elevations, landscaping and architectural designs and features consistent with CDP 81-01 and other Entitlements. 5lt4/o4 roffit.z H&O: #14593 v3 ) 2.31 The "@¡[y" refers to the real property legally described on Exhibit1A" and depicted on Exhibit "B" to this Agreement. 2-32 The "Reylew_Leltct''refers to the letter to Owner from City authorized by Section 8.4 below. 2.33 "@'refers to those subdivision maps vested or starrdard approved as tentative parcel or tentative subdivision hact maps ptusuant to Califomia Government Code Sections 66410, et seq. (and arry other provision of law relating to subdivision tract or parcel maps), whether before, after, or on the Approval Date. 2.34 The "Tem" refers to the tErm of this Agreement as provided in Section 4.1 below. 3. EXHIBITS. The following Exhibits to this Agreement are incorporated herein by this reference, whether attached hereto o¡ contained in the Technical Appendices: Exhibit "4": Legal Description of the Property Exhibit "B": Map of the Property 4. GENERAL PROVISIOI-IS. 4.1 Term of Aereement. Unless otherwise extended, terminated or modified pursuant to this Agreement, the term of this Agreernent (the "Term") shall coürmence on the Effective Date and shall extend for a period of ten (10) years following the Effective Date. 4.2 Assiprrment. The rights and obligations of Owner wrder this Agreement may be assigned in writing in whole or in part as part of an assignment of all or a portion of the Property. Any assignment shall be subject to the provisions of the Agreement and to the prior written consent of City, which shall not be unreasonably withheld, During the Term, any assignee shall have those rights, benefits and obligations of Owner under this Agreement as expressly assigned with respect to the portion of the Property owned by assignee. Immediately upon delivery by Owner to the Cþ of the assignee's written assumption of Owner's rights and obligations under this Agreement with respect to any portions of the Property being assigned, Owner shall be released from all obligations as to any portions of the Property so assigned. The Property may continue to be subdivided after the Effective Date. Any legal parcel may be assigned for development pursuant to this Agreement. Upon assignment, the obligations with respect to any such parcel shall become several and not joint. As to Owner or other assignees not in Default, the Default of an assignee shall neither constitute a Default, give grounds for termination of this Agreement, nor be a basis for an enforcement action against Owner or any other non-defaulting assignees. 4.3 Amendment or Cancellation of Agreement. This Agreernent may be extended, canceled or amended from time to time by the mutual consent of the Parties, but only sfi4tM t006t,2 H&O; #14593 v3 6 in the manner provided by the Government Code and the City's Ordinances. The "Agreement" shall include any âmendment properly approved and executed. 4.4 Unforeseen Circumstances. If, as a result of facts, events or circumstances presently unknown and unforeseer¡ and which could not have been known or foreseen by the Parties, the City determines in good faith that the immediate physical health and safety of the City necessitate the modification, suspension or termination of the Agreement, the City shall: (i) give Notice to Owner of a. the City's intended action, and b. the reasons and factual basis for the City's determination; (iÐ forward to Owner a minimum of thirty (30) days prior to a public hearing, all documants relating to that determination; (iii) give Notice to Owner at least thirty (30) days prior to the hearing date, ofthe time and place of the hearing; and (iv) hold a City Council hearing on the determination, at which hearing Owner shall havê the right to present witnesses, reports, and oral and written testimony, and further have the right to examine witnesses, City staff, or other persons. The City shall have the obligation, based upon clear and convincing evidence, of establishing that: (Ð the circumstances were unknown and unforeseen and could not have been known or foreseen; (iÐ the immediate physical health or safety of the community require the suspension, modification or termination of the Agreement in contrast to any other alternative; and (iiÐ the City and Owner shall have developed an equitable program to adjust the obligations proportionately to meet the changed circumstances. This provision shall neither limit nor expand the rights or liabilities of either of the Parties with respect to the enforcement of the Agreemenf the reimbursement of costs related to the Project,' or the development of the Property. If the City Council fails to make such findings, then the Agreement shall not be terminated, modified or suspended. The unforeseen circumstances which justiff the suspension, modification or termination of the Agreement shall not include changes in state or federal law. In the event of changes in state or fèderal law, the provisions of Section 4 below shall govern. 5lt4/M too6t.2 H&O: #14593 v3 7 4.5 Enforcement. Unless amended or terminated as provided in Sections 4.3 and 4.4, the Agreement is enforceable by any Party or its assigns, notwithstanding any Future Laws which alter or amend the Existing Standards. 4.6 Rslationshin of tþe Parties. The contractual relationship between the City and Owner arising out of this Agreement is one of independent contractor and not agency. 4.7 Sale to Public: Automatic Termination. The provisions of Section 4.2 requiring prior approval shall not apply to sale or long term lease of individual, finally subdivided lots or parcels to members of the public for their use or occupancy. This Agreeme,nt shall automatically terminate with respect to such lot or parcel upon the occturence of the two following events: (i) sale or long term lease to a member of the public and (ii) issuance of a certificate of occupancy for the building(s) constructed thereon. The provisions of this Section 4.7 shall be selÊexecuting without the necessity of execution or recordation of any further document. 