Ordinance Number 959C0M-
,19]1 I►, J[9jxk[��'1 '
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF
SAN JUAN CAPISTRANO, CALIFORNIA APPROVING
AN AMENDED DEVELOPMENT AGREEMENT FOR
THE WHISPERING HILLS ESTATES PROJECT
(RANCHO SAN JUAN DEVELOPMENT, LLC)
The City Council of the City of San Juan Capistrano hereby ordains as follows:
SECTION 1. Recitals and Findings
Rancho San Juan Development, LLC has requested approval of a
amendments to the Development Agreement, entitled "Development
Agreement for Whispering Hills Estates By and Between the. City of San Juan
Capistrano and Whispering Hills, LLC'; and,
2. On May 21, 2002, the City Council of the City adopted Resolution No.
02-05-21-07, certifying a Final Environmental Impact Report ("EIR") for a
similar but more intensive development project covering the property which is
the subject of the Development Agreement ("Agreement") identified herein;
and,
3. Subsequently, on July 20, 2004, the City Council adopted Resolution No.
04-07-20-01 certifying an Addendum to the EIR ("Addendum") and approving
Vesting Tentative Tract Map 16634 ("VTTM 16634") for a subdivision with
155 single-family residential lots plus open space lots; and,
4. On August 3, 2004, the City Council approved Comprehensive Development
Plan 04-01 ("CDP 04-01"), by adopting of Ordinance No. 896 for the
Whispering Hills Estates project; and,
5. On December 7, 2004, the City Council adopted Resolution No. 04-12-07-03
approving General Plan Amendment (GPA 04-01) and also adopted
Ordinance No. 899 on January 1, 2005 pre -zoning 34 acres of
unincorporated territory located on the west side of La Pata Avenue; and,
6. The City Council finds that, per Section 15153 of the California Environmental
Quality Act (CEQA) Guidelines, the potential environmental impacts of the
project have been previously addressed in the EIR and Addendum, that the
project does not meet the CEQA Guidelines criteria requiring preparation of a
subsequent EIR per Sec. 15162(a), that all potentially significant effects of
the Whispering Hills project have been previously adequately analyzed and
potentially significant impacts have been avoided or mitigated pursuant to the
previously certified EIR and Addendum; and,
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7.. City and Owner desire to enter into this Amended Development Agreement to
further confirm their rights and obligations to each other regarding the EIR,
the Addendum, Comprehensive Development Plan (CDP) 04-01, Tentative
Tract Map (TTM) 16634, General Plan Amendment (GPA) 04-01, Rezone
(RZ) 04-05 and other land use entitlements; and,
8. The Planning Commission conducted a duly -noticed public hearing on May
12, 2009 pursuant to the provisions of Section 9-2.335 of Title 9 (Land Use
Code) to consider public testimony on the proposed Agreement, and then
forwarded the Agreement to the City Council with a recommendation of
approval; and,
9. Pursuant to Government Code section 65867.5, the City Council hereby finds
that the provisions of this development agreement are consistent with the
City's General Plan; and
10. The City Council finds it appropriate to establish a development agreement
because the Agreement will create a public benefit payment equal to 10% of
the Capistrano Unified School District's (CUSD) Community Facilities District
(CFD) bond proceeds for the City, which can be used for community -wide
facilities and infrastructure.
SECTION 2. Approval and Adoption of Development Agreement
Pursuant to Government Code sections 65864 et seq., the City Council does
hereby approve and adopt the "Amended Development Agreement for
Whispering Hills Estates By and Between the City of San Juan Capistrano and
Rancho San Juan Development, LLC", which is attached as Exhibit A,
incorporated herein by reference, with Section 4.1 to the agreement amended to
include "the City Council will consider granting, at its sole discretion, an extension
of uta to an additional five (5) years..."; and the Public Benefit Payment to the
City shall be 10% of the total bond amount issued for the Capistrano Unified
School District (CUSD) Community Facilities District (CFD), and shall be payable
to the City at the time the Community Facilities District Bond is funded. 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,
2 0959
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.
PASSED, APPROVED AND ADOPTED this 16th day of June, 2009.
MA(RKANIE19EN, M YOR
ATTEST:
MARGARET R. MPAHAN, CITY CLERK
STATE OF CALIFORNIA j
COUNTY OF ORANGE )SS.
CITY OF SAN JUAN CAPISTRANO j
1, 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. 959 which was regularly introduced and placed upon its first
reading at the Regular Meeting of the City Council on the 2" " day of June 2009
and that thereafter, said Ordinance was duly adopted and passed at the Regular
Meeting of the City Council on the 16th day of June 2009 by the following vote, to
wit:
AYES: COUNCIL MEMBERS: Allevato, Hribar, Freese, and Mayor Nielsen
NOES COUNCIL MEMBERS: Mayor pro tem Uso
ABSENT: COUNCIL MEMBERS: None
MARGARET R.
�NAHAN, City Clerk
0 959
STATE OF CALIFORNIA }
COUNTY OF ORANGE } ss AFFIDAVIT OF POSTING
CITY OF SAN JUAN CAPISTRANO }
1, MARGARET R. MONAHAN, declare as follows: That I am the duly appointed
and qualified City Clerk of the City of San Juan Capistrano; That in compliance
with State laws, Government Code section 36933(1) of the State of California, on
the 7th day of June 2009, at least 5 days prior to June 16, 2009, the date of
adoption of the ordinance, I caused to be posted, in the City Clerk's Office a
certified copy of the proposed Ordinance entitled:
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF
SAN JUAN CAPISTRANO, CALIFORNIA APPROVING
AN AMENDED DEVELOPMENT AGREEMENT FOR
THE WHISPERING HILLS ESTATES PROJECT
(RANCHO SAN JUAN DEVELOPMENT, LLC)
_ 1
MA CARET R. MOARAN, CITY CLERK
San Juan Capistrano, California
STATE OF CALIFORNIA }
COUNTY OF ORANGE } ss AFFIDAVIT OF POSTING
CITY OF SAN JUAN CAPISTRANO )
1, MARGARET R. MONAHAN, declare as follows: That 1 am the duly appointed
and qualified City Clerk of the City of San Juan Capistrano; That in compliance
with State laws, Government Code section 36933(1) of the State of California.
On the 18th day of June 2009 1 caused to be posted, in the City Clerk's office, a
certified copy of Ordinance No. 959, adopted by the City Council on June 16,
2009 entitled:
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF
SAN, JUAN CAPISTRANO, CALIFORNIA APPROVING
AN AMENDED DEVELOPMENT AGREEMENT FOR
THE WHISPERING HILLS ESTATES PROJECT
(RANCHO SAN JUAN DEVELOPMENT., LLC)
MARGARET R. MAHA I, CITY CLERK
San Juan Capistran , California
4 0959
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
AMENDED DEVELOPMENT AGREEMENT
FOR WHISPERING HILLS ESTATES
THE CITY OF SAN JUAN CAPISTRANO
AND
RANCHO SAN JUAN DEVELOPMENT, LLC
EFFECTIVE DATE: July 1 6, 2009
Exhibit A
TABLE OF CONTENTS
PAGE
1. AMENDED AGREEMENT....................................................................................... 2
1.1
Code Authorization.............................................................................................
2
1.2
Interest of Owner................................................................................................
2
1.3
Intent of Parties..................................................<................................................
3
1.3.1
Achievement of General and Comprehensive Development Plan Goals ...
3
1.3.2 Consistency Finding.....................................................................................
4
1.4
Certainty of Process............................................................................................
4
1.5
Compliance With California Environmental Quality Act ..................................
