Ordinance Number 898ORDINANCE NO. 898
AN ORDINANCE OF THE CITY OF SAN JUAN CAPISTRANO,
CALIFORNIA, APPROVING AND ADOPTING A DEVELOPMENT
AGREEMENT FOR THE HONEYMAN RANCH -RANCHO MADRINA
PROJECT (WILLIAM LYON COMPANY, INC.)
The City Council of the City of San Juan Capistrano hereby ordains as follows:
SECTION 1. Recitals & Findings
William Lyon Homes, Inc. has requested approval of a Development Agreement,
entitled "Development Agreement for the Rancho Madrina (formerly "Honeyman
Ranch") Project Between the City of San Juan Capistrano and William Lyon
Homes, Inc."; and,
2. On June 3, 2003, the City Council adopted Resolution 03-06-03-01 conditionally
approving Tentative Tract Map 16221, Honeyman Ranch and enacted Ordinance
882, adopting Comprehensive Development Plan (CDP) 01-01, Honeyman
Ranch Planned Community; and,
3. The City's Environmental Administrator has previously required preparation of an
environmental impact report and on May 20, 2003, the City Council certified the
Final Environmental Impact Report for Tentative Tract Map (TTM) 16221,
Honeyman Ranch, and all project -related impacts have been previously
disclosed and adequately mitigated, and the City has otherwise complied with all
applicable provisions of the California Environmental Quality Act; and,
4. The Planning Commission conducted a duly -noticed public hearing on November
9, 2004 pursuant to the provisions of Section 9-2.335 of the Title 9, Land Use
Code, Administrative Policy 409, and Planning Department Policy 510 to
consider public testimony on the proposed project.
Minor modifications to Tentative Tract
(Rancho Madrina) were administratively
October 17, 2003 and reduced the total
to 119 lots; and,
Map (TTM) 16221, Honeyman Ranch
approved by the Planning Director on
number of residential lots from 124 lots
6. The City Council now finds it appropriate to establish a development agreement
by reason of Capistrano Unified School District (CUSD) need to provide capital
funding for planned public school expansion and construction; and,
SECTION 2. Amendment.
Pursuant to Government Code sections 65864 et seq., the City Council does
hereby approve and adopt the "DEVELOPMENT AGREEMENT FOR THE RANCHO
01-05-20005
MADRINA PROJECT BETWEEN THE CITY OF SAN JUAN CAPISTRANO AND
WILLIAM LYON HOMES, INC.", 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 3. Effective Date.
This Ordinance shall take effect and be in force thirty (30) days after its passage
SECTION 4. City Clerk's Certification
The City Clerk shall certify to the adoption of this Ordinance and cause the same
to be posted at the duly designated posting places within the City and published once
within fifteen (15) days after passage and adoption as required by law; or, in the
alternative, the City Clerk may cause to be published a summary of this Ordinance and
a certified copy of the text of this Ordinance shall be posted in the Office of the City
Clerk five (5) days prior to the date of adoption of this Ordinance; and, within fifteen (15)
days after adoption, the City Clerk shall cause to be published the aforementioned
summary and shall post a certified copy of this Ordinance, together with the vote for and
against the same, in the Office of the City Clerk.
ATTEST:
PASSED, APPROVED AND ADOPTED this 5th day of January, 2004.
R. MONAHAN, CITY CLE
�Z/�/ waea�
WYAY
HART, MAYOR
2
01-05-20005
STATE OF CALIFORNIA )
COUNTY OF ORANGE ) ss.