5. CONFLICTS OF LAW. 5.1 Conflict of Çi.ty and State or Federal Laws. If state or federal laws or regulations enacted after the Approval Date (i) prevent compliance with any provision of the Agreement, (ii) require (as opposed to allow) changes in plans, maps or permits approved by the City, and (iii) the federal or state law or regulations are mandatory and controlling, then the Parties shall: 5.1 . I Notice and Copies. Provide the other Party with Notice and a copy of the law or regulation and a statement of the conflict between the law or regulation and the provisions of the Agreement and of the proposed cor¡rse of action of the Party giving the Notice; and 5.1.2 Modification Conference. \Mithin thirty (30) days following the Notice, meet and confer in good faith in a reasonable attempt to modify the Agreement to comply with the law or regulation. 5.1.3 Citv CounqilHearings. Subsequant to the conference referred to in Subsection 5.1.2 above, whether or not the Parties agree on the effect of the law or regulation upon this Agreement, the matter shall be scheduled for hearing before the City Council. Thirty (30) days' written notice of the hearing shall be given pursuant to Government Code Section 65867. The written notice shall identify the proposed modification, suspension or altemate course of action. The City Council, at the hearing, shall determine the exact modification or suspension or alternate course of actior¡ if any, which is necessitated by such law or regulation, At the hearing, Owner shall have the right to offer oral and written testimony. Any modifïcation or suspension of the Agreement or altemate course of action shall be taken only by the affirmative vote of not less than a majority of the authorized number of members of the City Council, ând shall be subject to judiciat review in conformance with Section 9.5 below. 5/r4/M 1006t.2 H&O:#14593 v3 I 5.2 Cooperation in Secwine Permits. The City shall assist CIwner in the securing of any permits, Íncluding permits from other public agencies, which may be required as a result of the modifications, suspensions or altemate course of action. 6. pEVELOPMENT OF THE BROPERTY. 6.1 Permitted Uses. Subject to Sections 4 and 5 above, during the Term, the rules, regulations and ofñcial policies goveming the permitted uses of the Propert¡ the density or intensity of use, the timing and phasing of development of the Project, the mærimum height and size of proposed buildings, the provisions for reseruation or dedication of land for public purposes, and the design, improvement and construction standards for the Project shall be only those set forth in this Agreernent, CDP 81-01, and the Entitlements. In the event of any inconsistencies, the provisions of CDP 81-01 and Entitlements shall prevail over all other Existing Standards and this Agreement. All future amendments of CDP 8l-01 and Entitlements which are approved by the City Council and Owner shall be deemed consistent with this Agreønent. 6.2 Future Laws. Future Laws shall not apply to the Property or the Project except as expressly provided in this Agreement or expressly required as opposed to permitted by State or fþderal law. 6.3 Future Discretionarv Reviews. Owner's applications for Future Entitlements shall comply with all applicable procedural rules and regulations, the Comprehensive Development Plan 81-01, the Entitlements, and this Agreement. The City shall not impose any conditions upon any Future Entitlement which are more restrictive than or inconsistent with the Existing Standards and Entitlements, except as expressly provided in this Agreement and as expressly required as opposed to ro$led by state or federal law. In reviewing Future Entitlements, the City may impose only those conditions and require only those dedications and reservations of land which artr necessary to implement the express terms of the Comprehensive Development Plan 81-01 and the Entitlements. This Agreement is not intended to prevent the City from exercising its discretionary rights with respect to Future Entitlements, as they exist as of the Approval Date, including, but not limited to, discretionary review of site development plans provided such discretionary rights are exercised in good faith and not in a mfflner inconsistent with the Existing Standards, Entitlements and this Agreement. 6.3.1 Proiect EIR. The Parties intend that the Pacifica San Juan SEIR shall be the project EIR for all Entitlements and Future Entitlements for the Project, and no future environmental impact reports are required. Notrvittrstanding the foregoing, the City may conduct, if legally required in accordance with CEQA and the Existing Standards, an environmental review of Future Entitlements. The City may impose, if legally required by CEQA, additional reasonable and customary mitigation measures to mitigate significânt adverse environmental effects which were riot prevíously considered at the time of approval of CDP 81-01, the SEIR andl/or the Entitlements. 6.3.2 Open Soace Dedication. The open space slope area northeast of the Country Residential area will be offered for dedication and accepted or otherwise transferred 5/r4l04 10061.2 H&O: #14593 v3 I in fee to the City as a lette¡ed lot in a final tract map. This lot is separate and exclusive from the improved portion of the lettered catchment area (Lot O). This lot shall be described by a metes and bounds description prepared by developer and approved by City. This dedication, acceptance and/or fransfer shall occur at the earliest reasonable opportunity subject to Owner's rights or needs to undertake grading and/or construction activities on said propedy, which permissions will not be withheld or delayed by the City. An additional lettered lot ("Lot B") constituting the catchment area of the Project will be transferred by grant deed to the applicable homeowners association with the CC&Rs reflecting that Lot B is a common area With respect to other open sprice areas, open space easemürts shall be conveyed to the City limiting use and development of such areas and any structures, fences or other improvements, except as provided below, so as to preserve its general natural character. Fee title is to remain with individual property o\Mnsrs or the homeowners association. Repair and maintenance of said open space areas shall be the