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EXHIBIT 2.4
CENTEX DEVELOPMENT COMPANY, L.P.
FORSTER RANCH DEVELOPMENT AGREEMENT
BY AND BETWEEN
CITY OF SAN CLEMENTE
AND
CENTEX DEVELOPMENT COMPANY, L. P.
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TABLE OF CONTENTS
PAGE
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ARTICLE 1. DEFINED TERMS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
1.01 Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
1.02 Additional Defined Terms . . . . . . . . . . . . . . . . . . . . . . . . 8
ARTICLE 2. DEVELOPMENT OF THE PROPERTY . . . . . . . . . . . . . . . . . . . . . . 9
2.01 Development of the Property . . . . . . . . . . . . . . . . . . . . . . 9
2.01.1 CDC's Right to Develop . . . . . . . . . . . . . . . . . . . . 9
2.01.2 Police Power . . . . . . . . . . . . . . . . . . . . . . . . . 9
2.01.3 State and Federal Laws . . . . . . . . . . . . . . . . . . . . 10
2.02 Permitted Uses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
2.03 Density and Intensity of Use . . . . . . . . . . . . . . . . . . . . . . 11
2.04 Zoning . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
2.05 Revised Tentative Map 12895 . . . . . . . . . . . . . . . . . . . . . . . 11
2.05.1 Applicable Law . . . . . . . . . . . . . . . . . . . . . . . . 11
2.05.2 Development Allocations . . . . . . . . . . . . . . . . . . . . 14
2.06 Measure B . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
2.06.1 Stipulated Judgment . . . . . . . . . . . . . . . . . . . . . . 14
2.06.2 Changes to Measure B . . . . . . . . . . . . . . . . . . . . . 16
ARTICLE 3. OBLIGATIONS OF CDC . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
3.01 General . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
3.02 Storm Drain . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
3.02.1 Construction and Maintenance . . . . . . . . . . . . . . . . . . 16
3.02.2 Plans and Specifications . . . . . . . . . . . . . . . . . . . . 20
3.02.3 Construction . . . . . . . . . . . . . . . . . . . . . . . . . . 21
3.02.4 Funding . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
(a) Letters of credit . . . . . . . . . . . . . . . . . . . . 22
(b) Construction funding . . . . . . . . . . . . . . . . . . . 25
3.02.5 Waiver of Fees . . . . . . . . . . . . . . . . . . . . . . . . . 29
3.02.6 Master Plan Facilities
Reimbursement Agreement . . . . . . . . . . . . . . . . . . . . 29
3.03 Traffic Improvements . . . . . . . . . . . . . . . . . . . . . . . . . . 29
3.04 Affordable Housing . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
3.05 Park Improvements . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
(i) Baseball Park and Phase 1 Park
Improvements . . . . . . . . . . . . . . . . . . . . . . . . . . 34
(ii) Subsequent Phases of Improvements . . . . . . . . . . . . . . . 36
(iii) Prepayment . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
3.06 Development Fees and Taxes . . . . . . . . . . . . . . . . . . . . . . . 38
3.06.1 Planned Drainage Facilities Fee . . . . . . . . . . . . . . . . 38
3.06.2 Sanitary Sewer Connection Fees . . . . . . . . . . . . . . . . . 39
3.06.3 Park Fees . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
3.06.4 Other Fees, Charges, and Taxes . . . . . . . . . . . . . . . . . 40
3.07 Reservoir . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
3.08 Option to City to Acquire Civic
Center Site . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
3.08.1 Determination of Boundaries . . . . . . . . . . . . . . . . . . 41
3.08.2 Option Fee and Purchase Price . . . . . . . . . . . . . . . . . 42
3.08.3 Option Period . . . . . . . . . . . . . . . . . . . . . . . . . 42
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3.08.4 Manner of Exercise of Option . . . . . . . . . . . . . . . . . . 43
3.08.5 Condition of Title . . . . . . . . . . . . . . . . . . . . . . . 44
3.08.6 Escrow Fees and Closing Costs . . . . . . . . . . . . . . . . . . 45
3.08.7 Right of Entry . . . . . . . . . . . . . . . . . . . . . . . . . 45
3.08.8 Physical Condition of the
Civic Center Site . . . . . . . . . . . . . . . . . . . . . . . 46
3.08.9 Close of Escrow . . . . . . . . . . . . . . . . . . . . . . . . 48
3.08.10 Wastewater Treatment Capacity . . . . . . . . . . . . . . . . . 48
ARTICLE 4. IMPLEMENTATION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
4.01 Processing and Approvals . . . . . . . . . . . . . . . . . . . . . . . . 49
4.02 Conditions of Approval Regarding
Specific Plan . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
4.03 Tentative Map Extensions . . . . . . . . . . . . . . . . . . . . . . . . 51
4.04 Other Governmental Permits . . . . . . . . . . . . . . . . . . . . . . . 51
ARTICLE 5. AMENDMENT OF AGREEMENT . . . . . . . . . . . . . . . . . . . . . . . . . 52
ARTICLE 6. ANNUAL REVIEW; DEFAULT; TERMINATION . . . . . . . . . . . . . . . . . . . 52
6.01 Annual Review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
6.02 Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
6.02.1 Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
6.02.2 Force Majeure . . . . . . . . . . . . . . . . . . . . . . . . . 54
6.02.3 No Obligation to Develop . . . . . . . . . . . . . . . . . . . . 54
6.02.4 Remedies . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
6.03 Termination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
ARTICLE 7. MISCELLANEOUS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
7.01 Term . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
7.02 Settlement/Development Agreement . . . . . . . . . . . . . . . . . . . . 56
7.03 Transfer of Property . . . . . . . . . . . . . . . . . . . . . . . . . . 56
7.04 Mortgagee Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
7.04.1 Definition of Mortgagee . . . . . . . . . . . . . . . . . . . . 57
7.04.2 Default Rights . . . . . . . . . . . . . . . . . . . . . . . . . 58
7.05 Cascadita Landslide . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
7.06 Notice . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
7.07 Parties In Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
7.08 No Partnership . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
7.09 Cooperation in the Event of Legal
Challenge. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
7.10 Entire Agreement; Recordation . . . . . . . . . . . . . . . . . . . . . . 62
7.11 Severability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62
7.12 Successors and Assigns; Survival of
Representations, Warranties, and
Indemnity Obligations . . . . . . . . . . . . . . . . . . . . . . . . . . 63
7.13 Applicable Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
7.14 Attorney's Fees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
7.15 Estoppel Certificates . . . . . . . . . . . . . . . . . . . . . . . . . . 64
7.16 Reasonableness . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64
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EXHIBITS
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A Map of the Forster Ranch
B Legal Description of the Golf Course
C Land Use Parameters
D Legal Description of the Property
D-1 Map of the Property
E Storm Drain Concept Plan
F Stipulation for Judgment
G Draft Forster Ranch Park Site Master Plan
H Description of Portion of Site Within Which
Civic Center Site Can Be Located
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FORSTER RANCH DEVELOPMENT AGREEMENT
THIS DEVELOPMENT AGREEMENT is entered into as of March 31, 1989, by and
between the CITY OF SAN CLEMENTE, a municipal corporation ("City"), and CENTEX
DEVELOPMENT COMPANY, L.P., a Delaware limited partnership ("CDC").
R E C I T A L S:
A. To strengthen the public planning process, encourage
private participation in comprehensive planning and reduce the economic risk of
development, the Legislature of the State of California adopted the Development
Agreement Statute. The Development Agreement Statute authorizes City to enter
into an agreement with any individual or entity having a legal or equitable
interest in real property in order to establish development rights for such
property.
B. Pursuant to an Option Agreement dated as of November 3, 1988,
CDC has acquired the right to purchase the "Property" (defined below) from
"Estrella" (defined below). The Property is part of a larger parcel of land
known as the "Forster Ranch" (defined below).
C. In the late 1970's, disputes arose between Estrella and City
regarding the intensity and timing of Forster Ranch development, and the nature
and extent of the fees,
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dedications, improvements, and other conditions required or imposed by City
with respect to such development. With reference to these disputes, Estrella
filed three separate lawsuits against City and various officials and employees
of city. The parties settled these lawsuits, with minor exceptions, pursuant to
the "Settlement/Development Agreement" (defined below).
D. The Settlement/Development Agreement permits construction of a
total of 3,359 residential dwelling units on the Forster Ranch, establishes
prescribed time periods for City action on certain development approval
applications, proscribes certain city actions, subject to other terms and
conditions of the Settlement/Development Agreement, which actions would render
development of the Property "infeasible," and imposes other restrictions on
City's exercise of its discretionary authority with respect to development of
the Forster Ranch. The Settlement/Development Agreement also sets forth
Estrella's obligations with respect to annexation fees, drainage fees and
facilities, sewer connection fees, parkland dedication and in-lieu fees,
certain street improvements, provision of affordable housing, and other matters
pertaining to the development of the Forster Ranch.
E. On October 1, 1986, the City Council of the City of San
Clemente adopted its Resolution No. 86-101 amending Specific Plans 80-3 and
80-7 for the "Development Area"
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(defined below) and approving Specific Plan 83-1 for the "Planning Area"
(defined below) (collectively, the "Forster Ranch Specific Plan"). An
environmental impact report for the Forster Ranch Specific Plan (EIR No. 84-01)
was prepared in accordance with the provisions of the California Environmental
Quality Act ("CEQA") and certified by City as adequate and complete pursuant to
Resolution No. 86-99 on October 1, 1986.
F. On April 20, 1988, the City Council adopted its Resolution No.
88-28 approving Tentative Tract Map 12895 and Site Plan Review 87-17, which
provide for the subdivision of approximately 99 acres of the Property into 397
lots (including 389 single-family residential lots) and development thereof,
subject to the conditions set forth in such resolution.