CITY OF SAN JUAN CAPISTRANO )
I, MARGARET R. MONAHAN, appointed City Clerk of the City of San Juan Capistrano, do
hereby certify that the foregoing is a true and correct copy of Ordinance No. 898 which was
regularly introduced and placed upon its first reading at the Regular Meeting of the City Council
on the 7`h day of December 2004 and that thereafter, said Ordinance was duly adopted and
passed at the Special Meeting of the City Council on the 5`h day of January 2005 by the
following vote, to wit:
AYES: COUNCIL MEMBERS:
NOES COUNCIL M BERS:
ABSENT: COUNCIL MBE S:
, City
Allevato, Bathgate, Soto, and Mayor Hart
RECORDING REQUESTED AND
WHEN RECORDED, RETURN TO:
City Clerk
32400 Paseo Adelanto
San Juan Capistrano, CA 92675
Space Above This Line for Recorder's Use
DEVELOPMENT AGREEMENT
FOR THE RANCHO MADRINA PROJECT
BETWEEN
THE CITY OF SAN JUAN CAPISTRANO
AND
WILLIAM LYON HOMES, INC.
Exhibit A
EFFECTIVE DATE: February 14, 2005
05-01-04 F2 Rancho Madrina Dev Agree Ex A.doc
TABLE OF CONTENTS
Page No.
1. AGREEMENT........................................................................................................................................1
1.1 Code Authorization........................................................................................................................1
1.2 Interest of Owner...........................................................................................................................1
1.3 Intent of Parties..............................................................................................................................1
1.3.1 Achievement of General and Comprehensive Development Plan Goals................................1
1.3.2 Consistency Finding...............................................................................................................2
1.4 Certainty of Process......................................................................................................................2
1.5 Planning Commission - City Council Hearings...............................................................................2
1.6 City Council Findings.....................................................................................................................2
1.7 City Ordinance...............................................................................................................................2
1.8 Consideration.................................................................................................................................2
2, DEFINITIONS........................................................................................................................................3
3. EXHIBITS..............................................................................................................................................5
4. GENERAL PROVISIONS......................................................................................................................5
4.1 Term of Agreement........................................................................................................................5
4.2 Assignment....................................................................................................................................5
4.3 Amendment or Cancellation of Agreement...................................................................................6
4.4 Unforeseen Circumstances............................................................................................................6
4.5 Enforcement..................................................................................................................................7
4.6 Relationship of the Parties.............................................................................................................7
4.7 Sale to Public; Automatic Termination...........................................................................................7
5. CONFLICTS OF LAW...........................................................................................................................7
5.1 Conflict of City and State or Federal Laws.....................................................................................7
5.1.1 Notice and Copies..................................................................................................................7
5.1.2 Modification Conference........................................................................................................7
TABLE OF CONTENTS
Page No.
5.1.3
City Council Hearings............................................................................................................7
5.2
Cooperation in Securing Permits....................................................................................................7
6. DEVELOPMENT OF THE PROPERTY.................................................................................................8
6.1
Permitted Uses..............................................................................................................................8
6.2
Future Laws...................................................................................................................................8
6.3.1
Project EIR.............................................................................................................................8
6.4
Application of Subsequently Enacted Rules, Relations, Etc..........................................................8
6.6
Time For Construction and Completion of Project.........................................................................8
6.7
Residential Building Permit Allocation Plan........................................................................9
6.8
Certificate of Completion................................................................................................................9
6.10
Cooperation in Securing Government Permits/Conflict of Laws................................................9
6.11
Mass Grading Authorized Following Tentative Map.........................................................................9
7. PUBLIC IMPROVEMENTS PROGRAM.................................................................................................9
7.1
Responsibility for Public Improvements........................................................................................9
7.2
Acquisition/Condemnation of Off Site Property............................................................................9
7.3
Phasing of Public Improvements...................................................................................................9
7.4
Improvements Scheduling.............................................................................................................9
7.5
Financing for Public Improvements..............................................................................................10
7.6
Sewer Capacity ............................................................................................................................10
8. ANNUAL
REVIEW...............................................................................................................................10
8.1
City and Owner Responsibilities..................................................................................................10
8.4
Review Letter...............................................................................................................................10
8.5
Estoppel Certificates....................................................................................................................10
8.6
Failure of Periodic Review...........................................................................................................11
9. ENFORCED
DELAY, DEFAULT, REMEDIES AND TERMINATION...................................................11
9.3
Specific Performance Remedy....................................................................................................11
TABLE OF CONTENTS
Page No.