responsibility of the homeowners association, provided however, Owner shall have the option of including the repair and maintenance of said open space areas within a Landscape and Lighting Districf which will relieve the homeowners association of such responsibilities. The Parties acknowledge that various public facility and/or utility €âsements, including, but not limited to, sheets, trails, water lines, sewer lines, telephone, gas, electric, storm drain facilities and similar infrastructure, will cross or affect the open space ârer¡s subject to review and approval by Cify. 6.4 Application of Subsequentlv Enacted Rules. Relations. Etc. Subject to Section 6.3, Future Laws may be applied to the Project only if they are not in conflict with or more restrictive than the Existing Stândmds and will not prevent, hinder, delay or financially impact development of the Property according to CDP 8l-01 and Entitlements and in the time frame desired by Owner. Provided, however, the City may apply future changes to the uniform codes such as the Uniform Building Code, Uniform Electrical Code and Uniform Mechanical, Plumbing and Fire Codes which changes are based on recommendations of a multi-state professional organization and enacted by the City, provided such changes are related to matters of public health and safety. 6.5 Priority Processing. Subject to applicable laws regulating the processing time frames for Future Entitlements, City shall use its best efforts to expeditiously process Future Entitlements, including plan check processing to rçview plans and provide a corrections list to Owner within ten (10) days of submittal. Additionally, the City shall use its best efforts to expeditiously process and conclude any necessary proceedings in eminent domain and obtain orders of immediate possession. 6.6 Time For Construction and Completion of Project. Owner and Çity cannot predict when or the rate or the order in which the Private Improvements will be developed" if at all, Such decisions depend upon numerous factors which a¡e not within the control of Owner, such as market orientation and demand, interest rates, abso¡ption, completion, and other similar factors. Therefore, Owner may develop the Project at the rate deemed appropriate in Owner's subjective business analysis. However, the residential building permit allocation plan shall be govemed by Section 6.7 hereinafter. Notwithstanding the California Supreme Court decisíon in Pardee Construction Co, v. City of Camarillo. 37 Ca1.3d 465 (1984), the Parties' emphasize it is the intention and purpose of this Agreement that Owner shall have 5/14t04 t0061.2 H&O: #14593 v3 10 the right to develop the Project at such rate, and at such times as Owner deems appropriate. It is the intent of the parties hereto that no moratorium or other limitation (whether relating to the rate, timing or sequencing of the development or construction of all or any part of the Project and whether enacted by initiative or othen'*'ise) affecting parcel or subdivision maps (whether tentative, vesting tentative or final), building permits, occupancy certifìcates or other entitlements for use approved, issued or granted within City, or any portion thereof, shall apply to the Project to the extent such moratorium or other limitation is inconsistent or in conflict with this Agreement. 6.7 Residential Buildine Permit Allocltlion Plan. City has by the adoption of Resolution #03-03-18-0 established an annual allocation of dwelling units for Ûwner's project consisting of up to 282 dwelling units in year 2005 and 134 dwelling units in year 2006. This allocation authorizes the issuance of building permits for these dwelling units during the above stated calendar years. Notwithstanding Municipal Code Section 9-2.325, City hereby authorizes Owner, or its successors in interest, as a matter of right to obtain building permíts for those allocated dwelling units which are not actually constructed during years 2005 and 2006, in successive years on an as needed basis. 6.8 Certificate of Comn]etion. If requested by Owner or any Mortgagee after City's formal approval of any stage or portion of developmènt of the Project, City shall provide Owner with an instrument certifying completion. The certification is a conclusive determination that the obligations of Ovrner under the Agreernent with respect to the stage or portion of development so described has been met. The certification shall be in recordable form. Such Certificate of Completion is not a notice of completion as refered to in California Civil Section 3093. 6.9 Tentative Subdivisiçn Maps. Subject to proceeding in compliance with state and local law, including holding public hearings and making any required findings, the City shall expeditiously process Tentative Subdivision Maps applied for by Owner if those applications comply with Existing Standards including the City's subdivision ordinances in effect on the Approval Date. The City shall extend through the Term (pursuant to Govemment Code Section66452.6) all Tentative Subdivision Maps associated with the Project. 6.10 Cooperation in Securing Government PermitslConflict of Laws. The City shall cooperate with Owner in submitting information which may be required by any other governmental agency in order to develop the Project in accordance with this Agreement. Owner will reimburse City for all reasonable costs incurred in providing such assistance. 6.1I Mass Gradins Authodzed Followine Tentative Map. The mass grading of the Project, pursuant to an approved grading plan permit, may commence, at Owner's election, following approval of a tentative subdivision map. 7. PUBLIC IMPROVEMENTS PROGRAM 7.1 Responsibilitv for Public Improvements. The Owner shall construct the on-site public improvernents and construct or contribute the Project's pro-rata sha¡e of the off- 5/14t04 tffi61.2 H&O: #14593 v3 11 site public improvements afi required by the findings and conditions of CDP 81-01, \¡TTM 15609, VTTM 14196 and the SEIR. 7.2 Acquisitior¡/Condemnatiot of Off-Site P.Joperty. If the City is unable or unwilling to acquire or condemn any necessary ofT-site property, rights of way, or easements per Government Code Section 66462,5, then, in accordance with said provision, the condition shall be conclusively deemed waived. Such acquisition/condemnation shall be at Owner's expensÊ, including attomeys' fees and court costs. 