4
1.6
Planning Commission - City Council Hearings ..................................................
5
1.7
City Council Findings .........................................................................................
5
1.8
City Ordinance....................................................................................................
5
1.9
Consideration............<......................................................................................5
2. DEFINITIONS............................................................................................................7
2.1
Addendum...........................................................................................................
7
2.2
Adopting Ordinance............................................................................................
7
2.3
Amended Agreement.........................................................................-...............
7
2.4
Annual Review....................................................................................................
7
2.5
Annual Review Letter.........................................................................................
7
2.6
Approval Date.....................................................................................................
7
2.7
Assign, Assignment and Assignee........................................................
2.8
CEQA....................................................................................................e.............8
2.9
City......................................................................................................................
8
2.10
City Council.........................................................................................................
8
2.11
Comprehensive Development Plan.....................................................................
8
2.12
Cure Period.........................................................................................................
8
2.13
Day or days.........................................................................................................
8
214
DefauIt.................................................................................................................8
2.15
Director...........................................................................................................
8
2.16
Effective Date.....................................................................................................
8
2.17
EIR......................................................................................................................
9
2.18
Exhibit........................................................................................................9
2.19
Existing Development Approval.........................................................................
9
2.20
Existing Exactions..............................................................................................
9
2.21
Existing Land Use Regulations...........................................................................
9
2.22
FEIR....................................................................................................................9
2.23
General Fees........................................................................................................
9
2.24
General Plan......................................................................................................
10
2.25
Land Use Regulations.......................................................................................
10
2.26
Mortgage...........................................................................................................
10
2.27
Mortgagee..................................................................................................... <...
10
2.28
Notice................................................................................................................11
2.29
Operative Date..................................................................................................
11
2.30
Owner................................................................................................................11
2.31
Parties................................................................................................................11
2.32
Project...............................................................................................................
l I
Exhibit A
TABLE OF CONTENTS
PAGE
2.33 Project Plans ...................................................................................................11
2.34 Property.............................................................................................................11
2.35
Review Letter....................................................................................................11
2.36
Subdivision Map............................................................................. ..............A
l
237
Subsequent Development Approvals................................................................12
2.38
Subsequent Land Use Regulations....................................................................12
2.39
Tenn..................................................................................................................12
3.
EXHIBITS.................................................................................................................13
4.
GENERAL PROVISIONS ...................................................
13
4.2
Assignments......................................................................................................13
4.3
Amendment or Cancellation of Amended Agreement......................................14
4.4
Unforeseen Circumstances................................................................................14
4.5
Enforcement .................................................................................................15
4.6
Relationship of the Parties............................................................................<....16
4.7
Sale to Public; Automatic Termination ............... -...........................................
16
4.8
Modification or Suspension by State or Federal Law.......................................16
5.
DEVELOPMENT OF THE PROPERTY.................................................................17
5.1
Permitted Uses; Vested Rights..........................................................................17
5.2
Application of Subsequently Enacted Rules, Regulations................................18
5.3
Project CEQA Documentation..........................................................................18
5.4
Time For Construction and Completion of Project; Compliance with Growth
Management Ordinance..............................................................................................18
5.5
Cooperation in Securing Government Permits/Conflict of Laws .....................20
5.6
Compliance with Government Code Section 66473.7 ......................................
20
6.
PUBLIC IMPROVEMENTS PROGRAM...............................................................21
6.1
Responsibility for Public Improvements...........................................................21
6.2
Phasing of Public Improvements.......................................................................21
6.3
Improvements Scheduling.................................................................................21
6.4
Financing for Public Improvements...... ....... ................................................... .
21
6.5
Sewer Capacity..................................................................................................
22
6.6
Reimbursement Amended Agreements .......................
22
6.7
Public Benefit Payment to the City...................................................................22
6.8
Public Benefits to and Easement Amended. Agreement with the County of
Orange Relating to Avenida La Pata and Trail Improvements ...................................
23
7.
ANNUAL REVIEW................................................................................:.................25
7.1
City and Owner Responsibilities.......................................................................
25
7.2
Review Letter....................................................................................................
26
7.3
Estoppel Certificates.........................................................................................
26
7.4
Failure of Annual Review.................................................................................
27
8.
DEFAULT AND REMEDIES ..................................................................................
28
8.1
Performance Remedy........................................................................................
28
8.2
Applicable Laws/Attorney's Fees......................................................................28
9.
ENCUMBRANCES AND RELEASES ON PROPERTY .......................................
29
9.1
Discretion to Encumber.....................................................................................29
9.2
Entitlement to Written Notice of Default..........................................................29
TABLE OF CONTENTS
0.3 Property Subject tOPro Rata Claims ............................................................ :—.24
10i MISCELLANEOUS PROVISIONS ............................ ............... ............ .....—.'29
l[i} ltn}esnfCnnobo(tion........................................................................................ 30
10.2 -------........---.—.—.—.---..--.........3U
l[i] Entire Amended Agreement Waivers. and Amendments ......... ....................... 30
10i4 Project 888Private Undertaking ..... ......... ........... ................................... _.'.]l
10.5 Incorporation 0fRecitals .................................................................................... 3}
10.0 Captions -----.-------,,_,,__.__.__._.___,____,,,—~.31
10'7 Consent .............................................................................................................. 3l
10.8 Covenant ofGood Faith and Fair Dealing ......................... ................. ........... 32
10.9 Covenant of Cooperation .................................. .......... ............................... ..... 32
10. 10 Further Actions and Instruments ....................................................................... 32
I[i1lSuccessors and Assigns ........................................................ ............................ ]]
l[il2Third Party Beneficiary ..................................... ........ --- ......................... ....... 33
10. 13 Notices ......................................... ........ ............ .... _......... ..,^^^,~...... ........ 33
10. 14 Recording ..................... ........ ....... ................................ ............. ..................... 34
AMENDED DEVELOPMENT AMENDED AGREEMENT
THIS AMENDED DEVELOPMENT AGREEMENT ("Amended
Agreement") is entered into between the CITY OF SAN JUAN CAPISTRANO, a
municipal corporation ("City"), and RANCHO SAN JUAN DEVELOPMENT, LLC, a
Delaware limited liability company ("Owner"), and its successors or assigns. City and
Owner are sometimes referred to singularly herein as a "Party" and collectively as the
"Parties."
RECITALS
A. . On May 21, 2002, the City Council of the City adopted Resolution
No. 02-05-21-07, certifying a Final Environmental Impact Report ("EIR") for a similar
but more intensive development project covering the property which is the subject of this
Amended Agreement. Subsequently, on July 20, 2004, the City Council adopted
Resolution No. 04-07-20-01 certifying; an Addendum to the EIR ("Addendum") and
approving; Vesting Tentative Tract Map 16634 ("VTTM 16634") for a subdivision
proposing 155 single-family residential lots plus open space lots. On July 20, 2004, the
City Council also approved first reading and introduction of an ordinance approving
Comprehensive Development Plan 04-01 ("CDP 04-01") which was subsequently
approved by a second reading; and adoption of Ordinance No. 896 on August 3, 2004, all
for the Whispering Hills Estates project.
B. On December 7, 2004, the City Council of City adopted Resolution
No. 04-12-07-03 approving; General Plan Amendment (GPA 04-01) and also approved
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first reading and introduction of Ordinance No. 899 (RZ 04-05) pre -zoning 34 acres of
unincorporated territory located on the West Side of La Pata Avenue, approximately one
anile south of Ortega Highway for a portion of Whispering Hills Estates. Second reading
of Ordinance No. 899 occurred on January 1, 2005, was adopted, and such ordinance
became effective 30 days later on January 31, 2005.