G. Estrella has filed two lawsuits against City which are now
pending and are described as follows:
Estrella Properties, Ltd. v. City of San Clemente, Orange
County Superior Court Case No. 49-04-07.
Estrella Properties, Ltd. v. City of San Clemente, et al.,
"United States District Court Case No. CV 86-3345 IH(Kx).
In these lawsuits, Estrella seeks a ruling that "Measure B" (defined
below) is either null and void or is not applicable to the Forster Ranch
because the Settlement Development Agreement precedes the adoption of Measure
B. CDC has represented to City that Estrella has agreed to
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assign all of its interests in these lawsuits to CDC as of the "Closing Date"
(defined below).
H. CDC has further represented to City that Estrella has agreed
to assign to CDC at the Closing Date all of Estrella's right, title, and
interest under those certain agreements relating to the Property to which
Estrella and City are parties which are referenced in Article 9 of the November
3, 1988, Option Agreement between Estrella and CDC, including without
limitation the Settlement/Development Agreement and the Agreement For
Construction Of Wastewater Treatment Facilities dated on or about October 3,
1984.
I. City and CDC desire to enter into this Agreement to supersede
those provisions of the Settlement/Development Agreement which have been
executed or which are no longer needed, to provide CDC with certain assurances
with respect to its future development rights concerning the Property, to
provide for the development of park and storm drain improvements, to provide
City with an option to acquire a portion of the Property for use as a future
civic center site, and otherwise to enhance the public health, safety, and
welfare of the residents of the City of San Clemente and foster certainty and
efficiency in the planning of future development of the Property.
NOW, THEREFORE, the parties agree as follows:
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ARTICLE 1
DEFINED TERMS
1.01 Definitions. The following terms used in this Agreement,
unless the context otherwise requires, shall have the meanings set forth in
this Section 1.01:
"Affordable Housing" shall mean equal numbers of Low, Moderate I, and
Moderate II units as defined in the Housing Element of the General Plan of the
City.
"CDC" shall mean Centex Development Company, L.P., a Delaware limited
partnership, whose sole general partner is 3333 Development Corporation, a
Nevada corporation, and any successors and assigns to the rights or obligations
of Centex Development Company, L.P., under this Agreement, as provided herein.
"Closing Date" shall mean the date on which the grant deed or deeds
is/are recorded conveying the Property from Estrella to CDC.
"Development Agreement Statute" shall mean Article 2.5 (commencing with
Section 65864) of Chapter 4 of Division 1 of Title 7 of the California
Government Code, as the same may be amended from time to time.
"District" shall mean the Orange County Flood Control District.
"Effective Date" shall mean the thirtieth day after the City Council
adopts an ordinance approving this Agreement.
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"Estrella" shall mean Estrella Properties, Ltd., a California limited
partnership, and any successors and assigns (other than CDC and successors and
assigns of CDC) to the rights of Estrella Properties, Ltd., under the
Settlement/Development Agreement or with respect to the Property.
"Forster Ranch" shall mean the approximately 1,774-acre area of the
City more particularly depicted in the "Map of the Forster Ranch" attached
hereto as Exhibit A. The Forster Ranch consists of the "Development Area" and
the "Planning Area," as shown in the Specific Plan described below.
"Golf Course" shall mean the Shorecliffs Golf Course located in the
City. A legal description of the Golf Course is attached hereto as Exhibit B.
"Land Use Parameters" shall mean the development parameters governing
development of the Property as described in Exhibit C to this Agreement.
"Litigation" shall mean the two lawsuits described in Recital G above.
"Measure B" shall mean that certain growth control initiative adopted
by City voters in 1986 and adopted by the City Council on March 5, 1986, as
Ordinance No. 922, as amended by Ordinance No. 931 adopted on September 17,
1986, by Ordinance No. 953 adopted on December 17, 1987, by Ordinance No. 991
adopted on February 1, 1989, and as may be further amended from time to time by
the City Council
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pursuant to Section 10 of Ordinance No. 922, provided that such amendment is
not inconsistent with any of the express provisions contained in this
Agreement.
"Property" shall mean the real property in the City consisting of an
approximately 1,077.2 acre portion of the Forster Ranch, as more particularly
described in the legal description attached hereto as Exhibit D. The Property
includes the so-called "Planning Area" (1,031 acres, more or less), Lot 25 in
Tract 11781, Lot 26 in Tract 11781, and 14 acres, more or less, in Lot 35 of
Tract 10417, which are depicted on the "Map of the Property" attached hereto
as Exhibit D-1.
"RCFPP" shall mean the Regional Circulation, Financing and Phasing
Program of the City which is being processed by City as of the Effective Date
of this Agreement, as the same may be amended from time to time, provided that
the RCFPP, including any amendments thereto, shall not be applied to the
Property to the extent it is not consistent with the express provisions
contained in this Agreement.
"Settlement/Development Agreement" shall mean that certain
Settlement/Development Agreement by and between Estrella and City dated August
5, 1981, as amended by that certain First Amendment to Settlement/Development
Agreement dated December 14, 1983, and that certain Second Amendment to
Settlement/Development Agreement by and among Estrella, City,
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and Shorecliffs which was approved by the City on July 20, 1988.
"Shorecliffs" shall mean Shorecliffs Golf Course, Inc., a California
corporation, and any successor and assign to the right, title, and interest of
Shorecliffs Golf Course, Inc., in and to the Golf Course or any portion
thereof, excepting only the owner of the Storm Drain and the owner of any
easement, license, right-of-way, or similar property interest relating to use
of the Golf Course for flood control and storm drain purposes.
"Specific Plan" shall mean the Forster Ranch Specific Plan prepared by
Tierra Planning & Design, Inc., dated October 1985 and approved by City on
October 1, 1986, including all conditions of approval (and any mitigation
measures required pursuant to such conditions).
"Revised Tentative Map 12895" shall mean that certain tentative map
revising Tentative Tract Map 12895, an application for which was filed with
the City on or about January 17, 1989, as the same may be approved by the
Council of City after City's approval of this Agreement, including all
conditions of approval (and any mitigaticn measures required pursuant to such
conditions).
1.02 Additional Defined Terms. To the extent capitalized terms are not
defined in Section 1.01, such terms shall have the meaning otherwise ascribed
to them in Agreement.
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ARTICLE 2
DEVELOPMENT OF THE PROPERTY
2.01 Development of the Property.
2.01.1 CDC's Right to Develop. During the term of this
Agreement, CDC shall have the vested right to develop the Property in
accordance with and subject to the terms and conditions set forth or referenced
in this Agreement.
2.01.2 Police Power. Except as otherwise expressly provided
herein, the City shall have the right to exercise its lawful police power
authority to regulate development of the Property, including without limitation
the adoption or application to the Property of laws, rules, regulations, and
policies in effect at the Effective Date and laws, rules, regulations, and
policies adopted or approved after the Effective Date. Without CDC's prior
written consent, no City ordinance, resolution, or other rule, regulation, or
policy adopted after the Effective Date, whether by action of the City Council,
by initiative, or otherwise, shall apply to the Property if and to the extent
that the same is inconsistent with any of the express provisions of this
Agreement. Nothing contained herein is intended to prevent the City from
applying to the Property any subsequently adopted City ordinances, resolutions,
or other rules, regulations, or policies which are not inconsistent with the
express provisions of this Agreement
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(including without limitation Sections 2.01.3 and 2.05 below).
2.01.3 State and Federal Laws. By entering into this
Agreement, CDC does not waive the benefit or protection of any rights it may
have under applicable state or federal laws or regulations that may apply to
the development of the Property from time to time, including without limitation
any laws applying the laws in effect at a given time in processing land use
applications such as Government Code Sections 66474.2 and 66498.1 through
66498.9, except to the extent that applying such laws and regulations to the
Property would be inconsistent with any of the express provisions of this
Agreement. In the event that state or federal laws or regulations, enacted
after the Effective Date, prevent or preclude compliance with one or more
provisions of this Agreement, such provisions of this Agreement shall be
modified or suspended as may be necessary to comply with such state or federal
laws or regulations.
2.02 Permitted Uses. The permitted uses of tne Property, the density
or intensity of use, the maximum height and size of proposed buildings, and
provisions for reservation or dedication of land for public purposes shall be
as set forth in this Agreement, including without limitation the Land Use
Parameters. It is specifically understood that the City reserves the right
after the Effective Date to amend the Specific Plan and other City
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laws, rules, regulations, and policies applicable to the Property under
procedures provided by law and such amendment or amendments shall be binding
on the Property except to the extent that the same conflict with the express
provisions of this Agreement.
2.03 Density and Intensity of Use. The maximum permitted density and
intensity of residential development on the Property will be 1,762 market rate
residential units and a number of multi-family Affordable Housing units equal
to 174 plus 15% of all market rate residential units constructed on the
Property. The City shall not reduce this maximum permitted density without
CDC's prior written consent, which CDC may grant or withhold in its sole
discretion. In addition, City shall permit commercial, industrial, and/or
mixed use development on a minimum of 57 gross acres contained in the Planning
Area and commercial development of Lot 25 in Tract 11781.
2.04 Zoning. The zoning of the Property throughout the term of this
Agreement shall be kept consistent with the permitted uses of the Property as
set forth or referenced in Sections 2.02 and 2.03, including such changes to
such permitted uses as are allowed in accordance with this Agreement.
2.05 Revised Tentative Map 12395.
2.05.1 Applicable Law. The City laws, rules, regulations, and
official policies governing design,
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improvement, development, and construction on the land described in Revised
Tentative Map 12895, and all on-site and off-site improvements and
appurtenances constructed in connection therewith, shall be those City laws,
rules, regulations, and official policies in force on the Effective Date of
this Agreement, except as follows:
(i) Section 2.01.3 shall prevail over this
Section 2.05 to the extent of any
inconsistency.