7.3 Phasine of PubJic Improvements. Although Owner may deterrrine the timing of development of the Project as provided in Section 6.6 above, the Public Improvements may be completed in one or more phases as outlined above and as required to sen¡e the particular increment of development represented by each final map. 7.4 Imnrovçr-rents Scheduline. Dates or times of performance by either Pany may be subject to revision from time to time due to economic conditions and other causes rls mutually agreed to by the Parties in writing. Such revisions are deemed to be within the frarnework of the Agreement and do not constitute amendments to the Agreement. 7.5 Financine for Public Improvemsnts. From time to time, Owner may propose to City use ofpublic district financing, including but not limited to, community facilities districts, assessment districts, or other bonded indebtedness programs to facilitate the construction or acquisition of Public hnprovements to be constnrcted and fïnanced by the Project. City agrees to consider such proposals, if made, under its Existing Standards in good faith. Nothing herein shall be deemed to preclude the use of public financing techniques reasonably acceptable to Owner and City. 7.6 ËqWe-r. Ç_qDacitV. In further consideration of the mutual obligations contained herein, City agrees to use its best efforts to assure the availability of sufficient sewer capacity for construction, development and occupancy of the Property consistent with this Agreemant. 8. ANNUAL REVIE\ry. 8.1 City and Owner Responsibilities. At least every twelve (12) months during the term of this Agreement, City shall review the extent of good faith substantial compliance by Owner with the terms of this Agreement (the "Annual Review"). At the conclusion of the Armual Review, the City's finding of good faith compliance by Owner with the terms of the Agreement shall be conclusive up to the date of such finding for the purposes of future Annual Reviews or legal action between the Parties. Pursuant to Government Code Section 65865.1, as amended, and applicable City Ordinances, Owner shall have the duty to demonstrate its good faith compliance with the terms of the Agreement at the A¡rnual Review. The Parties recognize that the Agreement could be deemed to contain thousands of requirements (i.e., consûrction standards, landscape standards, etc.) and that evidence of each and every requirement would be a wasteful exercise of the Parties' resources. Accordingly, Owner shall be deemed to have satisfied its duty of demonstration when it presents evidence of its good faith and 5lt4lo4 l006t.2 H&O: #14593 v3 12 substantial compliance with the major provisions of Sections 7 and I of this Agreement, including information conceming the use, numbers, t¡pes, densities, heights and sizes of structu¡es completed and of any reservations and dedications to City. Substantial compliance sh¿ll be defined as meeting the intent of the Parties with respect to the obligations of the Agreement. Either Party may address any requirements of the Agreement during the Annual Review. However, fifteen (15) days' prior written Notice of any requirement to be addressed shall be made by the requesting Party. If, at the time of revievr', an issue not previously identified in writing is required to be addressed, the review shall be continued at the request of either Party to afford sufficient time for analysis and preparation of a response. 8.2 OonortUnity to be Heard. Owner shall be permitted an opportunity to be heard orally and in writing at arry noticed public hearing regarding its performance under the Agreement. Owner shall be heard before each appropriate commission and the Cþ Council at any required public hearing conceming a review of performance under the Agreement. 8.3 Info.tglg,Jipr-r to be Provided to Owner. City shall mail to Owner a copy of staff røports and related exhibits concerning Agreement performance a minimum of ten (10) calendar days prior to consideration and review by the City Council in the manner set forth in Govemment Code Sections 65865, 65867 and 65868, as amended. 8.4 Review I-,ptter. If Owner is found to be in compliance with the Agreement after the Annual Review, City shall issue, upon written request by Owner, a letter to Owner (the "Review Letter") stating that, based upon information known or made known to the City Council, the City Planning Commission, and/or the Cify Manager, the Agreement remains in effect and Owner is not in Default. Owner may record the Review Letter in the Official Records of the County of Orange. 8,5 Estoppel Certificates. Either party may at any time, and from time to time, deliver written Notice to the other Party requesting that the other Party certify in writing that to the knowledge of the certifying Party: (Ð The Agreeme,nt is in full force and effect and is a binding obligation of the Parties. (iD The Agreønent has not been amended or modified either orally or in writing or, if so amended, identifying the amendments. (iii) No Default in the performance of the requesting Party's obligations under the Agreement exists or, if in Default, the nature and amount of any Default. A Party receiving a request under this provision shall execute and return a certificate within thitty (30) days following receipt of the request. The Director shall have the right to execute any certificate requested by Owner on behalf of City. A certificate given pursuant to this Section 8.5 may be relied on by assignees and Mortgagees. 5^4/04 10061.2 H&O: #14593 v3 13 8.6 Failure of Periodic Review. City's failure to review at least annually Owner's compliance with the terms and conditions of this Agreement shall not constitute or be asserted by City as an Owner Default. 9. ENFORCED DELAY. DEFAULT. REMEDIES AND TERMINATION. 