C. City and Owner desire to enter into this Amended Development
Agreement to further confirm their rights and obligations to each other regarding the EIR,
the Addendum, CDP 04-01, TTM 16634, GPA -04-01, RZ04-05 and other land use
entitlements (collectively referred to as the "Existing Development Approvals")
1. AMENDED AGREEMENT.
1.1 Code Authorization. This Amended Agreement is
authorized by and has been prepared 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 348 acres of real property, 314 acres of which real property are
located in the City and 34 acres of which real property are located in the unincorporated
area of County but within the City's Sphere of Influence (the "Property"). The Property
is legally described on Exhibit "A" and shown on Exhibit "P" attached hereto, and is
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sometimes referred to as Whispering Hills Estates. As further provided herein, this
Amended Agreement shall not become operative with respect to the 34 acres of the
Property located in the unincorporated area of the County until the later to occur of
(a) the Operative Date of this Amended Agreement as provided in Section 4, or (b) the
date the annexation proceedings for the annexation of the 34 acres of Property into the
City are completed. Owner intends to develop the Property pursuant to the Land Use
Entitlements (the "Project'). City and Owner wish to provide for the development of the
Property and obtain certainty with respect to implementation of Existing Development
Approvals and the obligations required of Owner by City 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 the goals of the City General. Plan and the
Comprehensive Development Plan for the Project as well as City policies governing
development requires the cooperation of Owner and City. As a result of the development
of the Property, the City will benefit from added residential housing, significant increases
to the real property tax base, and substantial improvements to public infrastructure and
facilities including arterial streets, sewer, water, storm drainage facilities, as well as
parks, open space and expansion of General Plan trails.
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1.3.2 Consistene Findin . By approving and executing
this Amended Agreement, the City finds that its provisions are consistent with and in
furtherance of the City's General flan and the Comprehensive Development Plan, and the
City further finds and determines that execution of this Amended 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 the Existing Development
Approvals, in view of the enacted land use standards and policies of the City embodied in
its Existing Land Use Regulations and in view of State law including, without limitation,
•m
1.4 Certainty of Process. The phasing, timing and development
of the Project and the associated Public Improvements, as further provided in Section 6,
herein, 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
commitment to the significant contribution of private resources, including substantial
economic resources for public purposes, the City wishes to provide certainty in the
development process for the Project.
1.5 CoMpliance With California Environmental Quality Act.
On May 21, 2002, the City Council adopted Resolution No. 02-05-21-07, certifying the
EIR, and subsequently thereafter on July 20, 2004 adopted Resolution No. 04-07-20-01
certifying an Addendum to the EIR. Both the EIR and the Addendum addressed
environmental impacts associated with the Project, the Existing Development Approvals
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06/2/09
and this Amended Agreement pursuant to the provisions of the California Environmental
Quality Act (Public Resources Code section 21000 et seq.) ("CEQA" ).
1.6 Planning Commission - City Council Hearings. On April
14 and May 12, 2009 the Planning Commission of City, after giving notice pursuant to
Govermnent Code Section. 65867, held a public hearing to consider Owner's application
for this Amended Agreement, and took action to recommend approval of the subject
Amended Agreement. On June 2, 2009, the City Council, after providing public notice as
required by law, held a public hearing to consider Owner's application for the Amended
Agreement.
1.7 City Council Findings. The City Council has found that this
Amended Agreement is consistent with the General Plan, the Existing Land Use
Regulations, the Existing Development Approvals and all other applicable plans,
ordinances, policies and regulations of the City.
1.8 City Ordinance. On June 16, 2009 ("Approval Date"), the
City Council adopted Ordinance No. approving this Amended Agreement
(the ".Adopting Ordinance"). The Adopting Ordinance became effective thirty (30) days
following City Council adoption (the "Effective Date").
1.9 Consideration.. The City has determined that this Amended
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, and
assuring that adequate infrastructure for existing and future city residents can be
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developed and implemented. Without limiting the generality of the foregoing, the
benefits conferred by the Project pursuant to this Amended Agreement will facilitate the
installation of certain significant public improvements, including, but not limited to
installation of a water system, installation of a sewer system, provision of additional
housing, provision of open space, provision of trails in accordance with the City Master
Plan of Trails and the reservation of a site for a reclaimed water reservoir, 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 the Existing Development Approvals, and the
certified EIR and Addendum, and at a rate of development subject to the terms and
conditions of this Amended Agreement.
The rights, duties, obligations and assurances provided by the City and the
Owner to each other in this Amended 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 Owner will be deemed to have a vested interest in the Existing
Development Approvals, which will be the controlling land use plan for the Project in
combination with this Amended Agreement.
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2. DEFINITIONS. The following definitions apply only to their use
within this Amended Agreement and not to any other document or Amended Agreement
pertaining to the Project, including the Existing Development Approvals. These
definitions are intended to have substantive effect.
2.1. "Addendum" refers to the Addendum to the FIR certified
on July 20, 2004 by City Council Resolution No. 04-07-20-01.
2.2 "Adopting Ordinance" refers to City Ordinance
No. adopted by the City Council and authorizing the City to enter into this
Amended Agreement.
2.3 "Amended Agreement" refers to this Amended
Development Amended Agreement for Whispering Hills Estates.
2.4 "Annual Review" refers to the review by City of Owner's
good faith substantial compliance with this Amended Agreement, as provided in Section
7.1 of this Amended Agreement.
2.5 "Annual Review Letter" refers to the letter specified in
Section. 7.2 of this Amended Agreement.
2.6 "Approval Date" refers to the date on which the City
Council approved the Adopting Ordinance.
2.7 All forms of use of the verb "assign" " and the nouns
"assignment" and "assignee" shall include all contexts of hypothecations, sales,
conveyances, transfers, leases and assignments.
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2.8 "CEQA" refers to the California Environmental Quality
Act (Public Resources Code Sections 21000, et sect.).
2.9 "City" refers to the City of San Juan Capistrano, California.
2.10 "City Council" refers to the city council of the City.
2.11 "Comprehensive Development Plana" refers to CDP 04-01
approved by City Council Ordinance No. 896 on August 3, 2004, a copy of which is on
file with the City Clerk.
2.12 "Cure Period" refers to the period of time permitted
pursuant to Section 9 in this Amended Agreement.
2.13 "Day" or "days" refers to a calendar day, -unless expressly
stated to be a business day
2.14 "Default" refers to any material default, breach or violation
of the provisions of this Amended 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.
2.15 "Director" refers to the Community Development Director
of the City or any successor to that title or a successor title.
2.16. "Effective Date" refers to the effective date of the
Adopting Ordinance which is thirty (30) days following the Approval Date.
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2.17 "EIR" refers to the Environmental Impact Report certified
by City Council Resolution No. 02-05-21-07 on May 21, 2002.
2.18 "Exhibit" refers to an exhibit to this Amended Agreement
as listed in Section 3 below. All Exhibits are incorporated by reference as a substantive
part of this Amended Agreement.
2.19 "Existing Development Approvals" means those certain
land use entitlement approvals, development permits and other related approvals issued,
approved, and/or certified by the City Council or the City's Planning Commission as of
the Approval Date including but not limited to the EIR, the Addendum, GPA -04-01, RZ
04-05, CDP 09-01, and VTTM 16634.
2.20 "Existing Exactions" refers to any fee, charge,
requirement, dedication, condition, restriction or limitation imposed by the City upon the
development of the Property in effect and operation as of the Approval Date.