9.6 Applicable Laws/Attorneys Fees...................................................................................................11
10. ENCUMBRANCES AND RELEASES ON PROPERTY....................................................................11
10.1 Discretion to Encumber................................................................................................................11
10.2 Entitlement to Written Notice of Default....................................................................................12
10.3 Property Subject to Pro Rata Claims.......................................................................................12
11. MISCELLANEOUS PROVISIONS....................................................................................................12
11.1 Rules of Construction...............................................................................................................12
11.2 Severability..............................................................................................................................12
11.3 Entire Agreement, Waivers, and Amendments.........................................................................12
11.4 Project as a Private Undertaking..................................................................................................12
11.5 Incorporation of Recitals............................................................................................................12
11.6 Captions................................................................................................................................12
11.7 Consent....................................................................................................................................13
11.8 Covenant of Good Faith and Fair Dealing................................................................................13
11.9 Covenant of Cooperation.........................................................................................................13
11.10 Further Actions and Instruments................................................................................................13
11.11 Operating Memoranda and Amendments...............................................................................13
11.11.1 Alteration of Permitted Uses.............................................................................................13
11.11.2 Increase in Density or Intensity..................................................................................13
11.11.3 Increase in Height and Size............................................................................................13
11.11.4 Deletion of Reservation Requirements.............................................................................14
11.12 Successors and Assigns..........................................................................................................14
11.13 Notices.....................................................................................................................................14
11.14 Recording.................................................................................................................................14
11.15 Effective Date...........................................................................................................................15
DEVELOPMENT AGREEMENT
RANCHO MADRINA
THIS DEVELOPMENT AGREEMENT ("Agreement") is entered into between the CITY
OF SAN JUAN CAPISTRANO, a municipal corporation ("City"), and WILLIAM LYON HOMES,
INC., a California corporation ("Owne('), aria its successors or assigns.
RECITALS
A. On May 20, 2003, the City Council of City certified the Environmental Impact
Report ("EIR") dated May 2003 approved for the foliowing Project: (i) Comprehensive
Development Plan ("CDP") 01-01, Honeyman Ranch (Rancho Madrina) establishing
development and zoning standards to allow development of one -hundred and twenty-four (124)
residential units within the planned community; and (ii) tentative tract map (TTM) 16221, allowing
one -hundred and twenty-four (124) residential lots, and subsequently amended by the Record
of Administrative Approval approved by the Planning Director on October 17, 2003 to allow one -
hundred and nineteen (119) residential units.
B. On June 3, 2003, the City Council of City enacted Ordinance No. 882, adopting
CDP 01-01, Honeyman Ranch and adopted Resolution No. 03-06-03-01 conditionally approving
Tentative Tract Map 16221; and on October 5, 2004 approved Final Map (FM) 16221.
C. City and Owner desire to enter into this Development Agreement to further
confirm their rights and obligations to each other regarding the EIR, CDP 01-01, TTM 16221, and
FM 16221 and the Other Entitlements (defined below).
AGREEMENT.
1.1 Code Authorization. This Agreement is authorized by and in accordance
with Government 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.
1.2 Interest of Owner. Owner is the legal and/or equitable owner of
approximately 78.6 acres of real property located in the City (the "Property"). legally described on
Exhibit "A" and shown on Exhibit "B" attached hereto. The Property forms a portion of the
Rancho Madrina Planned Community. Owner intends to develop the Property pursuant to CDP
01-01, TTM 16221, FM 16221 and the certified EIR (the "Project"). 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, provide public infrastructure and generate revenues to the
City, all in promotion of the health, safety and general welfare of the residents of City.
1.3.1 Achievement of General and Comprehensive Development Plan
Goals. Achieving of the goals of CDP 01-01 as well as the City General Plan and City policies
requires 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 range of housing types,
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significant increases to the real property tax base, and substantial improvements to public
infrastructure and facilities including arterial streets, storm drainage facilities, and General Plan trails.