9.1 General Provisions. Failure or uffeasonable delay by either Party to perform any term or provision of this Agreement for a period of thirty (30) days after written notice thereof from the other Party shall constitute a default under this Agreement, subject to extensions of time by mutual consent in writing. Said notice shall speci$ the nature of the alleged default and the manner in which said default may be satisfactorily cured. If the nature of the alleged default is such that it carurot reasonably be cured within such 30-day period, the commencement of the cure within such time period and the diligent prosecution to completion of the cure shall be deemed a cure within such period. Subject to the foregoing, after notice and expiration of the 30-day period without cure, the other Party to this Agreemant, at its option, may institute legal proceedings pursuant to this Agreement and/or give notice of intent to terminate this Agreement pursuant to Government Code Section 65868. Following such notice of intent to terminate, the matter shall be scheduled for consideration and review by the City Council within thirty (30) calendar days in the manner set forth in Government Code Sections 65865,65867 and 65868. Following consideration of the evidence presented in said review before the City Council, the Party alleging the default by the other Parfy may give written notice of termination of this Agreement to the other Party. 9.2 Default by Citv. In the event City does not accept, review, approve or issue necessary development permits, entitlements, or other land use or building approvals for use in a timely fashion as provided in this Agreernent, or as otherwise agreed to by the Parties, or the City othenvise defaults under the terms of this Agreement, Owner shall have the right to rescind this Agreement or, in the alternative, seek specific performance, without any right to monetary damages; provided, however, that to the extent that the actions of City constituting a default deprive Owner of the benefit of improvements for which assessments or special taxes have been levied on the Property, Owner may be entitled to a ftrll or partial refund or relief from such assessments or special taxes. 9.3 Snecific Performance Remedy. Due to the size, nature and scope of the Project, it will not be practical or possible to restore the Property to its natural condition once implementation of this Agreement has begun. After such implementation, Owner may be foreclosed from other choices it may have had to utilize the Property and provide for other benefits. Owner has invested significant time and resources and performed extensive planning and processing of the Project in agreeing to the tenms of this Agreement and will be investing even more signihcant time and resources in implementing the Project in reliance upon the terrrs of this Agreement, and it is not possible to determine the sum of money which would adequately compensate Owner for such efforts. In addition, City and Owner agree that, except as provided in Section 9.6, monetary damages âre not available if City fails to carry out its obligations under this Agreement. Therefore, specific performance of this Agreement is the only remedy which would compensate Owner if City fails to carry out its obligations under this .A,greement, and City sn4l04 1ffi61.2 H&O: #14593 v3 t4 hereby agrees that ûwner shall be entitled to specific performance in the event of a default by City hereunder. 9.4 Enforcq.d Delav. Extension of Time of Performance. Neither Party shall be deemed to be in Default where delays or Defaults are due to war, insurrection, strikÊs, walkouts, riots, floods, earthquakes, fires, casualties, acts of nature, unavailability of materials, governmental restrictions imposed or mandated by governmental entities, suspension of rights in accordance with the existenee of unforeseen circumstances, litigation, or similar reasons for excused performance. An extension shall cornmence to run from time of commencement of the cause ofthe delay. 9.5 Institution of Lesal Action. In addition to any other rights or remedies, either Party may institute legal action to cure, correct or remedy any Default, to enforce any provision of this Agreement, to enjoin any threatened or attempted violation of this Agreement, or to obtain any remedies consistent with the purpose of this Agreement. Legal actions shall be instituted in the Superior Court of the County of Orange, State of California, or in the Federal District Court in the Central District of California. 9.6 Applicable LawslAttornev's Fees. The Agreement shall be construcd and enforced in accordance with the laws of the State of California. All statutory references are to California statutes. Should any action between the Parties be brought in any court of competent jurisdiction arising out of or in cormection with the Agreement, the prevailing Party in the action shall be entitled to recover reasonable attomey's fees, court costs, and necessary disbursements in connection with this litigation. 9.7 l$q \traiver of Existine Rights or Applicable_.Laws. This Agreement is not intended to require Owner to accept or commit to any existing or future Exaction, which could not lawfully have been imposed by the City without entering into this ^Agreement. This Agreement shall neither limit nor expand: (i) GeneErl Fees: Owner's right to challenge any General Fee as being contrary to applicable law; (iD Existing Subdivision Maps: Owner's rights under any Existing SuMivision Map, Comprehensive Development Plan, Entitlement, or Future Entitlement; or (iii) Exactions: Owner's right to challenge any existing or ñrture Exaction as being in excess of Exactions permitted by applicable law or by this Agreement. IO. ENCTIMBRANICES AND RELEASES ON PROPERTY, l0.l Discretion to Encumber. The Agreement shall not prevent or limit Owner, in any m¿ürner, at Owner's sole discretion, from encumbering the Property or any portion of the Property or ¿rny improvement on the Property by any Mortgage. City acknowledges that lenders providing financing may require modifications to the Agteement and City agrees, upon request, sltqa4 10Éót.2 H&O: #14593 v3 15 from time to time, to meet with Owner and/or representatives of lenders to negotiate in good faith any lender request for modification. City agrees to not withhold unreasonably its consent to any lender requested modification to the Agreernent. 