2.21 "Existing Land Use Regulations" means any Land Use
Regulations accepted, effective and a matter of public record as of the Approval Date.
2.22 "FEIR" refers collectively to the EIR certified by City
Council Resolution No. 02-05-21-07 on May 21, 2002 and the Addendum certified by
City Council Resolution No. 04-07-20-01 on July 20, 2004.
2.23 "General Fees" refers to all application fees, processing
fees, utility connection fees, inspection fees, and development impact fees (including, but
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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.
2.24 "General Plan" refers to the City's general plan in effect on
the Approval Date of this Amended Agreement.
2.25 "Land U.se Regulations" refers to all the ordinances,
resolutions, laws, codes, official policies, regulations and orders of the City affecting (a)
the permitted uses and development of the Property, including without Iimitation the
General Plan of the City, the City Zoning ordinances, subdivision ordinances, building or
other development regulations; (b) the density or intensity of use; (e) subdivision
requirements; (d) limitation or control on the rate, timing or sequence of development; (e)
the maximum height and size of proposed buildings; (f) the provisions for reservation and
dedication of land for public purposes; (g) the design, improvement and construction
standards for the Project and (h) the Existing Development Approvals..
2.26 "Mortgage" refers to the lien of any mortgage, deed of
trust, sale-leaseback Amended 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.
2.27 "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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2.28 "Notice" refers to any written notice or demand between
the Parties required or permitted by this Amended Agreement.
2.29 "Operative Date" is the date of formation of the Capistrano
Unified School District No. 2005-1.
2.30 "Owner" refers to Rancho San Juan Development, LLC, a
Delaware limited liability company.
2.31 "Parties" refers to the City and Owner and a "Party" shall
refer to either of the "Parties."
2.32 "Project" refers to the development of the Property
pursuant to the Existing Development Approvals and the certified FEIR.
2.33 "Project Plans" refers to specific residential and other
construction plans which shall include elevations, landscaping and architectural designs
and features consistent with CDP 04-01 and the Existing Development Approvals.
2.34 "Property" refers to the real property legally described on
Exhibit "A" and depicted on Exhibit "B" to this Amended Agreement.
2.35 "Review Letter" refers to the letter in Section 7.2 below.
2.36 "Subdivision Map" refers to VTTM 16634 approved by the
City Council on July 20, 2004.
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2.37 "Subsequent Development Approvals" means any land use
development permit and/or approval obtained after the Effective Date in connection with
the development of the Property.
2.38 "Subsequent Land Use Regulations" means any Land Use
Regulation adopted, effective and made a matter of public record after the Approval
Date.
2.39 "Teen" refers to the term of this Amended Agreement as
provided in Section 4.1 below.
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3. EXHIBITS.
The following Exhibits to this Amended 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 Tenn of Amended Agreement, Operative Date. The tern of
this Amended Agreement (the "Term") shall commence and become operative on the
date of City Council adoption of the Ordinance approving this Amended Agreement and
shall extend for a period of five (S) years following the Operative Date. if the Owner is
unable to complete the Project within the Term of this Amended Agreement, the City
Council will consider granting, at its sole discretion, an extension of up to an additional
five (S) years upon terms and conditions mutually agreeable to the Parties.
4.2 Assignments. The rights and obligations of Owner under
this Amended 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 Amended Agreement and to the prior written consent of City, which
shall not be unreasonably withheld. During the Terra., any assignee shall have those
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rights, benefits and obligations of Owner under this Amended 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 Amended 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.
4.3 Amendment or Cancellation of Amended Ageernent. This
Amended 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
section 65868 and the City's Ordinances. The Amended 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 Amended 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;
(ii) forward to Owner a minimum of thirty (30) days prior to a
public hearing, all documents relating to that determination;
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(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 Amended 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 either of the Parties with respect to the enforcement of the Amended Agreement, 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 Amended Agreement shall not be
terminated, modified or suspended. The unforeseen circumstances which justify the
suspension, modification or termination of the Amended Agreement shall not include
changes in state or federal law. In the event of changes in state or federal law, the
provisions of Section 4.8 below shall govern.
4.5 Enforcement. Unless amended or terminated as provided
in Section 4.3, the Amended Agreement is enforceable by any Party or its assigns,
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notwithstanding any Subsequent Land Use Regulations which alter or amend the Existing
Land Use Regulations.
4.6 Relationship of the Parties. The contractual relationship
between the City and Owner arising out of this Amended Agreement is one of
independent contractor and not agency.
4.7 Sale to Public; Automatic Termination. The provisions of
Section 4.2 regarding the assignment of the Amended Agreement 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 Amended Agreement shall automatically
terminate with respect to such lot 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 building(s) constructed thereon. The provisions of this
Section 4.7 shall be self-executing without the necessity of execution or recordation of
any further document.
4.8 Modification or Suspension b State or Federal Law. 1n
the event that State or Federal laws or regulations prevent or preclude or affect
compliance with one or more of the provisions of this Amended Agreement, such
provisions of this Amended Agreement shall be modified or suspended as may be
necessary to comply with. such State or Federal laws or regulations; provided, however,
that this Amended Agreement shall remain in full force and effect to the extent it is not
inconsistent with such laws or regulations and to the extent such laws or regulations do
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not render such remaining provisions impractical or impossible to enforce.
5. DEVELOPMENT OF THE PROPERTY.
5.1 Permitted Uses; Vested Rights. During the Term, the rules,
regulations and official policies governing the permitted uses of the Property pursuant to
the Existing Development Approvals, 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 Amended Agreement, and the Existing Development Approvals and the
Existing Land Use Regulations, and Owner shall have a vested right to complete
development of the Project in accordance with such Existing Development Approvals, In
the event of any inconsistencies, the provisions of the Existing Development Approvals
shall prevail over all other Land Use Regulations and this Amended Agreement. All
future amendments of the Existing Development Approvals which are approved by the
City Council and Owner shall be deemed consistent with this Amended Agreement.
Other than as provided by the Existing Development Approvals, no additional fee,
charge, requirement, dedication, condition, restriction or limitation shall be imposed by
City on the development of the Project other than the Existing Exactions; provided
however, that any fees due the City at the time of building permit or grading permit
issuance shall be payable at the rate in effect at that time of such issuance.
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5.2 Application. of Subsequent Land Use Regulation,
Subsequently Enacted..Rules,,.Regulations. Subsequent Land Use Regulations or other
subsequently adopted or enacted rules, official policies or regulations of the City
affecting the development of the Property may be applied to the Project only if they are
not in conflict with or are more restrictive than the Existing Land Use Regulations and
will not prevent; hinder, delay or financially impact development of the Property in
accordance with the Existing Development Approvals 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 safety and welfare considerations.
5.3 Project CEQA Documentation. The Parties intend that the
EIR and the Addendum constituting the FEIR shall be the Project environmental
documentation required under CEQA 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; an environmental review of Subsequent
Development Approvals. 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 04-01, the EIR, and/or the Existing Development Approvals.
5.4 Time For Construction and Completion of Project;
Compliance with Growth Management Ordinance. Owner and City cannot predict when
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or the rate or the order in which the Project 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 and construct individual residential dwelling
units thereon at the rate deemed appropriate in Owner's subjective business analysis;
provided that the Project shall be developed in accordance with the Existing
Development Approvals, including the phasing of construction of public improvements.
Notwithstanding the California Supreme Court decision in Pardee Construetion Co. v.