(ii) CDC shall comply with the most recently
adopted provisions of the Uniform Building,
Plumbing, Mechanical, Electrical, Fire, and
other uniform codes (including any generally
applicable local amendments thereto) in
effect at the time development actually takes
place.
(iii) The City reserves the right to require CDC to
comply with all conditions previously imposed
on the original tentative tract map for Tract
12895 and accompanying site plan which are
applicable to the revised project; provided,
however, that CDC reserves the right to
argue that Condition 43, which relates to
Estrella's performance of certain obligations
on the Forster Ranch
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off of the Property being acquired by CDC,
should not be applied to CDC.
(iv) To the extent that CDC revises the project
from what already has been reviewed and
approved by City, City reserves the right to
impose additional or modified conditions or
requirements to the extent reasonably related
to such revisions.
(v) CDC shall be required to pay all city
development and building fees, charges,
assessments, and taxes in existence on the
Effective Date at the rates in effect at the
time such fees, charges, assessments,
and taxes become due, including any increases
adopted or imposed after the Effective Date.
(vi) CDC shall be required to pay City's applicable
RCFPP fee and beach parking fee for Tract
12895 at the rate in effect at the time such
fees become due, notwithstanding that such
fees are not in existence as of the Effective
Date, but otherwise CDC shall not be obligated
to pay any new City fee, charge,
assessment or tax which is not in effect as of
the
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Effective Date as a condition to CDC's right to develop or
build Tract 12895.
2.05.2 Development Allocations. The 155 development
allocations issued by the City for residential construction on the tentative
map for Tract 12895 approved by the City on April 20, 1988, shall not be
reallocated to another developer or otherwise revoked or withdrawn from CDC
prior to June 1, 1991, due to any failure of CDC to commence construction
before that date.
2.06 Measure B.
2.06.1 Stipulated Judgment. CDC and City agree to enter into a
stipulation for Judgment with respect to Orange County Superior Court Case
No. 49-04-07 in substantially the form set forth in Exhibit F to this
Agreement. Within thirty (30) days following the Closing Date, CDC and City
shall present the stipulation to the Court for execution and entry of
judgment. In the event the Court requires modifications to the stipulation,
the parties agree to cooperate in effectuating such modification provided
the same do not materially impair the rights of either party hereunder.
Within fifteen (15) days after judqment is entered in Case No. 49-04-07,
CDC shall dismiss with prejudice United States District Court Case No.
CV 86-3345 IH (Kx). CDC and City agree to bear their respective costs and
attorney's fees with respect to the Litigation. Notwithstanding the
stipulated judgment and dismissal
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referenced herein, in the event Measure B is repealed (by action of the
City's voters) or a final, nonappealable judgment is entered by a court of
competent jurisdiction (as a result of litigation pursued by a third party)
declaring that Measure B is invalid or enjoining its enforcement, Measure B
shall not apply to the Property. If for any reason any court determines
that the Settlement/ Development Agreement precludes application of Measure
B to development of the Property prior to the entry of Judgment in Orange
County Superior Court Case No. 49-04-07 or United States District Court
Case No. CV 86-3345 IH (Kx), CDC shall waive the benefit of such ruling.
CDC agrees that from and after the Effective Date, and except as
specifically set forth in the preceding paragraph, it will not participate
in, finance, or otherwise promote any litigation which seeks a judicial
determination that Measure B is invalid, either on its face or as applied
to all or any portion of the Property, or which seeks tc enjoin the
enforcement of Measure B.
During the term of this Agreement, and without limiting or restricting
CDC's rights under Section 2.01 above, City agrees that no amendment to
Measure B and no new City ordinance, resolution, rule, regulation, or
official policy shall apply to the Property if and to the extent that the
same either (i) reduces the number of residential building permits that
City can approve or issue in any year
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below the number now authorized by Measure B (i.e., 500, as the same may be
adjusted in accordance with Section 4.B of Measure B), or (ii) further
reduces or restricts the exemptions set forth in Section 2 of Measure B.
In any case, if within two years from the Effective Date Measure B is
repealed or declared invalid through the issuance of a final, nonappealable
Judgment entered by a court of competent jurisdiction, the term of this
Agreement shall then change from fifteen years to ten years.
2.06.2 Changes to Measure B. If any change is made to Measure B on or
after the Effective Date, other than a change allowed under the above
definition of Measure B, such change will not be binding upon the Property
without the prior written consent of CDC.
ARTICLE 3
OBLIGATIONS OF CDC
3.01 General. CDC shall construct the public improvements, dedicate the
property, and pay the fees set forth in this Article 3.
3.02 Storm Drain.
3.02.1 Construction and Maintenance. CDC shall construct a
reinforced concrete enclosed box culvert storm drain (the "Storm Drain")
from the downstream side of Calle Nuevo across the Golf Course to the site
of the proposed District inlet facility, all as shown on the concept plan
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attached hereto as Exhibit E. The Storm Drain shall be designed to meet all
standards and criteria of the District for accepting the dedication of the
completed facility for full ownership and maintenance purposes.
CDC has represented to City that Estrella has agreed to cause
Shorecliffs to enter into an agreement with CDC prior to the Closing Date
which agreement will provide, inter alia, that: (i) Shorecliffs will give a
nonexclusive easement to CDC for the construction, maintenance, and repair
of the Storm Drain on, under, and across the Golf Course; (ii) after CDC's
completion of construction of the Storm Drain, Shorecliffs shall restore or
landscape the portion of the Golf Course through which the Storm Drain has
been constructed; (iii) Shorecliffs shall maintain the Storm Drain until
dedication of the Storm Drain is accepted by the District or City; and (iv)
Shorecliffs, at its sole expense, shall maintain the Golf Course in a
reasonable manner and condition and keep the Golf Course open for public
play, both for two years after the date that the Storm Drain has been
completed, as provided herein.
In addition, at or prior to the Closing Date, CDC shall exercise best
efforts to cause Shorecliffs to agree (i) that the easement granted to CDC
pursuant to clause (i) of the preceding sentence shall include all
temporary and permanent easements which may reasonably be required by the
District (in accordance with the District's standard forms)
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for acceptance of the Storm Drain for full ownership and maintenance purposes,
that CDC may assign said easements to District, and that CDC may assign said
easements to City in the event that the District fails or refuses for any
reason to accept said assignment; (ii) to grant the necessary easements or
rights-of-way (in accordance with the District's standard forms) to permit the
use of portions of the Golf Course as a retention basin or basins in the event
of storm water runoff in the Prima Deshecha Drainage Basin exceeding the
carrying capacity of the Storm Drain, all without any charge to or liability of
the District or City, as the case may be; (iii) if the District does not accept
Shorecliffs' offer of dedication of the Storm Drain within ninety (90) days
following the satisfactory completion of construction thereof, City shall have
the right, but not the obligation, at any time thereafter to accept the same
for full ownership and maintenance purposes, provided the following conditions
are satisfied:
a. The Storm Drain has been completed in accord with the
plans and specifications described in Section 3.02.2
below;
b. CDC agrees to indemnify, defend, and hold City
harmless from all claims arising from defective
design or construction by CDC of the Storm Drain
other than defects caused by
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City-imposed changes to the plans and specifications;
and
c. CDC assigns to City its rights under any agreement it
may have with the District relative to the District's
obligation to accept the Storm Drain; and
(iv) to make City a third party beneficiary with the right to enforce all of
Shorecliffs' obligations referenced in this Section 3.02.1, including the
right, if Shorecliffs fails to maintain the Storm Drain prior to the District's
or City's acceptance of Shorecliffs' offer of dedication, to declare the Golf
Course property a public nuisance, to enter onto the Golf Course to perform the
maintenance necessary to abate the nuisance, and to recover the costs of such
maintenance in the same manner permitted for recovery of the costs of abating
nuisances, including filing and enforcing a lien against the Golf Course, and
with City's rights to be memorialized in a document recorded against the Golf
Course and running with the land in favor of City, in a form reasonably
acceptable to the City Attorney.
Notwithstanding any other provision of this Agreement to the
contrary, all of City's obligations under this Agreement shall be conditioned
and contingent upon CDC's obtaining such agreement from Shorecliffs. If CDC
fails to timely obtain such agreement, City shall have the right to terminate
this Agreement upon thirty (30) days' written
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notice to CDC; provided, however, that if City notifies CDC of its intent to
terminate this Agreement and CDC obtains Shorecliffs' agreement to such
matters, this Agreement shall continue in force and effect. In the event this
Agreement is terminated pursuant to this Section 3.02.1, neither party shall
have any rights or obligations hereunder.
3.02.2 Plans and Specifications. CDC shall prepare and submit
to City and the District plans and specifications for all portions of the Storm
Drain within ninety (90) working days after CDC receives from the District all
criteria it needs to prepare such plans and specifications. CDC will use due
diligence to obtain such criteria from the District on or before March 31,
1989. CDC shall cooperate with both City staff and the District and their
consultants to provide full information regarding the design and construction
of the Storm Drain, and shall exercise reasonable diligence in processing the
plans and specifications. City shall cooperate and consult with CDC regarding
the processing and approval of the plans and specifications, subject to its
rights to independently evaluate engineering design and feasibility.
City shall review and comment upon the proposed plans and
specifications and return the same to CDC. Thereafter, CDC shall revise the
plans and specifications to conform to the reasonable requirements of City and
the District and then resubmit the plans and specifications to
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City and the District within thirty (30) days of receipt of comments from each
agency. If CDC makes any material change in the plans and specifications after
final approval by City or the District, CDC will resubmit the amended plans and
specifications in the same manner as outlined above.
City shall review all submissions and resubmissions of the
plans and specifications in an expedited manner, and its approval of the same
will not be unreasonably withheld or delayed.