10.2 Entitlement to rWritten Notice of Default. Any Mortgagee and its successors and assigns, upon written request to City, shall be entitled to receive from City written Notice of any Owner Default at the same time Owner is provided with Notice pursuant to Section 8.4 above. 10.3 Property Subiect to Pro Rata Claims. Any person or entity who comes into possession of any portion of the Property pursuant to foreclosure of a Mortgage or deed in lieu of foreclosure, shall take possessior¡, on an average pro rata basis, subject to claims for payments or charges established by the Agreement against the Property and which accrue prior to the time the person or entity comes into possession. 1I. MISCELLANEOUSPROVISIONS. ll.t Rules of Construction. The singular includes the plural; the masculine gender includes the feminine; "shall" is mandatory; "may''is permissive. 1L.2 Severability. If any non-material provision of the Agreernent shall be adjudged by a court of competent jurisdiction to be invalid, void or illegal, it shall in no way affect, impair or invalidate any other provision of the Agreement. In the event a material part of the Agreernent is adjudged by a court of competent jurisdiction to be invalid, void or illegal, the entire Agreement is deemed to be unenforceable or void. For purposes of this Section 11.2, all provisions of Section 6 are deemed to be a "material part" of the Agreement. If any portion of the Agreement is adjudged to be unenforceable, that portion shall be deemed to be a statement of intention by the Parties and the Parties shall take all steps necessa¡y to make valid the Agreement or that portion which is adjudged to bE unenforceable. ll.3 Entire Aseement. Waiyers. -and Amendments. This Agreement constitutes the entire understanding and agreement of the Parties with respect to the subject matter of this Agreement. This Agreement supersedes all negotiations and previous agreemerrts between the Parties with respect to that subject matter. All waivers of the provisions of this Agreement must be in writing and signed by the appropriate agents of City or of Owner. All amendments to this Agreement must be in writing signed by the appropriate agents of City and Owner, in a form suitable for recording in the Official Records of Orange County, Califomia. \Mithin ten (10) days following the Effective Date, a copy of this Agreement shall be recorded in the Ofñcial Records of Orange County, Califomia, Upon the completion of performance of this Agreement or its revocation or tennination, a statement evidencing completion, revocation or termination signed by the appropriate agents of Owner and City shall be recorded in the Official Records of Orange County, California. 11'4 Pro.iect as a Private Undertaking, It is specifically understood by the Parties that: (a) the Project is a private development; (b) City has no interest in or responsibilities for or duty to third parties concerning any Private Improvements to the Property; s/14/o4 10061.2 H&O: #14593 vl 16 and (c) Owner shall have the full porwer and exclusive control of the Property subject to the obligations of Owner set forth in the Agreefüent. 11.5 lncomoration of Recitals. The Recitals set forth in this Agreement are part of this Agreement. 11.6 Captions. The captions of this Agreement are for convenience and reference only and shall not define, explain, modifu, construe, limit, amplify or aid in the interpretation, construction or meaning of any of the provisions of this Agreement. I 1.7 Consent. Where the consent or approvâl of a Party is required in or necessary under this Agreement, the consent or approval shall not be un¡easonably withheld. 11.8 Covenant of Good Faith and Fair Dealing, Neither Party shall do anything which shall have the effect of harming or injuring the right of the other Party to receive the benefits of this Agreernent. Each Party shall refrain from doing anything which would render its performance under this Agreement impossible. Each Party shall do everything which this Agreement contemplates that such Party shall do to accomplish the objectives and purposes of this Agreement. I1.9 Covenant of Cooperation. The Parties shall cooperate with and assist each other in the performance of the provisions of this Agreement, including assistance in obtaining perrnits for the development of the Properry which may be required from public agencies other than City. Owner reserves the right to challenge any ordinance, measure, moratorium or other limit¿tion in a court of law if it becomes necessa¡y to protect the development rights vested in the Property pursuant to this Agreement. 11.10 Further Actio4s and.Instrumants. Each of the Parties shall cooperate with and provide reasonable assistance to the other to the extent contemplated in the performance of all obligations under this Agreement and the satisfaction of the conditions of this Agreement. Upon the request of either P*y, the other Party shall promptly execute, with aclårowledgment or affidavit if reasonably required, and file or record such required instruments and writings and take any actions as may be reasonably necessary under the terms of this Agreement to carry out the intent and to fulfill the provisions of this Agreement or to evidence or consuütmate the transactions contemplated by this Agreement. 11.1 1 Operating Memo{anda. and.A$Slrdments. The Parties acknowledge that the passage of time may demonstrate that changes are necessary or appropriate with respect to the details of each Party's performance under this Agreement. Because the parties desire to retain a certain degree of flexibility with respect to the details of each Party's performance pursuant to this Agreement, if and when the parties find that changes ar€ necessary or appropriate, they will, unless otherwise required by law, effectuate such changes or adjustnents through operating memoranda approved by the Owner and by the Ptanning Director on behalf of the City. Each such operating memorandum wilt be attached hereto as an addendum and become a part hereof, and may be further changed from time to time as necessary or appropriate, as provided in this Section. No such operating memorandum will be deemed to be an amendment 5/l{04 10061.2 H&O: #14593 v3 l7 of this Agreement under Govemment Code Section 65868 and unless otherwise required by law, no such operating memorandum will require prior notice or hearing. Notwithstanding the foregoing, the following matters will not be considered as appropriate subjects of operating memoranda" but will be considered substantive amendments which must be reviewed by the Planning Commission of the City and approved by the City Council. I l. I 1.1 Alteration of Permitted Uses. Alteration of the permitted uses of the Property except to the extent permitted by this Agreement or the Comprehensive Development Plan. 1 1.1 1.2 [rcrease in Dernitv or Intensity. Increase in the density or intensity of use or number of buildable lots except to the extent permitted by this Agreement or cDP 81-01. 