City of Camarillo, 37 Cal.3d 465 (1984), the Parties emphasize it is the intention and
purpose of this Amended Agreement that Owner shall have the right to develop the
Project and construct individual residential dwelling units thereon at such rate, and at
such times as Owner deems appropriate, provided that the Project shall be developed in .
accordance with the Existing Development Approvals, including the phasing of
construction of public improvements. 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 Amended Agreement. Pursuant to and in accordance with City's Growth
Management Ordinance set forth in Municipal Code section 9-2.325 establishing annual
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allocations of building permits issued within the City, the City shall process an
application for the Project for those lots in the East Canyon area of the Project for an
allocation of not to exceed a total of 140 dwelling units consisting of 70 dwelling units in
year 2006 and 70 dwelling units in year 2007. Notwithstanding the procedures described
in Municipal Code section 9-2.325, City has determined that there will be sufficient
capacity under the City's Growth Management Ordinance and hereby authorizes Owner
or its successors in interest, as a matter of right, to obtain building permits for those
remaining allocated dwelling units which are not actually constructed during years 2006
and 2007, in successive years on an as needed basis. The Parties acknowledge and agree
that the 15 custom home lots in the West Canyon area of the Project will be processed
pursuant to the City's Growth Management Ordinance, Municipal Code section
9-2.325(d)(3).
5.5 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 Amended Agreement. Owner will reimburse City for all reasonable costs
incurred in providing such assistance.
5.6 Compliance with Government Code Section 66473.7.
Pursuant to Government Code section 65867.5, any tentative subdivision map processed
with respect to the development of the Property shall comply with the provisions of
Government code section 66473.7, if determined to be applicable to the Project.
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6. PUBLIC IMPROVEMENTS AND PUBLIC BENEFITS.
6.1 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 the Existing Development Approvals and the certified FEIR.
6.2 Phasing; of Public Tmprovements. Although Owner may
determine the timing of development of the construction of individual residential
dwelling units on the Project as provided in Section 5.4 above, the Public Improvements
may be completed in one or more phases as outlined above and in accordance with the
Existing Development Approvals and as required to serve the particular increment of
development as determined necessary by the City Engineer.
6.3 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 Amended Agreement and do not constitute
amendments to the Amended Agreement.
6.4 Financing; for Public Improvements. From time to time,
Owner may propose to City use of public district financing, including but not limited to,
Mello -Roos Community Facilities Districts ("CFDs") to facilitate the construction or
acquisition of Public Improvements to be constructed and financed by the Project. City
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agrees to consider such proposals, and to use its best efforts to cause the establishment of
a CFD if so requested by Owner.
6.5 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 Amended Agreement.
6.6 Reimbursement Agreements. To the extent that Owner is
required by City, as a condition of approval for the CDP 04-01 or other Existing
Development Approvals or Subsequent Development Approvals to construct, install or
otherwise provide financing for public facilities or other infrastructure improvements not
required to serve the Project benefiting lands within the City outside the Property, City
shall adopt such ordinances as are necessary to create a benefit district by which a fee,
assessment or charge will be imposed upon such other properties and reimbursed to
Owner for the pro -rata share of the benefits conferred upon such Owner lands other than
property by such public facilities or infrastructure improvements and shall enter into a
reimbursement Agreement with Owner pursuant to such ordinance, setting forth the
mechanism for the repayment of such costs to the Owner.
6.7 Public Benefit Payment to the City. Owner shall pay City a
lump sum of not less than ten percent (10%) of the total value of the Community
Facilities District (CFD) bond proceeds, either from proceeds of the community facilities
district financing identified in Section 6.4, or as otherwise provided by Owner at such
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time the Community Facilities District (CFD) bonds have been issued and funded. The
payment will fund infrastructure and other public improvements beyond conditions of
approval. Use of the funds shall be at the sole discretion of the City Council.
6.8 Public Benefits to and Easement Amended Agreement with
the Counly of Orange Relating to Avenida La Pata and Trail Improvements. Owner and
City agree to cooperate with the County of Orange ("County") in the planning, design,
construction and implementation of the ultimate improvements to Avenida La Pata and
related improvements adjacent to and in the vicinity of the Property and the provision of
right-of-way for Regional Riding and Hiking Trail improvements in the vicinity of the
Property, as set forth below.
(i) Within sixty days of Owner receiving written notice from
the County, Owner shall irrevocably offer to dedicate in fee
for Regional Riding. and Hiking Trail improvement
purposes, sixteen feet of right-of-way along the length of
the Property from the southerly most portion of the
Property through the planned access road that will connect
the Property to Avenida La Pata from. the existing
right-of-way limits of La Pata Avenue.
(ii) Within 60 days of Owner receiving written notice from the
County, Owner shall irrevocably offer to dedicate in fee
fifty feet of right-of-way from the proposed access road to
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the northern boundary of the Property for ultimate
improvements to Avenida La Pata (including but not
limited to adjacent slope areas).
(iii) Owner shall grant to County a non-exclusive,
nontransferable license and right of entry over, on and
under the portion of the Property described as the Easement
Amended Agreement No. D05-045 between the Owner and
County. Said Easement Amended Agreement shall not
become effective until and unless this Development
Amended Agreement becomes effective and shall, among
other things, allow County the use of the entire Parcel
adjacent to La Pata Avenue to grade and construct slopes in
support of the implementation of Avenida La Pata to its
ultimate Master Plan of Arterial Highways (MPAH)
standard. Prior to relinquishment of Project improvement
bonds, Owner shall obtain written concurrence from. the
Resources Development Management Department
Director, County of Orange, providing to City evidence that
Owner. has complied with the dedication requirements of
Amended Agreement No. D05.045.
As provided for herein and in consideration of Owner's provision of the
benefits to the County described in this Section, the Project shall be exempt from the
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payment to County of any and all existing or future traffic and transportation
improvement fees, including but not limited to any and all Major Thoroughfare and
Bridge Improvement Regional Pee Programs ("Fee Programs") presently enacted or
adopted in the future by the Orange County Board of Supervisors, including, but not
limited to a Pee Program adopted with respect to the feature extension of Avenida La Pata.
County has committed to City and Owner that it shall perform all required
grading and do all things necessary or required on said parcel per the plans and
specifications for the Avenida La Pata widening program and related trail projects. The
County also acknowledges and represents to City and Owner that it has specifically
agreed that in undertaking the Avenida La Pata project, the County will use its best
efforts to re -contour the hills and knoll that provide a visual and sound buffer between
Avenida La Pata and the Project to the condition existing prior to the commencement of
any activities associated with County's project.
7. ANNUAL REVIEW.
7.1 City and Owner Responsibilities. City shall review this
Amended Agreement at least once every twelve (12) months during the tern of this
Amended Agreement to determine the good faith substantial compliance by Owner with
the terms of this Amended Agreement (the "Annual Review") pursuant to Government
Code section. 65865.1. and applicable City ordinances. During each Annual Review,
Owner shall submit to City a report ("Annual Review Report") within thirty (3 0) days of
each anniversary date of this Amended Agreement demonstrating its good faith
substantial compliance with the terms of this Amended Agreement, and shall furnish such
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reasonable evidence of good faith substantial compliance as the City may require in the
exercise of its reasonable discretion. At the conclusion of the Annual Review, the City's
finding of good faith compliance by Owner with the terms of the Amended 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.
7.2 Review Letter. if Owner is found to be in compliance with
the Amended Agreement after the Annual Review, City shall issue, upon written request
by Owner, a letter to Owner (the "Annual 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 Amended Agreement remains in effect and Owner is not in
Default.
7.3 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 Amended Agreement is in full force and effect
and is a binding obligation of the Parties.