To the extent required by law, CDC shall also submit the
necessary applications for permits to construct the Storm Drain to the United
States Army Corps of Engineers, the California Department of Fish & Game, the
California Coastal Commission, and any other governmental agencies with
jurisdiction over the project. Such applications shall be filed as soon as
practicable after the Closing Date. CDC shall use due diligence in processing
such permit applications. City shall provide reasonable assistance to CDC in
obtaining such permit approvals, provided CDC shall advance or promptly
reimburse City for any out-of-pocket costs (excluding staff time) City incurs
in providing such assistance.
3.02.3 Construction. CDC shall commence construction of the
Storm Drain as soon as weather permits after the plans and specifications are
approved and all required governmental permits are issued, and thereafter CDC
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shall diligently prosecute such construction to completion. The phrase "as
weather permits" means that construction shall commence within thirty (30) days
after the plans and specifications are approved and all required governmental
permits are issued, provided that CDC shall not be required to commence
construction earlier than April 1 nor later than July 1, and if construction
cannot be commenced prior to July 1, the commencement date shall be no later
than the following April 1. CDC shall complete construction of the Storm Drain
within six (6) months following commencement, subject to Section 6.02.2 herein.
CDC shall construct the Storm Drain in a manner that minimizes interference
with the on-going operation of the Golf Course to the extent reasonably
practicable.
3.02.4 Funding. Except as provided below, CDC shall have the
sole obligation to fund the planning, design, engineering, construction,
supervision, inspection, and all other costs associated with the design and
construction of the Storm Drain.
(a) Letters of credit. As security for its obligation
to plan, design, engineer, construct, supervise, and inspect the Storm Drain,
CDC, no later than the Closing Date, shall deliver to City an irrevocable
direct-pay letter of credit in favor of City, in a form acceptable to the City
Attorney, and drawn on a financial institution acceptable to City, in the
amount of $1,500,000. Upon receipt of such
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letter of credit, City shall return to Estrella its $1,500,000 letter of credit
which was submitted to City pursuant to Section 3.c.(i) of the Second Amendment
to the Settlement/Development Agreement. Further, prior to CDC obtaining any
building permit regarding the Property, it shall post a new irrevocable
direct-pay letter of credit ("Box Culvert Letter of Credit") in favor of City,
in a form acceptable to the City Attorney, and issued by a financial
institution acceptable to City, in an amount equal to the difference between
the "City Funds" (defined below) and the estimated cost of the box culvert as
reasonably determined by an engineering firm engaged by CDC and approved by
City ("Estimated Cost").
Upon delivery to City of the Box Culvert Letter of
Credit, City shall immediately return to CDC its $1,500,000 letter of credit.
The $1,500,000 Letter of Credit and the Box Culvert
Letter of Credit shall provide for direct payment to the City upon the receipt
by the issuing bank of a written statement from the City Manager or designee
that CDC has defaulted under this Agreement by failing to timely commence,
proceed with, or complete construction of the Storm Drain pursuant to this
Agreement and that the amount of the City's demand on the letter of credit has
been determined by the City to be the amount necessary to complete the work.
City will deliver to CDC a copy of any such written notice to the
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issuing bank five working days prior to presenting such notice to the issuing
bank. Upon written request by CDC to City (not more frequently than monthly)
accompanied by such documentation as may be reasonably required by the City
Engineer which proves that portions of the Storm Drain construction work have
been satisfactorily completed and subcontractors have been paid therefor, City
shall permit a reduction of the Box Culvert Letter of Credit or, at CDC's
option, the substitution of a smaller letter of credit (otherwise in the same
form), provided that the remaining balance secured by the reduced or
substituted letter of credit shall be not less than 125% of the then-estimated
cost to complete the project less the then-unexpended balance of the "City
Funds" referenced in paragraph (b) below. In the event the funds obtained by
City from either letter of credit (less the amount of the City Funds) are
insufficient to enable City to complete construction of the Storm Drain project
as provided herein, as reasonably determined by City, CDC shall pay the
additional amount required by City for such purpose within ten (10) days after
City provides written notice to CDC with documentation itemizing the need for
the additional funds. Within five (5) days after construction is completed and
accepted and the period for filing any lien claims with respect to the Storm
Drain construction has expired (or, if any claims are filed, within five (5)
days after CDC posts a bond with the District or City, as
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applicable, in an amount sufficient to satisfy such claims), city shall
promptly refund to CDC any funds advanced or paid by CDC for the storm Drain
which are not needed for this purpose and/or release or return the letter of
credit to the extent that there is any balance thereon.
(b) Construction funding. Simultaneously with the
delivery of the Box Culvert Letter of Credit by CDC to City, City shall
contribute to the cost of constructing the Storm Drain by depositing into a
mutually agreeable escrow account the sum of $887,830.34 (the amount previously
collected by the City from storm drain fees and deposited into the Master Plan
Drainage Account for the Prima Deshecha Canada, including interest thereon
through July 1, 1987, which amount was previously committed to the Storm Drain
project under Section 3.c.(ii) of the Second Amendment to the
Settlement/Development Agreement), plus all interest accumulated on such amount
from July 1, 1987, to the date such funds are deposited into the escrow account
(the "City Funds"). The escrow account shall be administered pursuant to escrow
instructions letter which shall incorporate the following terms and conditions
and otherwise be reasonably acceptable as to form by both parties.
The terms and conditions of the escrow shall be as
follows:
(i) CDC shall be responsible for paying all fees
and expenses of the escrow agent.
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(ii) CDC shall be entitled to all interest
generated on the funds in the escrow account
from the time of deposit until the funds in
the account have been disbursed.
(iii) Periodically during the course of
constructing the Storm Drain, CDC shall be
entitled to submit written statements to City
and the escrow agent requesting progress
payments upon the satisfactory completion of
portions of the work. CDC will not submit
more than one statement in any thirty day
period. Each such statement shall be
accompanied by a certified statement signed
by a mutually agreed upon consulting engineer
retained by CDC to verify the extent of the
work performed and the compliance of the work
with the approved plans. City shall request
the District to verify whether the certified
statement submitted by CDC's consulting
engineer is acceptable and, if it is, shall
so notify the escrow agent. If the District
declines to assume this responsibility, the
City Engineer shall do so. The approval of
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the City Engineer shall not be unreasonably
withheld or delayed. If the City Engineer is
responsible for reviewing such statements,
approvals or disapprovals shall be given
within fifteen (15) working days after
delivery of each certified statement from
CDC's consulting engineer, together with
whatever supporting information may be
reasonably requested by the City Engineer,
and if the written request for approval
contains a bold-face warning on the first
page that if no reply is received within
fifteen (15) working days after approval,
approval will be deemed to have been given,
and if no response from the City Engineer is
received by CDC within such time, approval
will be deemed to have been given. Upon
approval either by the District or City, the
City Engineer shall promptly so notify the
escrow agent. Any disapproval of the City
Engineer shall be in writing and shall state
the reasons therefor in detail. No approval
shall be deemed a waiver by the City (or the
District) of
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any claims or rights against CDC if it is
later discovered that the work has not in
fact been completed according to the approved
plans or in a workmanlike manner.
(iv) Upon receipt of notice from the District or
the City Engineer, as applicable, that the
work described in the request for payment has
been satisfactorily completed, the escrow
agent shall make a progress payment to CDC
from the City Funds in an amount equal to a
percentage of the estimated cost of that
portion of the work which has been certified
and approved as substantially complete less a
retention of 10%. The percentage will be
determined by dividing the amount of the City
Funds by the amount of Estimated Cost, as the
Estimated Cost may be adjusted from time to
time. The escrow agent shall be instructed to
pay to CDC the balance of the funds in the
escrow account, including the 10% retention,
five (5) days after all three of the
following conditions have been satisfied: (a)
a notice of completion has been
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recorded for the entire storm Drain, (b) the
District (or the City, if applicable) has
certified in writing that the storm Drain has
been satisfactorily completed, and (c) the
time for filing lien claims or stop notices
has expired (or a sufficient sun is withheld
or a bond is posted by CDC with the District
or City, as applicable, to satisfy any claims
that are pending).
3.02.5 Waiver of Fees. City shall waive all fees and charges
which would otherwise be imposed on CDC in connection with its construction of
the Storm Drain, but CDC shall reimburse City for all out-of-pocket costs
incurred by City in reviewing plans and inspecting the work performed by CDC.
3.02.6 Master Plan Facilities Reimbursement Agreement. CDC
shall cause Estrella to assign to CDC at the Closing Date all of Estrella's
right, title, and interest under the Master Plan Facilities Reimbursement
Agreement between Estrella and City dated December 21, 1983, and the provisions
of paragraph 1 of said agreement (which relate in part to the Storm Drain)
shall be terminated at such time.
3.03 Traffic Improvements. CDC shall dedicate land, construct
improvements, and/or pay fees as required to comply with the RCFPP, and shall
otherwise be bound by the same.
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CDC shall have the right to construct the traffic improvements located on the
Property which are subject to the RCFPP, subject to city's reasonable approval
which shall not be unreasonably withheld. If City desires to have any of such
improvements constructed prior to the time that CDC is prepared to proceed,
City shall have the right to do so.
3.04 Affordable Housing. CDC shall construct multifamily Affordable
Housing units in an amount equal to the sum of 174 plus 15% times the number of
market rate residential units constructed on the Property. The City will not
require a mix of rental units and for-sale units on the same Affordable Housing
site.
3.05 Park Improvements. As of the Effective Date, City is processing a
Master Plan for the approximately 22-acre City park site which is located
adjacent to the elementary school and proposed intermediate school site in the
"Development Area" of the Forster Ranch (as defined in the Specific Plan)
(hereinafter the "Forster Ranch Park Site") A copy of the draft Master Plan as
recommended for approval by the City's Parks and Recreation Commission is
attached hereto as Exhibit G. City shall exercise reasonable diligence to
complete and approve the Forster Ranch Park Site Master Plan as soon as
possible after the Effective Date.