1.3.2 Consistency Finding. By approving and executing this Agreement,
the City finds that its provisions are consistent with and in the furtherance of the City's General
Plan and with CDP 01-01, and the City further finds 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 df -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 Certainty of Process. The phasing, timing and development of the Project
and the Public Improvements necessitate a significant commitment of resources, planning and
effort by Owner and City, thus requiring certainty in the development process. In return for
Owner's participation and commitment to the significant 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 - City Council Hearings. On November 23, 2004, the
Planning Commission of City, after giving notice pursuant to Government Code Section 65867, held
a public hearing to consider Owner's application for this Agreement. On December 7, 2004, the
City Council, after providing public notice as required by law, held a public hearing to
consider Owner's application for the Agreement.
1.6 _City Council Findings. The City Council has found that this Agreement is
consistent with the General Plan and CDP 01-01, as well as all other applicable plans,
ordinances, policies and regulations of the City.
1.7 City Ordinance. On 2004, the City Council adopted
Ordinance No. approving this Agreement (the "Adopting Ordinance"). The Adopting
Ordinance became effective thirty (30) days following City Council adoption (the "Effective
Date").
1.8 Consideration. The City has determined that this Agreement will further the
goals and objectives of the City's land use planning policies, by eliminating uncertainty in
planning for the orderly development of the Project, to the end that adequate long term 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
conferred by the Project pursuant to this Agreement will help increase traffic capacity for the road
system of the City and will facilitate the installation of certain other significant public
improvements, all of which will significantly promote the health, safety and general welfare of
present and future residents of the City.
In exchange for these benefits to the City 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 01-01, TTM 16221, FM 16221, and the certified Final EIR dated May
2004 , 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
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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 Owner will be deemed to
have a vested interest in CDP 01-01, 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
01-01. These definitions are intended to have substantive effect.
2.1 The "Adopting Ordinance" refers to City Ordinance No. adopted
by the City Council and authorizing the City to enter into this Agreement.
2.2 "Agreement" refers to this " Development Agreement" related to this
Project.
2.3 The "Approval Date" refers to the date on which the City Council approved
the Adopting Ordinance.
2.4 All forms of use of the verb "assign" and the nouns "assignment" and
"assionee" shall include all contexts of hypothecations, sales, conveyances, transfers, leases and
assignments.
2.5 "CEQA" refers to the California Environmental Quality Act (Public
Resources Code Sections 21,000, et seq.).
2.6 "City" refers to the City of San Juan Capistrano, California.
2.7 "City Council" refers to the city council of the City.
2.8 "Comprehensive Development Plan" refers to CDP 01-01 approved by
City Council Ordinance No. 882 on June 3, 2003, a copy of which is on file with the City Clerk.
2.9 "Cure Period" refers to the period of time permitted pursuant to Section 9
in this Agreement.
2.10 A "dam' or "days" refers to a calendar day, unless expressly stated to be a
business day.
2.11 A "Default" or "default" refers to any material default, breach or
violation of the provisions of this Agreement. A "City Default" or "City default" refers to a
Default by the City, while an "Owner Default" or "Owner default" refers to a Default by Owner.
2.12 The "Director" refers to the Director of Planning Services of the City or
any successor to that title or a successor title.
2.13 The "Effective Date" refers to the effective date of the Adopting
Ordinance.
2.14 The "EIR" refers to the Environmental Impact Report certified by the City
Council on June 3, 2003 in connection with CDP 01-01, and TTM 16221.
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2.15 "Entitlements" refers to adoption of CDP 01-01, approval of TTM 16221,
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 final parcel
maps, general plan amendments, site development plans, tentative and final subdivision map
approvals, whether standard or vesting, project plans, grading permits, building permits,
occupancy permits, actions pursuant to the California Environmental Quality Act, and this
Agreement.
2.16 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.
2.17 "Exhibit" refers to an exhibit to this Agreement as listed in Section 3 below.
All Exhibits are incorporated by reference as a substantive part of this Agreement.
2.18 "Existing 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 controls on the rate, timing or sequence of development, the
maximum height and size of proposed buildings, the provisions for reservation and dedication of
land for public purposes, the design, improvement and constriction standards for the Project, all
as set forth in CDP 01-01 and, if not addressed in CDP 01-01, the ordinances, regulations,
resolutions, rules and official policies of the City in effect on the Approval Date, including all
Entitlements approved on or before the Approval Date.