(ii) The Amended Agreement has not been amended or
modified either orally or in writing or, if so
amended, identifying the amendments.
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(iii) No Default in the performance of the requesting
Party's obligations under the Amended 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 may be relied on by assignees and
Mortgagees.
7.4 Failure of Annual Review. City's failure to review at least
annually (as described herein) Owner's compliance with the terms and conditions of this
Amended Agreement shall not constitute or be asserted by City as an Owner Default.
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8. DEFAULT AND REMEDIES.
8.1 Performance Remedy. Owner has invested significant time
and resources and performed extensive planning and processing of the Project in agreeing
to the terns of this Amended Agreement and will be investing even more significant time
and resources in implementing the Project in reliance upon the terms of this Amended
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 Amended
Agreement. Therefore, specific performance of this Amended Agreement is the only
remedy which would compensate Owner if City fails to carry out its obligations under
this Amended Agreement, and City hereby agrees that Owner shall be entitled to seek
specific performance in the event of a default by City hereunder.
8.2 Applicable. Laws/Attome 's Pees. The Amended
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 Amended 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..
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9. ENCUMBRANCES AND RELEASES ON PROPERTY.
9.1 Discretion to Encumber. The Amended 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 Amended Agreement and City agrees, upon request, from time to time, to meet
with Owner and/or representatives of leaders to negotiate in good faith any lender request
for modification. City agrees to not withhold unreasonably its consent to any leader
requested modification to the Amended Agreement.
9.2 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.
9.3 Pro ertSubject 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 Amended Agreement
against the Property and which accrue prior to the time the person or entity comes into
possession.
10. MISCELLANEOUS PROVISIONS.
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10.1 . Rules of Construction. The singular includes the plural; the
masculine, gender includes the feminine; "shall is mandatory; "may" is permissive.
10.2 Severability. If any non -material provision of the
Amended 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
Amended Agreement. In the event a material part of the Amended Agreement is
adjudged by a court of competent jurisdiction to be invalid, void or illegal, the entire
Amended 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 Amended
Agreement. if any portion of the Amended 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 Amended Agreement or that portion
which is adjudged to be unenforceable.
10.3 Entire Amended A eement Waivers and Amendments.
This Amended Agreement constitutes the entire understanding and Amended Agreement
of the Parties with respect to the subject matter of this Amended Agreement. This
Amended Agreement supersedes all negotiations and previous Amended Agreements
between. the Parties with respect to that subject matter. All waivers of the provisions of
this Amended Agreement must be in writing and signed by the appropriate agents of City
or of Owner. All amendments to this Amended 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,
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a copy of this Amended Agreement shall be recorded in the Official Records of Orange
County, California. Upon the completion of performance of this Amended 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.
10.4 Project as a Private Undertakin . 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 Amended
Agreement.
10.5 Inco oration of Recitals . The Recitals set forth in this
Amended Agreement are made a part of this Amended Agreement.
10.6 Ca_ptions. The captions of this Amended 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 Amended Agreement.
10.7 Consent. Where the consent or approval of a Party is
required in or necessary under this Amended Agreement, the consent or approval shall
not be unreasonably withheld.
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1.0.5 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 Amended Agreement. Each Party shall refrain from
doing anything which would render its performance under this Amended Agreement
impossible. Each Party shall do everything which this Amended Agreement contemplates
that such Party shall do to accomplish the objectives and purposes of this Amended
Agreement.
10.9 Covenant of Cooperation. The Parties shall cooperate with
and assist each other in the performance of the provisions of this Amended 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 Amended Agreement.
10.10 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 Amended Agreement and the satisfaction
of the conditions of this Amended 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 Amended Agreement to carry out the intent
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and to fulfill the provisions of this Amended Agreement or to evidence or consummate
the transactions contemplated by this Amended Agreement.
10.11 Successors and Assigns. Subject to Section 4.2, the burdens
of this Amended Agreement shall be binding upon, and the benefits of the Amended
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.
10.12 Third Party Beneficiary. The County of Orange is a Third
Party Beneficiary of this Development Amended Agreement pursuant to Section 6.8
herein.
10.13 Notices. All notices required or permitted by this Amended
Agreement shall be in writing and may be delivered in person (by hand delivery or
professional messenger service) to either Party or may be sent by registered or certified
mail, with postage prepaid, return receipt requested or delivered by Express Mail of the
U.S. Postal Service or Federal Express or any other courier service guaranteeing
overnight delivery, charges prepaid, or may be transmitted by facsimile transmission and
addressed as follows:
To City: City Clerk/City Manager
City of San Tuan Capistrano
32400 Paseo Adelanto
San Juan Capistrano, CA 92675
Telephone: (949) 493-1171
Facsimile: (949) 493-1053
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With a copy to: Community Development Director
City of San Juan Capistrano
32400 Paseo Adelanto
San Juan Capistrano, CA 92675
Telephone: (949) 493-1171
Facsimile: (949) 661-5451.
To Owner: Rancho San Juan Developmwnt, LLC
c/o Woodbridge Homes
27285 Las Ramblas, #230
Mission Viejo, CA 92691-6325
Telephone: (949) 348-8162
Any such notice sent by registered or certified mail, return receipt requested, shall be
deemed to have been duly given and received seventy-two (72) hours after the same is so
addressed and mailed with postage prepaid. Notices delivered by overnight service shall
be deemed to have been given twenty-four (24) hours after delivery of the same, charges
prepaid, to the U.S. Postal Service or private courier. If any notice is transmitted by
facsimile transmission or similar means, the same shall be deemed served or delivered
upon confirmation of transmission thereof. Any notice or other document sent by any
other manner shall be effective only upon actual receipt thereof Any Party may change
its address for purposes of this paragraph by giving notice to the other Party as provided
herein.
10.14 Recording. The City Clerk shall cause a copy of the
Amended Agreement to be recorded with the Office of the County Recorder of Orange
County, California within ten (10) days following the Effective Date.
10.15 Effective Date. This Amended Agreement shall not take
effect and no rights or obligations contained herein shall vest or inure to the benefit of
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any Party hereto until the Operative Date of the ordinance specified in Section 1.8 of this
Amended Agreement pursuant to Government Code Section 65867.5 and the completion
of any referendum process initiated thereunder.
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This Amended Agreement has been executed by the Parties as of
the date set forth next to their respective signatures.
Dated: CITY OF SAN JUAN CAPISTRANO, a municipal
corporation
Mark Nielsen, Mayor
ATTEST:
Maria. Morris, Deputy City Clerk
APPROVED AS TO FORM:
Omar Sandoval, City Attorney
Dated: RANCHO SAN JUAN DEVELOPMENT, LLC, a
Delaware limited liability Company
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Todd Cunningham
Managing Member
State of �)
County of
On before me, personally
appeared , personally known to me - OR -
proved to me on the basis of satisfactory evidence to be the person(s) whose name(s)
is/are subscribed to the within instrument and acknowledged to me that he/she/they
executed the same in his/her/their authorized capacity(ies), and that by his/her/their
signature(s) on this instrument the person(s), or the entity upon behalf of which the
persons acted, executed the instrument.
WITNESS my hand and official seal.
Notary Public
State of
County of
On before me, personally
appeared , personally known to me - OR -
proved to me on the basis of satisfactory evidence to be the person(s) whose nae(s)
is/are subscribed to the within instrument and acknowledged to me that he/she/they
executed the same in his/her/their authorized capacity(ies), and that by his/her/their
signature(s) on this instrument the person(s), or the entity upon behalf of which the
persons acted, executed the instrument.
WITNESS my hand and official seal.