11.t1.3 Increase in Heieht and $i?e. Increase in the maximum height and size of permitted buildings except to the extent permitted by this Agreement or cDP 81-01. 1l.ll.4 Deletion of _Reservation Requirernents. Deletion of a requirement for the reservation or dedication of land for public purposes, except for minor boundary adjustments approved by the Community Developrnent Director of the City and except to the extent permitted by this Agreement or the Comprehensive Deveþment Plan. 11.12 Successors and Assims. Subject to Section 4.2, the bwdens of this Agreement shall be binding upon, and the benefits of the Agreement inure to, all successors-in- interest and assigns of the Parties. 11.13 Notices. All Notices between the Parties pusuant to this Agreement shall be in writing and shall be given by personal delivery (including Federal Express or other similar commercial overnight delivery services providing acknowledgments of receipt), by U.S. Postal Selice registered mail, or by telegram to the addresses set forth below. Receipt shall be deemed cornplete as follows: (Ð Forpersonal delivery, upon actual receipt; (ii) For U.S. Postal Service registered, certified, or express mail, upon the delivery date or attempted delivery date as shown on the return receipt; and (iiÐ For telegram, upon the hansmission of the telegram. Notices shall be addressed as follows: To the City: City Clerk/City Manager City of San Juan Capistrano 32400 Paseo Adelanto San Juan Capistrano, CA 92675 5114t04 10061.2 H&O: #14593 v3 18 To Owner SJD Partners, Ltd. c/o SunCal Companies 2392 Morse Avenue Irvine, CA 92614 Attention: Bruce Elieff and Dennis D. O'Neil, Esq. Hewitt & O'Neil LLP 19900 MacArthur Blvd,, Suite 1050 Irvine, CA 92612 The addresses to which Notices shall be sent may be changed by giving written notice of change of address in the manner set forth above. ll.l4 Recordine. The City Clerk shall cause a copy of the Agreernent to be recorded with the Office of the County Recorde¡ of Orange County, Califomia within ten (10) days following the Effective Date. I t.ls Effestive Date. This Agreement shall not take effect and no rights or obligations contained herein shall vest or inure to the benefit of any Party hereto until the Effective Date of the ordinance specified in Section 1.7 of this Agreement pursuant to Govemment Code Section 65867.5 and the completion of any referendum process initiated thereunder. I S i gnature pa ge foll ow d 5t14104 tffi61.2 H&Or #14593 v3 19 This Agreement has been executed by the Parties as of the date set forth next to their respective signatures. ..CITY'' CITY OF AN By: Joe Mayor ATTEST p ,ú,* City Clerk I HEREBY APPROVE the form of the foregoing Agreement. John CityAttorney "oWNER" SJD PARTNERS, LTD., a Califomia limited partnership By: SJD Development Corp., a Califomia corporation, General Pa¡tner By: Bruce Elieff Signatures To Be Notarized by Public Notary íilUOA lOMt.2 H&O: #14593 v3 2Q ù lr'ALL PURPOSE ACKNOWLEDGMENT STATE OF CALIFORNIA COUNTY OF ORANGE On May 14th, 2004 before me, Tracie Thompson, e Notery Public, personally appeared Bruce Élieff, personally known to me ( ) the personþ) whose nameþ) is/are-subscribed to the within instrument and acknowledged to me that herÊh€lth€y executed the same in his&erJth€i+ authorized câpecity({€s} an that by his/herJthel+ signature(e) on the instrument the personþ}, or the entity upon behalf of which fie personþ) acted, exêcutsd the insFument. WITNESS my hand and officíal seal. THIS CERTIFICATE MUST Agreement for Paclflca San Pages: ffi TRACIE THOMPSON Commision # 1383422 Notory Publtc - Collfornlo Oronge County W Corrm. Epieslrlov 5 ã10ó sis (NOTARY SEAL) ATTENTION NOTARY: Although the informalion requêstsd below is OPTIONAL, it could prêvent fraudulent attachmenl of thls certificate to another document. BE ATTACHED TO Title of Document Type: Amendment & Reinstatement of Development Juan Project, SJD Partners, Ltd. THE DOCUMENT DESCRIBED AT RIGHT is 20 Signer(s)Other Than Named Above nla Page 21 t PUBLIC AGENCY FORM OF ACKNOWLEDGEMENT State of California ) County of Orange ) ss. City of San Juan Capistrano ) (Gov't Code 40814 & Civil Code 1181) On June 15, 2004 before me, Margaret R..Monahan. Cilv Cle¡k, personally appeared Joe $oto personally known to me to be the person whose name is subscribed to the within instrument and acknowledged to me that he executed the same in his authorized capacity, and that by his signature on the instrument the person, or the entity upon behalf of which the person acted, executed the instrument. (SEAL) ÌñIITNESS my hand and official seal Monahan, City Clerk Capacity Claimed by Signers Mayor Title Signers are Representing City of San Juan Capistrano Þescription of Attached l)ocument Amendment & Restatement of Development Agrcement for the Pacifica San Juan Project.... OPTIONAL q Page 22 PC RESOLUTION NO. 16-04-26-02 AMENDED DEVELOPMENT AGREEMENT A RESOLUTION OF THE PLANNING COMMISSION OF THE CITY OF SAN JUAN CAPISTRANO RECOMMENDING APPROVAL OF AN AMENDMENT TO THE AMENDED AND RESTATED DEVELOPMENT AGREEMENT FOR THE PACIFIC SAN JUAN PROJECT BETWEEN THE CITY OF SAN JUAN CAPISTRANO AND PACIFIC POINT DEVELOPMENT PARTNERS, LLC EXTENDING THE TERM OF THE AGREEMENT FROM JANUARY 16, 2017, TO JANUARY 1 6, 2022, FOR AN APPROVED 257-ACRE TRACT TO BE DEVELOPED WITH 416 DWELLING UNITS SUBJECT TO CoMPREHENS|VE DEVELOPMENT PLAN (CDP) 81-01, FORSTER