2.19 "Future Laws" 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.
2.20 "Future Entitlements" refers to all Project Entitlements, or amendments
thereto, approved or adopted by the City after the Approval Date.
2.21 "General Fees" -efers to all application fees, processing fees, utility
connection fees, inspection fees, and development impact fees (including, but not limited to,
general development fees, traffic 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.
2.22 "General Plan" refers to the City's general plan in effect on the Approval
Date of this agreement.
2.23 "Mortgage" refers to the lien of any mortgage, deed of trust,
sale-leaseback agreement, lease, sublease or other transaction under which all or a portion of
the Property, including those portions acquired by assignees, is used as security.
2.24 "Mortgagee" refers to the holder of a beneficial interest under a Mortgage or
the owner of any interest in all or any portion of the Property under a Mortgage, including those
portions acquired by assignees.
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2.25 "Notice" refers to any written notice or demand between the Parties
required or permitted by this Agreement.
2.26 "Owner" refers to William Lyon Homes, Inc., a California corporation.
2.27 The "Parties" refers to the City and Owner and a "Party" shall refer to
either of the Parties.
2.28 "Project" refers to the proposeo development of the Property pursuant to
CDP 01-01, TTM 16221, FM 16221 and the certified Finai EIR.
2.29 "Project Plans" refers to specific residential and other construction plans
which shall include elevations, landscaping and architectural designs and features consistent
with CDP 01-01 and other Entitlements.
2.30 The "Property" refers to the real property legally described on Exhibit "A"
and depicted on Exhibit "B" to this Agreement.
2.31 The "Review Letter" refers to the letter in Section 8 below.
2.32 "Subdivision Map" refers to Final Tract Map 16221 approved by the City
Council on October 5, 2004.
2.33 The "Term" 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 or contained in the Technical Appendices:
Exhibit "A": Legal Description of the Property
Exhibit "B": Map of the Property
4. GENERAL PROVISIONS.
4.1 Term of Agreement. Unless otherwise extended, terminated or modified
pursuant to this Agreement, the term of this Agreement (the "Term") shall commence on the
Effective Date and shall extend for a period of five (5) years following the Effective Date, and shall be
subject to one five (5) year extension upon approval by the City Council.
4.2 Assignment. The rights and obligations of Owner under 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 City 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.
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4.3 Amendment or Cancellation of Agreement. This Agreement may be
extended, canceled or amended from time to time by the mutual consent of the Parties, but only in
the manner provided by the Government Code and the City's Ordinances. The "Agreement'
shall include any amendment properly approved and executed.
4.4 Unforeseen Circumstances. If, as a result of facts, events or
circumstances presently unknown and unforeseen, 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
the City's intended action, and
b. the reasons and factual basis for the City's determination;
forward to Owner a minimum of thirty (30) days prior to a public
hearing, all documents relating to that determination;
(iii) give Notice to Owner at least thirty (30) days prior to the hearing
date, of the time and place of the hearing; and
(iv) hold a City Council hearing on the determination, at which hearing
Owner shall have 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:
(i) the circumstances were unknown and unforeseen and could not
have been known or foreseen;
(ii) 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
(iii) 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
respect to the enforcement of the Agreement, the reimbursement
Project, or the development of the Property. If the City Council fails to
the Agreement shall not be terminated, modified or suspended. The L
which justify the suspension, modification or termination of the Agri
changes in state or federal law. In the event of changes in state or fe
of Section 4 below shall govern.
M
either of the Parties with
of costs related to the
make such findings, then
nforeseen circumstances
;ement shall not include
deral law, the provisions
4.5 Enforcement. uniess amended Gi Lei minated 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 Relationship of the 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 Agreement shall
automatically terminate with respect to such iot or parcel upon the occurrence 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 buildings) constructed thereon. The provisions of this Section 4.7
shall be self-executing without the necessity of execuiior, or recordation of any further document.