Notary Public
24902000
EXHIBIT "A"
LEGAL DESCRIPTIONS
I. MAIN PORTION OF THE PROPERTY
PARCEL X:
THAT PORTION OF SECTIONS 4, 5, 8 AND 9, TOWNSHIP 8 SOUTH, RANGE 7 WEST OF
THE SAN BERNARDINO BASE AND MERIDIAN, IN THE CITY OF SAN JUAN
CAPISTRANO, COUNTY OF ORANGE, STATE OF CALIFORNIA, ACCORDING TO THE
OFFICIAL PLAT OF SAID LAND FILED IN THE DISTRICT LAND OFFICE APRIL 12,
1875, DESCRIBED AS FOLLOWS:
COMMENCING AT A POINT OF THE SOUTHERLY LINE OF THE LAND DESCRIBED IN
PARCEL 2 OF A DEED TO CLARENCE C. REED AND MARGARET U. REED, HUSBAND
AND WIFE, RECORDED JUNE 8, 1956, IN BOOK 3538, PAGE 550 OF OFFICIAL
RECORDS, SAID POINT BEING SOUTH 86° 09'20" EAST 1078.60 FEET FROM THE
WESTERLY TERMINUS OF THAT CERTAIN COURSE DESCRIBED IN SAID DEED AS
"SOUTH 86" 09'20" EAST 2306.60 FEET"; THENCE LEAVING SAID BOUNDARY LINE,
NORTH 250 00'00" EAST 1690.00 FEET; THENCE NORTH 34° 59'45" EAST 1501.80 DEET;
THENCE NORTH 420 00'00" WEST 1624.40 FEET; THENCE, SOUTH 87° 03,41 " EAST
770.02 FEET TO THE TRUE POINT OF BEGINNING; THENCE SOUTH. 87° 03'41 " EAST
835.00 FEET; THENCE NORTH 391 00'00" EAST 1440.00 FEET; THENCE NORTH 63° 00'
00" EAST 940.00 FEET TO A POINT ON THE SOUTHWESTERLY LINE OF THE RANCHO
MISSION VIEJO, SAID POINT BEING SOUTH 20° 02'23" EAST 4500.00 FEF,T FOR THE.
SOUTHEASTERLY CORNER OF THE LAND DESCRIBED IN A DEED TO PIERRE
LACOUASUE, RECORDED OCTOBER 15, 1927, IN BOOK 99, PAGE 5 OF OFFICIAL
RECORDS; THENCE NORTH 200 02'23" WEST. ALONG SAID SOUTHWESTERLY LINE,
4500.00 FEET TO SAID SOUTHEASTERLY CORNER OF THE LAND OF LACOUASUE;
THENCE SOUTH 70c'02'00" WEST 2866.50 FEET TO THE MOST SOUTHERLY CORNER
OF SAID LACOUASUE, SAID POINT ALSO BEING THE MOST EASTERLY CORNIER OF
THE LAND DESCRIBED IN A DEED TO PAUL HERBOLD, RECORDED SEPTEMBER 5,
1957, IN BOOK 4026, PAGE 483 OF OFFICIAL RECORDS; THENCE SOUTH 31° 22'28"
WEST 500.42 FEET TO THE MOST SOUTHERLY CORNER OF SAID LAND OF
HERBOLD; THENCE SOUTH 161 07'56" WEST 1355.04 FEET TO A POINT ON THE
EASTERLY PROLONGATION OF THAT CERTAIN COURSE DESCRIBED IN A DEED TO
LOUIS ROMOFF AND WIFE, RECORDED NNE 12, 1943, IN BOOK 1189, PAGE 508 OF
OFFICIAL RECORDS, AS "SOUTH 80" 30'00" WEST 966.50 FEET", SAID POINT BEING
NORTH 80" 30'00" EAST 500.00 FEET FROM THE EASTERLY TERMINUS OF SAID
COURSE; THENCE SOUTH 80° 30'00" WEST ALONG SAID PROLONGATION, 201.62
FEET; THENCE SOUTH 400 10'01 " EAST 3814.50 FEET, MORE OR LESS TO THE TRUE
POINT OF BEGINNING.
EXCEPTING THEREFROM AN UNDIVIDED ONE—HALF INTEREST IN AND TO THE
RESERVOIR SITE DESCRIBED AS BEGINNING AT THE SOUTHERLY TERMINUS OF
THE COURSE IN THE EASEMENT DESCRIBED IN PARCEL 2 OF DEED RECORDED
NOVEMBER 10, 1953, IN BOOK 2610, PAGE 129 OF OFFICIAL RECORDS AS "SOUTH
46° 28'95 FEET"; THENCE NORTH 55° I2' EAST 120.50 FEET; THENCE SOUTH 34° 48'
EAST 78.00 FEET; THENCE SOUTH 55° IT WEST 120.50 FEET TO THE CENTERLINE OF
SAID EASEMENT HEREINBEFORE MENTIONED; THENCE NORTH 34'48' WEST
ALONG SAID EASEMENT CENTERLINE 78.00 FEET TO THE POINT OF BEGINNING.
ALSO EXCEPTING THAT PORTION THEREOF INCLUDED WITHIN THE LAND
DESCRIBED IN DEED TO SAN DIEGO GAS & ELECTRIC COMPANY, RECORDED
MARCH 4, 1.964 IN BOOK 6948, PAGE 462 OF OFFICIAL RECORDS.
ALSO EXCEPTING THEREFROM THAT PORTION DESCRIBED IN PARCEL GA 1236
5.01 OF DEED TO THE COUNTY OF ORANGE RECORDED SEPTEMBER 23, 1982, AS
INSTRUMENT NO. 82-334432 OF OFFICIAL RECORDS.
ALSO EXCEPTING THEREFROM THAT PORTION OF THE DEED TO THE CAPISTRANO
UNIFIED SCHOOL DISTRICT BY GRANT DEED RECORDED APRIL 30, 2003 AS
INSTRUMENT NO. 2003000487413 OF OFFICIAL RECORDS.
ALSO EXCEPTING 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 THEREFROM, AS RESERVED BY
HOWARD L. KRUM AND FAY WILSON KRUM, HUSBAND AND WIFE, BY DEED
RECORDED JUNE 8, 1956, IN BOOK 3538, PAGE 550 OF OFFICIAL RECORDS, AND RE
RECORDED JULY 20, 1956, IN BOOK 3584, PAGE 339 OF OFFICIAL RECORDS.