CDC agrees to contribute the sum of Three Million Dollars
($3,000,000), calculated as of the Effective Date of this Agreement and to be
increased as provided hereinbelow,
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to the cost of planning, designing, and constructing improvements to the
Forster Ranch Park Site in accordance with the City's approved Master Plan, as
the same may be revised by City (after consulting with CDC) from time to time
consistent with this Agreement. If the Capistrano Unified School District
("CUSD") acquires the approximately 14-acre parcel adjacent to the elementary
school site which is a portion of Lot 35 of Tract 10417 (the "Intermediate
School Site"), City may elect to require that a portion of CDC's contribution
be expended on said property for the construction of the "Baseball Park" (as
defined below), as shown on Exhibit G hereto; otherwise, the Baseball Park
shall be constructed on the Forster Ranch Park Site.
The unexpended portion of CDC's $3 million contribution shall be
increased on each January 1 after the Effective Date during the term of this
Agreement until the funds are actually expended or paid to the City in
accordance with increases during the preceding year in the California
Construction Cost Index published by the California Department of
Transportation ("CalTrans") (or, in the event such index or publication is
discontinued, another comparable index to be agreed upon by the parties);
provided, however, that in no event shall the inflation factor for any calendar
year commencing in 1990 and continuing through the term of this Agreement
exceed the percentage derived by dividing the number of building permits for
market-rate residential units
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issued for the Property in the preceding year by 1762 (the maximum number of
market-rate residential units permitted hereunder).
The plans and specifications for each improvement to be funded by CDC
shall be prepared by a licensed and qualified landscape (or other qualified)
architect selected and retained by CDC after consultation with the City and
subject to City's reasonable approval with regard to (i) the identity of the
architect, (ii) the scope of work, (iii) the schedule of performance, and (iv)
the contract price. The architect shall be required to coordinate the
preparation of the plans and specifications with City staff at all times to
assure compliance with all City standards.
CDC shall construct or cause to be constructed each of the park
improvements through a licensed and responsible contractor selected and
retained by CDC after consultation with City and subject to City's reasonable
approval with regard to (i) the identity of the contractor and any
subcontractors, (ii) the plans and specifications, (iii) the schedule of
performance, (iv) the contract price, and (v) all change orders above a
cumulative amount in excess of ten percent (10%) of the original approved
contract price.
It is understood and agreed that CDC may enter into contracts with
contractors performing other work for CDC beyond this scope of this Section
3.05. In such event, CDC shall require each proposed contractor to separately
bid the
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portion of its work within the scope of this Section 3.05 from the portion of
its work outside the scope of this section 3.05, and City shall have the right
to approve a fair and reasonable allocation of costs. In all circumstances, CDC
agrees to act reasonably to have any work performed for CDC within the scope of
this Section 3.05 completed at a reasonable cost, subject to the parties'
mutual objective of having such work performed by contractors with a reputation
for high quality, experience, and reliability. In no event shall CDC receive
credit toward its financial contribution under this Section 3.05 for any
management or developer's fee, overhead, staff time, or profit, by whatever
name called.
During the course of CDC's expenditure of funds eligible to be
credited toward its financial contribution under this Section 3.05, but not
more frequently than quarterly, CDC shall submit to the City Manager (or the
City Manager's designee) an itemized statement, with such supporting
information as the City Manager or his/her designee may reasonably require,
documenting all of CDC's costs eligible to be credited under this Section 3.05.
In lieu of any other obligations hereunder, CDC shall have the option
to pay to City the funds required to be expended by CDC on or before the dates
such expenditures are otherwise required to be made and, in such event, City
agrees to deposit said funds in an interest-bearing special fund
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with interest earned to be credited to the fund and to exercise reasonable
diligence to expend such funds solely for the planning, design, and
construction of improvements to the Forster Ranch Park Site (and, if the
Baseball Park is constructed on the adjacent 14-acre CUSD site, that property)
in accordance with the approved Master Plan.
CDC shall make its financial contribution to the Forster Ranch Park
Site park improvements at the following times:
(i) Baseball Park and Phase 1 Park Improvements.
CDC shall commence construction of the
Baseball Park and "Phase 1 Park Improvements"
(as defined below) no later than six (6)
months after CDC commences grading in the
area included in the first final map under
Revised Tentative Map 12895, provided that if
CUSD has not acquired the Intermediate School
Site by that time, or CUSD has not approved
the construction of the Baseball Park on the
Intermediate School Site, or CUSD and City
have not entered into a joint use agreement
for the Baseball Park, City may elect either
to have CDC defer construction of the
Baseball Park until such conditions are
satisfied or to amend the Forster Ranch
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Park Site Master Plan to include the Baseball
Park and thereafter to have CDC construct the
Baseball Park thereon. Once construction is
commenced, it shall be diligently pursued to
completion, and the construction contract(s)
shall provide for a completion date for all
improvements, including landscaping, no later
than one hundred eighty (180) days
thereafter.
As used herein, the term "Baseball
Park" shall mean the field and such related
improvements approved as a part of the
Forster Ranch Park Site Master Plan. As used
herein, the term "Phase 1 Park Improvements"
shall mean the following for the entire
Forster Ranch Park Site (including the
Baseball Park to the extent applicable and
not provided for in the preceding sentence):
finish grading (except for any buildings or
other structures not included in Phase 1),
installation of irrigation systems, full
grass and landscaping improvements, restroom
facilities, benches, picnic tables, barbeque
grills,
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lighting, and parking lot and driveway paving
and striping. In no event shall CDC be
required to expend more than Six Hundred
Seventy Thousand Dollars ($670,000.00) for
the Baseball Park and Phase 1 Park
Improvements (with such principal sum to be
inflated as provided in the third paragraph
of this Section 3.05).
(ii) Subsequent Phases of Improvements. After the
Baseball Park and the Phase 1 Park
Improvements are completed, CDC shall not be
required to make any further contribution to
the cost of planning, designing, or
constructing improvements on the Forster
Ranch Park Site until the issuance of the
three hundred and ninetieth (390th) building
permit for a market-rate residential unit on
the Property. Thereafter, upon the issuance
of the 390th and all additional residential
building permits for market-rate units on the
Property, CDC shall expend or deposit into an
escrow or trust approved by City additional
funds for park improvements in an amount
equal to
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$1,697.01 per unit, adjusted for inflation as
provided herein. Such funds shall be
allocated to park improvements designated on
the Master Plan for the Forster Ranch Park
Site, as the same may be amended by City from
time to time in accordance with this
Agreement, in the order determined by City.
In the event the amount required to be
expended by CDC as provided in this
subparagraph (ii) is at any time less than
the amount reasonably determined by the
parties to be necessary to fund the next park
improvement desired by City, the funds shall
be deposited into an escrow or trust account.
The escrow or trust account shall be an
interest-bearing account with interest
earnings to be utilized for the same purpose
as the principal, but interest earnings shall
not be credited against future expenditure
obligations by CDC hereunder. CDC shall pay
all costs for establishing and administering
the escrow or trust account.
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(iii) Prepayment. CDC shall have the right, but not the
obligation, from time to time to expend more than the
minimum amounts required hereunder, and in such event
the excess shall, at the option of CDC, be credited
against its next required expenditure.
3.06 Development Fees and Taxes. CDC's obligations to pay certain
described fees and taxes relating to development of the Property are limited as
set forth in Sections 3.06.1 through 3.06.3 below.
3.06.1 Planned Drainage Facilities Fee. Construction of the
Storm Drain under Section 3.02 shall constitute full and complete satisfaction
of any obligation of CDC to pay Planned Drainage Facilities Fees or other
drainage-related fees or otherwise mitigate any downstream drainage impacts
which may be caused by development of that portion of the Property within the
Prima Deshecha Drainage Basin. Nothing in this Section 3.06.1 is intended to
limit or restrict City's authority to require CDC to construct storm drainage
improvements on the Property required to satisfy applicable (City requirements
and nothing contained herein is intended to limit or restrict City's authority
with regard to CDC's obligation to pay fees, construct improvements, or both
for that portion of the Property located outside the Prima Deshecha Drainage
Basin.
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3.06.2 Sanitary Sewer Connection Fees. City acknowledges
that pursuant to Section 8.4 of that certain Agreement for Construction of
Wastewater Treatment Facilities dated October 3, 1984, the formation of an
assessment district including the Property, the sale of assessment district
bonds to finance the refurbishment and expansion of the City wastewater
treatment facility and related improvements, the levy of assessments on the
separate parcels comprising the Property, and the timely payment of such
assessments shall constitute full and complete satisfaction of any obligation
of CDC to pay any sanitary sewer connection fees or other fees for construction
of and connection to such treatment facility, and of any obligation of CDC to
construct any reclaimed water facilities on the Property (except under Section
8.6 of the October 3, 1984, agreement). Notwithstanding the foregoing, CDC
acknowledges that if additional wastewater facility improvements are required
in the future which are of benefit to the Property, or if any additional
assessment must be imposed to complete the facilities covered by the October 3,
1984, Agreement for Construction of Wastewater Treatment Facilities, CDC will
be obligated to pay its proportional share for the same. Nothing in this
Agreement is intended to limit or restrict City's authority to impose sewer
service charges on persons using City's wastewater treatment facilities.
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3.06.3 Park Fees. CDC's obligation to pay any open space,
park or recreation fee with respect to development of the Property shall be
deemed satisfied by the previous dedications of parks and open space by
Estrella to City and by CDC's timely compliance with its obligations under
Section 3.05 of this Agreement. Nothing in this Agreement shall be construed to
limit City's authority to include any portion of the Property in an assessment
district (including without limitation a district formed pursuant to the
Landscaping and Lighting Act of 1972) or a community facilities district
(including without limitation a district formed pursuant to the Mello-Roos
Community Facilities Act of 1982) for the purpose of levying assessments or
imposing taxes for the maintenance and operation of open space, parks,
recreation areas, street lighting, or median landscaping, nor as a waiver by
CDC of any right of protest or election with respect thereto.