5. CONFLICTS OF LA.%A1
5.1 Conflict of City and State or Federal Laws. If state or federal laws or
regulations enacted after the Approval Date (i) pravent zmpliance wiih any provision of the
Agreement, (ii) require (as opposed to allow) changes in pians, maps or permits approved by the City,
and (iii) the federal or state law or regulations are mandatory and controlling, then the Parties
shall:
5.1.1 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 course of action of the Party giving the Notice;
and
5.1.2 Mooificatio,n Conference. Within thirty (30) days following the
Notice, meet and confer in good faith in a reasunablr, airerript to modify the Agreement to comply
with the law or regulation.
5.1.3 City Council Hearin s. Subsequent 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 alternate course of action. The City Council, at the hearing, shall determine the
exact modification or suspension or alternate course of action, 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 modification or suspension of the Agreement or alternate 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, and shall be subject to judicial review in conformance with Section
9.5 below.
5.2 Cooperation in Securino Permits. The City shall assist Owner in the
securing of any permits, including permits from other public agencies, which may be required as
a result of the modifications, suspensions or alternate course of action.
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6. DEVELOPMENT OF THE PROPERTY.
6.1 Permitted Uses. Subject to Sections 4 and 5 above, during the Term, the
rules, regulations and official policies governing the permitted uses of the Property, the density
or intensity of use, the timing and phasing of development of the .Project, the maximum height
and size of proposed buildings, .the provisions for reservation 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 Agreement, CDP,01-01, and TTM 16221. In the event of any
inconsistencies, the provisions of CDP 01-01 and TTM 16221 shall prevail over all other Existing
Standards and this Agreement. All future amendments of CDP 01-01 and TTM 16221
which are approved by the City.Council and Owner shall be deemed consistent with this
Agreement.
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 federal law, except any fees due to the City at the time of building permit or grading
permit issuance which shall be those fees in effect at that time.
6.3 Project EIR. The Parties intend that the EIR shall be the project EIR for all
Entitlements and ruture Entitlements for the Project, and no future environmental impact reports
are required. Notwithstanding 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 significant adverse environmental effects which were
not previously considered at the time of approval of CDP 01-01, the EIR and/or the Entitlements.
6.4 Application of Subsequently Enacted Rules, Reoulations, 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 Standards and will not prevent, hinder, delay or financially impact
development of the Property according to CDP 01-01 and the 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 are enacted by the City Council at it's legislative discretion based on
public health welfare and safety considerations.
6.5 Time For Construction and Completion of Project. Owner and City 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 are not within the control of Owner, such as
market orientation and demand, interest rates, absorption, completion, and other similar factors.
Therefore, Owner may develop the Project at the rate deemed appropriate in Owner's subjective
business analysis. Notwithstanding the California Supreme Court decision in Pardee
Construction Co. v. City of Camarillo, 37 Cal.3d 465 (1984), the Parties' emphasize it is the
intention and purpose of this Agreement that Owner shall have 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
otherwise) affecting parcel or subdivision maps (whether tentative, vesting tentative or
final), building permits, occupancy certificates or other entitlements for use approved, issued
or granted within the 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. The residential
building permit allocation plan shall be governed by Section 6.5 hereinafter.
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6.6 Residential Building Permit Allocation Plan. City has, by the
adoption of Resolution 04-04-20-4 established an annual allocation of dwelling units for Owner's
Project consisting of up to 90 dwelling units in year 2004 and 30 dwelling units in year 2005.
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 permits
for those allocated dwelling units which are not actually constructed during years 2004 and
2005, in other, future years on an as needed basis, to comply with the intent of this Agreement as
specified in Sections 6.5 and 6.6 and otherwise.
6.7 Certificate of Completion. If requested by Owner or any Mortgagee
after City's formal approval of the completion of any stage or portion of development of the
Project, City shall provide Owner with an instrument certifying completion. The certification is a
conclusive determination that the obligations of Owner under the Agreement 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 referred to in
California Civil Section 3093.
6.8 Cooperation in Securing Government Permits/Conflict 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.
6.9 Mass Grading Authorized Following Tentative Map. The mass grading of
the Project, pursuant to an approved grading plan permit, may commence, at Owner's election,
following approval of TTM16221.