1.615,M3N.3t:IN
AN EASEMENT FOR ROAD PURPOSES OVER THOSE PORTIONS OF SECTIONS 4 AND
5, TOWNSHIP 8 SOUTH, RANGE 7 WEST, IN THE SAN BERNARDINO MERIDIAN, IN
THE CITY OF SAN JUAN CAPISTRANO, COUNTY OF ORANGE, STATE OF
CALIFORNIA, BEING THOSE CERTAIN STRIPS OF LAND 60.00 FEET IN WIDTH,
LYING 30 FEET, MEASURED AT RIGHT ANGLES ON EACH SIDE OF THE FOLLOWING
DESCRIBED CENTERLINES:
PARCEL 2A:
BEGINNING AT CORNER NO. 3 OF RANCHO MISSION VIEJO, OR LA PAZ,
ACCORDING TO THE MAP RECORDED DECEMBER 19, 1867, IN BOOK 1, PAGES 63
AND 64 OF PATENTS, RECORDS OF LOS ANGELES COUNTY, CALIFORNIA; THENCE
SOUTH 200 00' 28" EAST, ALONG THE WESTERLY BOUNDARY LINE OF SAID
RANCHO MISSION VIEJO OR LA PAZ, A DISTANCE OF 5926.28 FEET TO A POINT
THEREIN, HEREINAFTER KNOWN AND DESIGNATED AS POINT "A", SAID POINT "A"
ALSO BEARS SOUTH 200 00' 28" EAST, A DISTANCE OF 41.86 FEET FROM THE POINT
OF INTERSECTION OF THE NORTH LINE OF SECTION 9, OF SAID TOWNSHIP 8
SOUTH, RANGE 7 WEST, WITH SAID WESTERLY BOUNDARY LINE OF SAID
RANCHO MISSION VIEJO OR LA PAZ; THENCE FROM SAID POINT "A" NORTH 68c26'
1.8" WEST A DISTANCE OF 1090.00 FEET TO A POINT, WHICH POINT IS THE TRUE
POINT OF BEGINNING; THENCE FROM SAID TRUE POINT OF BEGINNING NORTH 21.°
33' 42" EAST A DISTANCE OF 100.00 FEET TO THE NORTHEASTERLY LINE OF THE
LAND DESCRIBED IN PARCEL 2 OF DEED RECORDED MARCH 4, 1964 IN BOOK 6948,
PAGE 462 OF OFFICIAL RECORDS OF ORANGE COUNTY, CALIFORNIA.
ALSO: BEGINNING AT THE LAST MENTIONED TRUE POINT OF BEGINNING;
THENCE SOUTH 21" 33'42" WEST A DISTANCE OF 50.00 FEET TO THE
SOUTHWESTERLY LINE OF THE LAND DESCRIBED IN SAID PARCEL 2.
PARCEL 2B.-
BEGINNING
B:
BEGINNING AT CORNER NO. 3 OF RANCHO MISSION VIEJO OR LA PAZ,
ACCORDING TO THE MAP RECORDED DECEMBER 19, 1867, IN BOOK 1, PAGES 63
AND 64 OF PATENTS, RECORDS OF LOS ANGELES COUNTY, CALIFORNIA; THENCE
SOUTH 20" 00'28" EAST, ALONG THE WESTERLY BOUNDARY LINE OF SAID
RANCHO MISSION VIEJO OR LA PAZ, A DISTANCE OF 5926.28 FEET TO A POINT
2
THEREON, HEREINAFTER KNOWN AND DESIGNATED AS POINT "A", SAID POINT
"A" ALSO BEARS SOUTH 20" 00'28" EAST A DISTANCE OF 41.86 FEET FROM THE
POINT OF INTERSECTION OF THE NORTH LINE OF SECTION 9, OF SAID TOWNSHIP 8
SOUTH, RANGE 7 WEST WITH THE SAID WESTERLY BOUNDARY LINE OF SAID
RANCHO MISSION VIEJO OR LA PAZ; THENCE FROM SAID POINT "A" NORTH 68'26'
18" WEST A DISTANCE OF 2700.00 FEET TO THE TRUE POINT OF BEGINNING;
THENCE FROM SAID TRUE POINT OF BEGINNING, NORTH 8° 26' 18" WEST A
DISTANCE OF 115.47 FEET TO THE NORTHEASTERLY LIME OF THE LAND
DESCRIBED IN PARCEL 2 OF THE DEED RECORDED MARCH 4, 1964, IN BOOK 6948,
PAGE 462 OF OFFICIAL RECORDS OF ORANGE COUNTY, CALIFORNIA.
ALSO: BEGINNING AT THE LAST MENTIONED TRUE POINT OF BEGINNING;
THENCE SOUTH 8" 26'18" EAST A DISTANCE OF 57.73 FEET TO THE
SOUTHWESTERLY LINE OF THE LAND DESCRIBED IN SAID PARCEL 2.
THE SIDELINES OF THE ABOVE DESCRIBED 60.00 .FOOT WIDE ROAD EASEMENTS
SHALL BE PROLONGED AND/OR SHORTENED SO AS TO TERMINATE IN THE
BOUNDARIES OF THE LAND DESCRIBED INT SAID PARCEL 2.
ASSESSORS PARCEL NOS. 124-140-49, 124-140-50, 124-140-51, 124-140-53, 124-223-23,
124-223-45
11. ANNEXATION PORTION OF THE PROPERTY
All of that portion of land lying within the unincorporated territory of the County of
Orange, State of California, being a portion of Parcel I of Lot Line Adjustment LL 2003-
004, recorded as Instrument No. 2003-294469, Official Records of said county, as more
particularly described as follows:
Beginning at Rancho Mission Viejo Corner # 3, said point being Orange County
Surveyor's Horizontal Control Station G.P.S. No. 4404, having a coordinate values (U.S.
Survey Foot) of North 2133123.106 and East of 6142442.702 based upon the California
Coordinate System (CCS83), Zone VI 1983 NAD, (1991.35 epoch O.C.S. GPS
Adjustment) per records on file on the Office of the Change County Surveyor; said point
being on the existing City of San Juan Capistrano Boundary as created by
"Incorporation";
Thence southerly along said existing boundary line, South 20°02'23" East 3177.31 feet to
the northwest corner of Parcel 1 of said Lot Line Adjustment LL2003-004, said point
being South 20°02'23" East 7.92 feet from the southeast corner of "Reorganization # 61
(Lacouague Ranch) to the City of San Juan Capistrano", said point also being the True
Point of Beginning;
Thence leaving said existing boundary and continuing along the boundary of said Parcel
1, North 67'28'19" East 200.02 feet to a point on the existing right-of-way line of La
Pata Avenue as recorded in Instrument No. 19980260408, O.R.;
Thence continuing southerly along said right-of-way line the following courses:
a) South 20°02'23" East 265.25 feet;
b) Thence, South 56°19'45" East 126.51 feet to a line that is parallel and
concentric with and 20 feet southwesterly to the existing southwesterly
line of La Pata Avenue (100 feet wide);
Thence along said parallel and concentric lines the following courses:
a) South 22°31'41" East 1238.66 feet to the beginning of a tangent curve,
concave northeasterly, having a radius of 3070.00 feet;
b) Thence southeasterly along said curve, an arc distance of 61.19 feet
through a central angle of 1'08'3 1 ";
c) Thence tangent to said curve, South 23'40'12" East 141.2.00 feet to the
beginning of a tangent curve, concave southwesterly, having a radius
of 2930.00 feet;
d) Thence southeasterly along said curve, an arc distance of 387.94 feet
through a central angle of 7°35' 10";
4
e) Thence tangent to said curve, South 16°05'02" East 431.74 feet to the
beginning of a tangent curve, concave northeasterly, having a radius of
1670.00 feet;
fj Thence southeasterly along said curve, an are distance of 191.25 feet
through a central angle of 6°33'41";
Thence leaving said parallel and concentric line and continuing along the southeasterly
line of said Parcel 1 of said Lot Line Adjustment LL2003-004, South 52°21'26" West
407.07 feet to a point on the existing City of San Juan Capistrano boundary line as
created by "Incorporation";
Thence continuing along said existing city boundary line, North 20°02'23" Nest 4198.76
feet to the True Point of Beginning.
This area contains 33.00 acres, more or less.
Unless otherwise noted all bearings and distances in this description are ground based
upon the California Coordinate System, (CCS 83) Zone VI NAD 83 (1991.35 epoch
O.C.S. GPS Adjustment) per records on file on the Office of the Orange County
Surveyor. To obtain grid distance, multiply the ground distance by 099994996.
5
EXHIBIT "B"
MAP OF THE PROPERTY
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