3.06.4 Other Fees, Charges, and Taxes. Except as expressly
specifically set forth in Sections 2.05.1(vi) and 3.06.1 through 3.06.3,
inclusive, of this Agreement, nothing set forth herein is intended or shall be
construed to limit or restrict City's authority to impose new fees, charges,
assessments, or taxes for the development of the Property or to increase any
existing fees, charges, assessments, or taxes, and nothing set forth herein is
intended or shall be construed to limit or restrict whatever right CDC might
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otherwise have to challenge any fee, charge, assessment, or tax not in effect
as of the Effective Date.
3.07 Reservoir. CDC shall construct, at its sole cost and expense,
an approximately 3,000,000 gallon water storage facility near Camino Vera Cruz
and a water distribution system for the Property, all as set forth more fully
in the City-approved Forster Ranch Master Water Plan prepared by Lowry and
Associates dated June 1982 and supplemented by Madole and Associates' Forster
Ranch Water Master Plan dated June 10, 1983. Upon completion of construction of
the reservoir and the trunk line water distribution system to City's reasonable
satisfaction, CDC shall offer to dedicate such facilities to City (with all
necessary easements and rights-of-way) and City shall accept such offer of
dedication.
3.08 Option to City to Acquire Civic Center Site. Contingent upon
the Closing, CDC grants to City and City accepts from CDC an option to acquire
an approximately 7-acre site in Planning Area 15 (as depicted in the Specific
Plan) on the southwest side of the future extension of Avenida La Pata
(hereinafter the "Civic Center Site"), subject to the terms and conditions set
forth in this Section 3.08.
3.08.1 Determination of Boundaries. The Civic Center Site
shall be located entirely within the portion of the Property designated in
Exhibit H to this Agreement. The
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precise size and configuration of the Civic Center Site shall be as reasonably
determined by City, provided that the size of the Civic Center Site shall not
exceed seven (7) buildable acres of land area without CDC's consent and the
configuration of the Civic Center Site shall not deprive any other legal lot
within the balance of the Property of legal access to a public street or road.
City shall be responsible for the cost of any boundary survey required to
precisely designate the Civic Center Site. City shall, at its sole expense,
satisfy all requirements of the Subdivision Map Act and City's local
subdivision ordinance arising in connection with the creation of the Civic
Center Site as a legal lot.
3.08.2 Option Fee and Purchase Price. CDC's granting of the
option referenced in this Section 3.08 shall be in consideration of City's
performance of its obligations set forth in this Agreement. City shall not be
required to pay any option fee or consideration or purchase price for the Civic
Center Site, other than the miscellaneous costs and expenses related to the
conveyance which are City's responsibility as specifically set forth in this
Section 3.08.
3.08.3 Option Period. City shall have the right to exercise
its option to acquire the Civic Center Site at any time during the term of this
Agreement commencing with the date that is four (4) years after the Effective
Date, provided, however, that, subject to Section 3.08.9 below, if
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at any time after the fourth anniversary of the Effective Date CDC determines
in its sole discretion that City's unexercised option is adversely affecting
CDC's plans for the use, development, or sale of any of the property included
within Exhibit H to this Agreement, CDC shall have the right to provide written
notice to City that the option must be exercised by City (if at all) within one
(1) year of City's receipt of such notice and if City does not exercise the
option within said one (1) year period, the option shall automatically
terminate at that time, unless CDC agrees in writing to extend the option for
an additional period of time, which extension CDC may grant or withhold in its
sole discretion.
3.08.4 Manner of Exercise of Option. City shall exercise its
option to acquire the Civic Center Site by delivering to CDC written notice of
City's intention to do so. Within ten (10) days after City delivers such notice
to CDC, City and CDC shall open an escrow for the conveyance with a title
company selected by CDC and subject to City's reasonable approval. The escrow
instructions for the conveyance shall be consistent with this Section 3.08.
City and CDC agree to execute such additional instructions as may be reasonably
required by the escrow agent in order to accomplish the purposes of this
Section 3.08 and close the escrow; provided, however, that in the event of any
conflicts between the standard printed form escrow instructions of the
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escrow agent and the provisions of this Section 3.08, the provisions of this
Section 3.08 shall prevail.
3.08.5 Condition of Title. CDC shall convey title to the
Civic Center Site by grant deed. CDC shall convey and City shall accept fee
simple merchantable title to the Civic Center Site free and clear of all
recorded and unrecorded monetary liens. CDC further agrees to convey the Civic
Center Site free and clear of all recorded and unrecorded non-monetary lions,
encumbrances, easements, leases, covenants, conditions, restrictions, and other
exceptions to or defects in title (collectively, "Title Exceptions"), excepting
only (i) those Title Exceptions City determines in its reasonable discretion do
not interfere with City's planned development and use of the Civic Center Site,
(ii) Title Exceptions existing at the Closing, and (iii) Title Exceptions
created after the Closing which are not a result of any act or omission by CDC.
CDC represents to City that as of the Effective Date CDC has no knowledge of
the existence of any unrecorded Title Exceptions which may affect the Civic
Center Site other than as may have been disclosed in writing to City prior to
the Effective Date.
At CDC's option, the grant deed conveying the Civic Center Site to
City shall contain a power of termination meeting the requirements of Chapter 5
(commencing with Section 885.010) of Title 5 of Part 2 of Division 2. of the
California Civil Code exercisable by CDC as to any portion of
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the Civic Center Site that is used for purposes other than construction,
maintenance, and operation of public uses (including without limitation a city
hall, community center, library, police station, fire station, and related
landscaped open areas).
3.08.6 Escrow Fees and Closing Costs. City shall pay all of
the escrow fees and closing costs incurred for the conveyance of the Civic
Center Site, except that CDC shall pay any property taxes and assessments
(which shall be prorated at close of escrow), or cause a reallocation of same
to some or all of the balance of the Property, and all costs required to place
title in the condition referenced in the first paragraph of Section 3.08.5. If
City desires to obtain a policy of title insurance, City shall pay the premium
therefor. CDC and City hereby warrant and represent to one another that neither
party has engaged the services of a broker or finder in this transaction, and
each agrees to indemnify, defend, and hold the other harmless from and against
any claims, liabilities, or losses arising out of a breach of such warranty and
representation.
3.08.7 Right of Entry. Between the Effective Date of this
Agreement and the close of escrow or earlier termination of City's option to
acquire the Civic Center Site, CDC hereby grants to City and its authorized
agents a non-exclusive irrevocable license to enter onto the Civic Center Site
and adjacent portions of the Property for the
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purpose of conducting soils tests and engineering and boundary surveys and
other investigations related to city's intended use of the Civic Center Site,
provided that City shall notify CDC in writing prior to such entry. City agrees
to indemnify, defend, and hold harmless CDC and the Property from and against
any and all claims, liabilities, and losses arising from City's activities,
including those of its agents and contractors, as provided for under this
Section 3.08.7, including but not limited to mechanic's liens. City agrees to
bear all costs in connection with such work.
3.08.8 Physical Condition of the Civic Center Site. CDC
shall be responsible for rough grading the Civic Center Site to within a
tolerance of +/- one foot, in accordance with the rough grading plan to be
prepared and approved as set forth in this Section 3.08.8.
Upon City's written request (which request may occur prior or
subsequent to City's exercise of its option as provided herein), CDC shall
prepare a rough grading plan for the Civic Center Site reflecting a "sheet
graded" configuration. Said rough grading plan shall be prepared in cooperation
with City and shall be submitted to and approved by City.
Subject to the next paragraph hereinbelow, CDC shall commence
rough grading on the Civic Center Site within thirty (30) days after the later
of the following dates: (i) the date that City exercises its option to acquire
the Civic
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Center Site, and (ii) the date that City approves the rough grading plan for
the Civic Center Site. Once grading is commenced, it shall be diligently
pursued to completion and, except in the event of a delay entitling CDC to an
extension of time to perform under Section 6.02.2 of this Agreement, the
grading shall be completed within sixty (60) days after it is commenced. CDC
shall comply with all applicable City ordinances in connection with such
grading.
Notwithstanding the foregoing, in the event that the Civic
Center Site is located adjacent to Planning Area 1 of the Rancho San Clemente
property and at the time the grading would otherwise be required to commence
hereunder, City has not yet acquired the adjacent property in Rancho San
Clemente Planning Area 1 which City needs to acquire to create a complete civic
center complex, CDC's obligation to commence rough grading the Civic Center
Site shall be extended for a reasonable period of time to avoid the need for
extensive corrective grading operations off of the Property. City's election to
close escrow on the Civic Center Site prior to CDC's completion of rough
grading shall not be deemed a waiver of City's right to require such rough
grading to be performed at a later date, including, if the grading is to be
deferred until City acquires adjacent property in Rancho San Clemente Planning
Area 1, at the time such adjacent property is acquired.
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CDC warrants and represents (which warranty and representation
shall survive the close of escrow) that it has no actual knowledge of the
presence of any hazardous or toxic substances or materials within the portion
of the Property designated on Exhibit H to this Agreement. CDC shall indemnify,
defend, and hold City harmless from any claims, liabilities, or losses incurred
by City arising out of CDC's violation of this limited warranty and
representation. Otherwise, CDC makes no warranty, express or implied, regarding
the physical condition of the Civic Center Site and, except for CDC's
obligation to deliver the Civic Center Site in a. rough graded condition in
accordance with the approved grading plan, as referenced herein, City shall
accept the Civic Center Site in an "as is" physical condition.
3.08.9 Close of Escrow. Escrow shall close sixty (60) days
after the opening of escrow; provided, however, that City shall have the right
to extend the closing date to a date not later than fifteen (15) days after CDC
satisfactorily completes the rough grading of the Civic Center Site in
accordance with Section 3.08.8 herein, and in the event such an extension is
made, the Option Period referenced in Section 3.08.3 shall be extended until
the escrow is closed.