7. PUBLIC IMPROVEMENTS PROGRAM.
7.1 Responsibility for Public Improvements. The Owner shall construct the
on-site public improvements and construct or contribute the Project's pro-rata share of the
off-site public improvements as required by the findings and conditions of CDP 01-01, TTM
16221, FM 16221 and the certified Final EIR.
7.2 Acquisition/Condemnation of Property for Off-site Improvements. If the
City is unable or unwilling to acquire or condemn any necessary off-site property, rights of way, or
easements per Government Code Section 66462.5, then, in accordance with said provision, the
condition requiring such condemnation shall be subject to amendment to provide alternative
mitigation. Such acquisition/condemnation shall be at Owner's expense, including attorneys' fees
and court costs.
7.3 Phasing of Public Improvements. Although Owner may determine 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 serve the
particular increment of development as determined necessary by the City Engineer.
7.4 Improvements Scheduling. Dates or times of performance by either Party
may be subject to revision from time to time due to economic conditions and other causes as
mutually agreed to by the Parties in writing. Such revisions are deemed to be within the
framework of the Agreement and do not constitute amendments to the Agreement.
7.5 Financing for Public Improvements. From time to time, Owner may
propose to City use of public 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 Improvements to be constructed and financed 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 Sewer Capacity. 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
Agreement.
8. ANNUAL REVIEW.
8.1 City and Owner Responsibilities. Within sixty (60) days after the end of
each twelve (12) month period during the term of this Agreement, City shall commence a review
of the extent of good faith substantial compliance by Owner with the terms of this
Agreement (the "Annual Review"). At the conclusion of the Annual 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 Annual Review.
8.2 Review Letter. 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 City 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.
8.3 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:
(i) The Agreement is in full force and effect and is a binding obligation
of the Parties.
(ii) The Agreement 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
or description of any Default.
A Party receiving a request under this provision shall execute and return a certificate within thirty
(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.
Etiz
8.6 Failure of Periodic Review. City's failure to review at least annually (as
described herein) Owner's compliance with the terms and conditions of this Agreement shall
not constitute or be asserted by City as an Owner Default.
DEFAULT & REMEDIES.
9.1 Specific 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 terms of this Agreement and will be investing
even more significant time and resources in implementing the Project in reliance upon the terms
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 monetary damages
are 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 Agreement, and City hereby agrees that Owner shall be
entitled to specific performance in the event of a default by City hereunder.
9.2 Applicable Laws/Attomev's Fees. The Agreement shall be construed 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 connection with the Agreement, the prevailing Party in
the action shall be entitled to recover reasonable attorney's fees, court costs, and necessary
disbursements in connection with this litigation.
9.3 Specific 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 terms of this Agreement and will be investing
even more significant time and resources in implementing the Project in reliance upon the terms
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, monetary damages
are 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 Agreement, and City hereby agrees that Owner shall be
entitled to seek specific performance in the event of a default by City hereunder.
10. ENCUMBRANCESAND RELEASES ON PROPERTY.
10.1 Discretion to Encumber. The Agreement shall not prevent or limit Owner,
in any manner, at Owner's sole discretion, from encumbering the Property or any portion of the
Property or any improvement on the Property by any Mortgage. City acknowledges that
lenders providing financing may require modifications to the Agreement and City
agrees, upon request, 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 Agreement.
10.2 Entitlement to Written 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 Subject to Pro Rata Claims. Any person or entity who/which
comes into possession of any portion of the Property pursuant to foreclosure of a Mortgage or
deed in lieu of foreclosure, shall take possession, 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.
11. MISCELLANEOUS PROVISIONS.
11.1 Rules of Construction. The singular includes the plural; the masculine
gender includes the feminine; "shall' is mandatory; "may' is permissive.
11.2 Severability. If any non -material provision of the Agreement 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 Agreement 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 necessary to make valid the Agreement
or that portion which is adjudged to be unenforceable.
11.3 Entire Agreement, Waivers. 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
agreements 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, California.