CANYON (APPLICANT: PACIFIC POINT DEVELOPMENT PARTNERS, LLC). WHEREAS, Pacific Point Development, LLC (PPDP) has requested approval of an amendment to the Amended and Restated Development Agreement in the document entitled, "Amendment to the Amendment and Restatement of DevelopmentAgreement for the Pacifica San Juan Project between the City of San Juan Capistrano and PPDP"; and WHEREAS, on July 2, 2002, the City Council adopted Resolution 02-07-02-05 approving an extension of the 1992 Development Agreement extending the term of that agreement to November 6, 2005; and WHEREAS, on September 16, 2003, the City Counciladopted Resolution 03-09-16- 02 conditionally approving amendments to Comprehensive Development Plan (CDP) 81-02, Forster Canyon, and conditionally approving Tentative Tract Map (TTM) 15609, Pacifica San Juan, for a portion of the Forster Canyon Planned Community; and WHEREAS, on June 15, 2004, the City Council approved the Amended and Restated Development Agreement effective July 16,2004, through July 16,2014. The extension was to allow completion of the construction of the approved residential units and completion of the planned public improvements serving the development; and WHEREAS, on May 6, 2014, the City Council approved a term extension to the Amended and Restated Development Agreement effective through January 16,2017; and WHEREAS, on May 5, 2015, the City Council approved the assignment and assumption agreement between LV Pacific Point LLC and Pacific Point Development Partners, LLC; and WHEREAS, the potential environmental impacts of the proposed amendment to the Amended and Restated Development Agreement have been previously addressed in full compliance with the provisions of the California Environmental Quality Act (CEQA) and its Guidelines, and no further environmental analysis is required prior to the approval of the proposed amendment because: 1 ATTACHMENT 4 a) The environmental impacts of the Pacifica San Juan project have been fully analyzed by the Pacific Point Final Environmental lmpact Report ("ElR')certified by the City Council on August 1 , 1991 , and by the Pacifica San Juan Supplemental EIR certified by the City Council on September 2,2003, b) The proposed amendment does not propose any change in the previously approved project or any change which could potentially result in either a direct or indirect physical change in the environment, the proposed amendment will not result in new, potentially significant environmental effects, and c) None of the conditions described in CEQA Guidelines Sections 15162, 15163, or 15164 which would call for the preparation of a Subsequent or Supplemental ElR, or an EIR Addendum, would occur as a result of the proposed amendment; and, WHEREAS, on April26, 2016, the Planning Commission conducted a duly noticed public hearing pursuant to the provisions of Section 9-2.3302 of Title 9, Land Use Code, Administrative Policy 409, and Planning Department Policy 510 to consider public testimony on the proposed project. NOW, THEREFORE, BE lT RESOLVED, thatthe Planning Commission of the City of San Juan Capistrano hereby makes the following findings: SECTION 1. Recitals. The above recitations are true and correct and are adopted as the findings of the Planning Commission. SECTION 2. Aqreement. Findings for Amendment to Amended and Restated Development 1. The proposed 60-month time extension for the Amended and Restated Development Agreement provides for the continued development of Pacifica San Juan consistent with the City's General Plan and as approved by the City Council, 2. The proposed amendment makes no other changes to the 2004 Amended and Restated Development Agreement and is consistent with the General Plan Public Services Element because the project includes provisions for addressing project-related capital facility impacts to the city's infrastructure. 3. The proposed amendment is consistent with the Comprehensive Development Plan (CDP) 81-02, Forster Canyon, because the extension would not materially change or expand the scope of the development allowable under the original project approvals and the current DevelopmentAgreement and the project site. 4. Extending the Amended and Restated Development Agreement is in the public interest because the applicant has made significant progress to finish the project and has adequately demonstrated its commitment to fulfill all project obligations and complete development of the project over the course of the next five years, 2 and complete development of the project over the course of the next five years, and by not allowing the extension would jeopardize the completion of many on and off-site improvements that are beneficial to not only the existing residents within Pacifica San Juan, but the general public as well. 5. The proposed amendment to the Amended and Restated Development Agreement is authorized and consistentwith the provisions of Government Code Sections 65864 through 65869.5 and related City ordinances and policies. NOW, THEREFORE, BE lT FURTHER RESOLVED, that the Planning Commission of the City of San Juan Capistrano hereby recommends that the City Council of the City of San Juan Capistrano find that the amendment to the Amended and Restated Development Agreement is not subject to CEQA because it is not a "project" as defined in Title 14, California Code of Regulations, Section 15378. NOW, THEREFORE, BE lT FURTHER RESOLVED, thatthe Planning Commission of the City of San Juan Capistrano hereby recommends that the City Council of the City of San Juan Capistrano approve, via ordinance, the Amendment to the Development Agreement, as provided in Exhibit A, "Amendment to the Amended and Restated Development Agreement for the Pacifica San Juan Project between the City of San Juan Capistrano and Pacific Point Development Partners, LLC,' attached hereto and incorporated hereín. PASSED, APPROVED, AND ADOPTED this 26th day of April,2016, by the following vote, to wit: rman Sergio , AICP, Assistant Director Secretary M 3 Exhibit "A" [Proposed Amendment to Amended and Restated Development Agreement for the Pacific San Juan Project Between the City of San Juan Capistrano and Pacific Point Development Partnersl 4