3.08.10 Wastewater Treatment Capacity. City agrees that the
Property shall not be assessed for any
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wastewater treatment capacity used for the Civic Center Site (after City
acquires the same), and that the wastewater treatment capacity for the Civic
Center Site shall be allocated to the City's share, rather than Estrella's,
CDC'S, or the Property's share, under Article IX of the October 3, 1984,
Agreement for Construction of Wastewater Treatment Facilities.
ARTICLE 4
IMPLEMENTATION
4.01 Processing and Approvals. During the term of this Agreement,
City shall process all of CDC's applications for development projects on the
Property (including without limitation general plans, specific plans, zone
changes, tentative tract maps, site plan reviews, conditional use permits, and
variances) within the times set forth in the Permit Streamlining Act (Chapter
4.5 (commencing with Section 65920) of Division 1 of Title 7 of the California
Government Code), the Subdivision Map Act (Division 2 (commencing with Section
66410) of Title 7 of the California Government Code), and other applicable
provisions of law, as the same may be amended from time to time. In addition,
to the extent City can do so with its limited resources and without illegally
discriminating against other applicants, City shall exercise reasonable
diligence to expedite the processing of CDC's permit applications for
development projects on the Property
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in shorter periods of time. In no event shall City disapprove, condition, or
delay the processing of any development project proposed by CDC on the Property
for reasons inconsistent with the express provisions of this Agreement.
With respect to applications by CDC for tentative subdivision maps for
portions of the Property, City agrees that CDC may file and process vesting
tentative maps in accordance with Chapter 4.5 (commencing with Section 66498.1)
of Division 2 of Title 7 of the California Government Code and the applicable
provisions of City's subdivision ordinance, as the same may be amended from
time to time. With respect to meeting any requirements of the California
Environmental Quality Act (Division 13 (commencing with Section 21000) of the
Public Resources Code) ("CEQA"), CDC shall provide all information required of
it and pay for any necessary studies and reports, and City shall process such
matters in accordance with the preceding paragraph and, to the extent permitted
by CEQA, shall use and adopt existing environmental reports and studies without
requiring new or supplemental environmental documentation.
If City is unable to timely process any of CDC's permit applications
for development projects, upon request by CDC, City will consider engaging
outside consultants to aid in such processing, provided that CDC shall be
required to
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advance all charges to be incurred by City for such outside consultants.
4.02 Conditions of Approval Regarding Specific Plan. With respect to
the Conditions of Approval for the Specific Plan, City acknowledges that
Conditions 13 (Back Country Trails Study) and 34 (Beach Parking Study), except
the last sentence, have been satisfied, and Condition 2 (water reclamation) is
not applicable to the Property as now proposed for development in accordance
with the Specific Plan. City further acknowledges that Condition 8 (update of
Water, Sewer, and Drainage Master Plans) shall be limited to necessary updating
of existing plan(s). City acknowledges that Condition 10 (Traffic Study), 28
(freeway interchange), and 29 (Avenida La Pata extension) will be implemented
by way of CDC's compliance with the RCFPP.
4.03 Tentative Map Extensions. If final maps are not recorded for
all the property comprising Revised Tentative Map 12895 before such tentative
map would otherwise expire, the term of such tentative map shall be extended
for the term of this Agreement.
4.04 Other Governmental Permits. Provided that CDC will pay the
reasonable cost of such cooperation, after City has approved the development of
any portion of the Property, City shall cooperate with CDC in its efforts to
obtain such additional permits and approvals as may be required by any other
governmental or quasi-governmental agencies having
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jurisdiction over the Property which permits and approvals are consistent with
City's approval and which are consistent with applicable regulatory
requirements.
ARTICLE 5
AMENDMENT OF AGREEMENT
This Agreement may not be amended except by a writing executed by City
and CDC, after City has complied with any public notice and hearing
requirements which may be a prerequisite to such amendment.
ARTICLE 6
ANNUAL REVIEW; DEFAULT; TERMINATION
6.01 Annual Review. City shall review the good faith compliance of
CDC with the terms of this Agreement at the first City Council meeting of
February 1990 and at the same time each year thereafter during the term of this
Agreement (the "Annual Review"). The Annual Review shall be conducted in
accordance with Article 6 of City's regulations for consideration of
development agreements approved by Resolution No. 46-81 on June 17, 1981, as
the same may be amended from time to time. City shall provide CDC, at least ten
(10) business days before the Annual Review, with a copy of all final public
staff reports and, to the extent practical, related exhibits, as well as any
proposed determinations concerning CDC's performance under this
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Agreement. At the conclusion of the Annual Review meeting, City shall make
written findings and determinations, on the basis of substantial evidence,
whether CDC has complied in good faith with the terms and conditions of this
Agreement. If City finds and determines that CDC has not complied with such
terms and conditions, City shall provide CDC with written notice and an
opportunity to cure as set forth in Section 6.02.1, and if CDC fails to cure
the default within the time period provided therein, City may terminate or
modify this Agreement by giving CDC notice of its intention to do so in the
manner set forth in Government Code Sections 65867 and 65868, as the same may
be amended from time to time. In no event shall City's failure to conduct a
timely Annual Review or failure to notify CDC of any default under this
Agreement be deemed a waiver of City's rights with respect to such default.
Nothing set forth in this Section 6.01 is intended to limit City's rights to
pursue any of its remedies under Section 6.02 outside the Annual Review
process.
6.02 Default.
6.02.1 Default. Neither party shall be in default of this
Agreement unless it receives written notice of an event of default from the
non-defaulting party and the defaulting party fails to cure such event of
default within thirty (30) days after such written notice, or if such event of
default requires more than thirty (30) days to cure, such
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additional period as may be appropriate, provided the defaulting party
diligently prosecutes such cure to completion. Such notice shall specify the
nature of the alleged default and the manner in which the default may be
satisfactorily cured. If the defaulting party fails to cure the event of
default as provided herein, the non-defaulting party may pursue the remedies
set forth in Section 6.02.4.
6.02.2 Force Majeure. If any performance by CDC or the City
under this Agreement is delayed because of war, strike, walkout, flood,
earthquake, fire, casualty, act of God, or other cause not within the
reasonable control of CDC or the City, as the case may be, the time to perform
shall be automatically extended by the period of such delay. In no event shall
adverse market or financial conditions or financial ability of a party
constitute an event of force majeure extending the times for such party's
performance hereunder. In addition, in no event shall the term of this
Agreement set forth in Section 7.01 herein be extended by an event of force
majeure.
6.02.3 No Obligation to Develop. It is understood that CDC's
development of the Property depends on a number of factors including, but not
necessarily limited to, the housing market, the availability of financing, and
the general economic climate of the area. Nothing in this Agreement shall be
construed as requiring CDC to develop the
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Property, and any failure to develop the Property shall not be deemed a default
of CDC under this Agreement.
6.02.4 Remedies. In the event of a material default, either
party may institute legal action to cure, correct, or remedy such default,
enjoin any threatened or attempted violation, or enforce the terms of this
Agreement by specific performance. Furthermore, City, in addition to or as an
alternative to exercising the remedies set forth in this Section 6.02.4, in the
event of a material default by CDC, may terminate or modify this Agreement in
accordance with Section 6.01 or give notice of its intent to terminate or
modify this Agreement pursuant to the Development Agreement Statute, in which
latter event the matter shall be scheduled for consideration by the City
Council at a noticed public hearing within thirty (30) calendar days after
delivery of such notice of intent to terminate in the manner set forth in
Government Code Sections 65865, 65867, and 65868, as the same may be amended
from time to time. In no event shall CDC have the right to sue City for damages
arising out of City's default under this Agreement, the parties agreeing that
declaratory and injunctive relief, mandate, and specific performance shall be
CDC's sole and exclusive judicial remedies.
6.03 Termination. If title to the Property has not vested in CDC
on or before March 31, 1989, either party shall have the right to terminate
this Agreement upon thirty (30)
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days' written notice to the other; provided, however, that if either party
notifies the other of its intent to terminate this Agreement and CDC acquires
title to the Property before the expiration of the 30-day period, the Agreement
shall continue in force and effect. In the event this Agreement is terminated
pursuant to this Section 6.03, neither party shall have any rights or
obligations hereunder.
ARTICLE 7
MISCELLANEOUS
7.01 Term. The term of this Agreement shall commence on the
Effective Date, and shall expire on the earliest of the following dates: (i)
the 15th anniversary of the Effective Date; (ii) the applicable date set forth
in the last sentence of Section 2.06.1; (iii) the applicable date set forth in
the last paragraph of Section 3.02.1; and (iv) the applicable date set forth in
Section 6.03.
7.02 Settlement/Development Agreement. This Agreement supersedes
the Settlement/Development Agreement with respect to the Property, and City and
CDC mutually agree that notwithstanding any provision in the
Settlement/Development Agreement to the contrary, neither City nor CDC shall
have any obligations under the Settlement/Development Agreement.
7.03 Transfer of Property. If all or any of the Property is
transferred by CDC to any person or entity (the "Transferred Property"), the
transferee shall succeed to all
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of CDC's rights under this Agreement as they affect the right to proceed with
development of the Transferred Property, and the transferee shall automatically
assume all obligations of CDC hereunder which relate to the Transferred
Property. Furthermore, unless CDC is released in writing by City, a transfer of
all or any part of the Property to any other person or entity shall not release
CDC from any obligation hereunder. Individual home buyers shall have no rights
or obligations hereunder.
In the event CDC or the owner of the Transferred Property develops or
attempts to develop or use its portion of the Property in a manner inconsistent
with the terms of this Agreement, such default shall not constitute a default
by the owner of any other portion of the Property hereunder (including but not
limited to CDC) and shall not entitle City to terminate or modify this
Agreement with respect to such other portion of the Property.