Within ten (10) days following the Effective Date, a copy of this Agreement shall be recorded in
the Official Records of Orange County, California. Upon the completion of performance
of this Agreement or its revocation or termination, 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 Project 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; and (c) Owner shall
have the full power and exclusive control of the Property subject to the obligations of Owner set
forth in the Agreement.
11.5 Incorporation 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, modify, construe, limit, amplify or aid in the
interpretation, construction or meaning of any of the provisions of this Agreement.
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11.7 Consent. Where the consent or approval of a Party is required in or
necessary under this Agreement, the consent or approval shall not be unreasonably 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 Agreement. 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.
11.9 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
permits for the development of the Property which may be required from public agencies other
than City. Owner reserves the right to challenge any ordinance, measure, moratorium,
initiative, referendum or other limitation in a court of law to the extent deemed necessary to
protect the development rights vested in the Property pursuant to this Agreement.
11.10 Further Actions and Instruments. 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 Party, the other Party shall promptly execute, with acknowledgment or
affidavit if reasonably required, and file or record such required instruments and writings and take
any actions as may be reasonably necessary under the terms of this Agreement to carry out
the intent and to fulfill the provisions of this Agreement or to evidence or consummate the
transactions contemplated by this Agreement.
11.11 Operating Memoranda and Amendments. 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 are necessary or
appropriate, they will, unless otherwise required by law, effectuate such changes or
adjustments through operating memoranda approved by the Owner and by the Director on behalf
of the City. Each such operating memorandum will 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 of this Agreement under Government 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. .
11.11.1 Alteration of Permitted Uses. Alteration of the permitted uses of the
Property except to the extent permitted by this Agreement or CDP 01-01.
11.11.2 Increase in Density 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 01-01.
11.11.3 Increase in Height and Size. Increase in the maximum height and
size of permitted buildings except to the extent permitted by this Agreement or CDP 01-01 .
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11.11.4 Deletion of Reservation Requirements. Deletion of a requirement
for the reservation or dedication of land for public purposes, except for minor boundary
adjustments approved by the Community Development Director of the City and except to the extent
permitted by this Agreement or CDP 01-01.
11.12 Successors and Assigns. Subject to Section 4.2, the burdens of this
Agreement shall be binding upon, and the benefits of the Agreement inure to, all
successors -in -interest and assigns of the Parties to all or any portion of the Property, and shall
run with and burden and benefit the Property, and all portions thereof.
11.13 Notices. All Notices between the Parties pursuant 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
Service registered mail, or by telegram to the addresses set forth below. Receipt shall be
deemed complete as follows:
(i) For personal delivery, upon actual receipt;
(ii) For U.S. Postai Service registered, certified, or express mail, upon
the delivery date or attempted delivery date as shown on the return
receipt; and
(iii) For telegram, upon the transmission 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
To Owner: William Lyon Homes, Inc.
4090 Von Karman Avenue
Newport Beach, CA 92660
Attention: Tom Grable
and
John C. Condas, Esq.
Nossaman, Guthner, Knox & Elliott, LLP
18101 Von Karman Avenue, Suite 1800
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.
11.14 Recording. The City Clerk shall cause a copy of the Agreement to be
recorded with the Office of the County Recorder of Orange County, California within ten (10)
days following the Effective Date.
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11.15 Effective 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
Government Code Section 65867.5 and the completion of any referendum process initiated
thereunder.
[Signature page follows]
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This Agreement has been executed by the Parties as of the date set forth next to their
respective signatures.
ATTEST:
MARGARET MONAHAN, CITY
Approved as form:
JOHN SHAW. CITY ATTORNEY
CITY OF SAN JUAN CAPISTRANO, a
municipal corporation
37
JOE SOTO, MAYOR
IKi��iHgq
on behalf of William Lyon Homes, Inc.
[Signatures To Be Notarized by Public Notary]
DEVELOPMENT AGREEMENT
EXHIBIT A
(Legal Description of Property)
DEVELOPMENT AGREEMENT
WAWA Imo:
(Depiction of Property)