Except as expressly provided herein, this Agreement shall run with the
land and be binding upon, and inure to the benefit of, all of the successors
and assigns of CDC with respect to all or any portion of the Property.
7.04 Mortgagee Rights.
7.04.1 Definition of Mortgagee. As used in this Agreement,
"Mortgagee" shall include the holder of any mortgage or the beneficiary of any
deed of trust covering all or part of the Property or any successor or assignee
of any
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such mortgage holder or beneficiary, provided such mortgage holder or
beneficiary has delivered written notice to the City stating its desire to
receive notices of default under this Section 7.04.
7.04.2 Default Rights. City shall notify any Mortgagee of
any event of default by CDC under this Agreement and shall provide any such
Mortgagee the same opportunity to cure such event of default as is provided to
CDC under this Agreement. Failure to so notify any Mortgagee shall incur no
liability as to City, provided that this Agreement shall not be terminated by
City as to any Mortgagee to whom notice is given and which cures any default by
CDC involving the payment of money within sixty (60) days after the notice of
default or, as to defaults requiring title or possession of the Property (or
portion thereof) to effectuate such cure, if (i) the Mortgagee agrees in
writing, within ninety (90) days after the written notice of default, to
perform all CDC's obligations under this Agreement conditioned upon such
Mortgagee's acquisition of the Property or portion thereof by foreclosure
(including a trustee's sale) or by a deed in lieu of foreclosure, and (ii) the
Mortgagee commences foreclosure proceedings to reacquire title to the Property
or portion thereof within said ninety (90) days and thereafter diligently
pursues such foreclosure to completion, and (iii) the Mortgagee promptly and
diligently cures such default after obtaining title or possession. Subject to
the
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foregoing, in the event any Mortgagee records a notice of default as to its
mortgage or deed of trust, City shall consent to the assignment of all of CDC's
rights and obligations under this Agreement to the Mortgagee or to any
purchaser of CDC's interest at a foreclosure or trustee's sale and CDC shall
remain liable for such obligations unless released by City in accordance with
Section 7.03.
7.05 Cascadita Landslide. City acknowledges and agrees that CDC
shall not be obligated to make any contribution or otherwise bear any portion
of the cost of the repair of the Cascadita landslide based upon CDC's
acquisition, ownership, or development of the Property or its construction of
the Storm Drain.
7.06 Notice. Every notice, demand, request, designation, consent,
approval, or other document or instrument delivered pursuant to this Agreement
shall be in writing, and shall be either personally delivered, sent by Federal
Express or other reputable overnight courier, sent by facsimile transmission
with the original subsequently delivered by other means, or sent by registered
or certified United States mail, postage prepaid, return receipt requested, to
the addresses set forth below, or to such other address as a party may
designate from time to time:
To CDC: Centex Development Company, L.P.
San Clemente, CA 92672
Attn: Ronald M. Brent
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With cc to: Raymond G. Smerge
Post Office Box 19000
3333 Lee Parkway, Suite 1200
Dallas, TX 75219
Telephone: (214) 559-6530
FAX: (214) 522-7568
To City: City of San Clemente
City Hall, 100 Avenida Presidio
San Clemente, CA 92672
Attn: City Manager
Telephone: (714) 361-8322
With cc to: Jeffrey M. Oderman, Esq.
Rutan & Tucker
611 Anton Blvd., Suite 1400
Costa Mesa, CA 92626
Telephone: (714) 641-5100
FAX: (714) 546-9035
Written notices served by registered or certified mail shall be deemed
delivered forty-eight (48) hours after the date mailed. Other notices shall be
effective upon delivery.
7.07 Parties In Interest. This Agreement and all of its terms,
conditions, and provisions are entered into only for the benefit of the parties
executing this Agreement (and any successors in interest), and not for the
benefit of any other individual or entity.
7.08 No Partnership. The parties to this Agreement renounce the
existence of any form of joint venture or partnership between them and agree
that nothing contained in this Agreement or in any document executed in
connection with this Agreement shall be construed as making the parties joint
venturers or partners.
7.09 Cooperation in the Event of Legal Challenge. In
the event of any legal action instituted by any third party
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challenging the validity or enforceability of any provision of this Agreement,
the parties hereby agree to cooperate in defending said action as set forth in
this Section 7.09.
City shall have the right to defend such action. City shall have no
obligation to defend any such action, except that if CDC timely provides City
with written notice that CDC has elected to defend the action City shall not
allow any default or judgment to be taken against it and shall not enter into
any settlement or compromise of any claim which has the effect, directly or
indirectly, of prohibiting, preventing, delaying, or further conditioning or
impairing CDC's rights hereunder. In addition, if CDC elects to defend the
action City shall provide reasonable assistance to CDC, such assistance to
include (i) making available upon reasonable notice, and at no cost to CDC,
City officials and employees who are or may be witnesses in such action, and
(ii) provision of other information within the custody or control of City that
is relevant to the subject matter of the action.
CDC shall have the right, but not the obligation, to defend any such
action. If CDC defends any such action, it shall indemnify, defend, and hold
harmless City from and against any claims, losses, or liabilities assessed or
awarded against City by way of judgment, settlement, or stipulation. If CDC
does not defend any such action, CDC shall have no responsibility for the
payment or defense of
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any claims, losses, or liabilities incurred by or filed against City.
7.10 Entire Agreement; Recordation. This Agreement consists of
sixty-five (65) pages and nine (9) exhibits, which constitute the entire
understanding and agreement of the parties.
This Agreement integrates all of the terms and conditions mentioned
herein or incidental hereto, and supersedes all negotiations or previous
agreements between the parties with respect to all or any part of the subject
matter hereof. All waivers of the provisions of this Agreement shall be in
writing and signed by the appropriate authorities of City and CDC. This
Agreement shall be recorded against the Property, at CDC's expense, at the
Closing immediately following recordation of the grant deed or deeds conveying
the Property to CDC and prior to any monetary lien, or any other encumbrance,
covenant, or restriction, which lien, encumbrance, covenant, or restriction is
placed on the Property at Closing.
7.11 Severability. If any term, provision, covenant, or condition
of this Agreement is held by a court of competent jurisdiction to be invalid,
void, or unenforceable, the remaining provisions of this Agreement shall
continue in full force and effect, unless the rights and obligations of one or
both parties have been materially altered or abridged by such holding.
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7.12 Successors and Assigns; Survival of Representations,
Warranties, and Indemnity Obligations. This Agreement shall bind and inure to
the benefit of the successors and assigns of the parties hereto. Any
representations and warranties made by a party in this Agreement and any
indemnity obligations of a party which are set forth herein shall survive the
Closing, the close of escrow referenced in Section 3.08 (as applicable), and
the termination of this Agreement.
7.13 Applicable Law. This Agreement shall be construed and enforced
in accordance with the laws of the State of California.
7.14 Attorney's Fees. In the event of any legal action for
enforcement of any of the terms or conditions of this Agreement, the prevailing
party in such action shall be entitled to recover its reasonable costs and
expenses, including without limitation reasonable attorney's fees and costs.
Attorney's fees shall include attorney's fees on any appeal, and in addition a
party entitled to attorney's fees shall be entitled to all other reasonable
costs for investigating such action, taking depositions and discovery, and all
other necessary costs incurred in the litigation. All such fees shall be
deemed to have accrued on commencement of such action and shall be enforceable
whether or not such action is prosecuted to a final judgment.
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7.15 Estoppel Certificates. Upon written request of either party
directed to the other, the party requested shall promptly furnish to the other
(at the expense of the requesting party) a written statement certifying that
(a) this Agreement, subject to any amendments that may have been duly adopted,
is in full force and effect and binding on the parties in accordance with its
terms, and (b) to the best of the certifying party's knowledge, the other party
is not in default under this Agreement (except to the extent any defaults are
known to exist in which case they shall be listed). Any third party shall be
entitled to rely on the certificate.
7.16 Reasonableness. Each of the parties, and their agents,
employees, attorneys, and consultants, shall act reasonably in exercising any
rights or taking any actions pursuant to this Agreement.
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IN WITNESS WHEREOF, the parties have entered into this Development
Agreement as of the date first written above.
CITY OF SAN CLEMENTE,
a municipal corporation
By /s/ BRIAN J. RICE
Mayor
ATTEST:
/s/ MEJINA ERWAY
City Clerk
APPROVED AS TO FORM:
By JOHNNY M. ODERMAN
City Attorney
CENTEX DEVELOPMENT COMPANY,
L.P., a Delaware limited
partnership
By: Centex Real Estate Corporation,
Managing Agent
By /s/ RONALD M. BRENT
Ronald M. Brent,
Division Vice President
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IN WITNESS WHEREOF, the parties have entered into this Development
Agreement as of the date first written above.
CITY OF SAN CLEMENTE,
a municipal corporation
By /s/ BRIAN J. RICE
Mayor
ATTEST:
(Public Agency Form of Acknowledgement)
STATE OF CALIFORNIA )
COUNTY OF ORANGE ) SS.
CITY OF SAN CLEMENTE )
On this 29 day of March, in the year 1989, before me, Brian J. Rice personally
appeared, known to me to be Mayor of the City of San Clemente (name of the
public corporation, agency, or political subdivision) and known to me to be the
person who executed the within instrument on behalf of said public corporation,
agency, or political subdivision, and acknowledged to me that such municipality
(public corporation, agency, or political subdivision) executed the same.
/s/ MEJINA ERWAY
City Clerk
STATE OF CALIFORNIA )
) SS.
COUNTY OF ORANGE )
On March 16, 1989, before me, the undersigned, a Notary Public in and for said
State, personally appeared Ronald M. Brent, personally known to me (or proved
to me on the basis of satisfactory evidence) to be the person who executed the
within instrument as Division Vice President, on behalf of Centex Real Estate
Corporation, the corporation therein named, and acknowledged to me that said
corporation executed the within instrument pursuant to its by-laws or a
resolution of its board of directors, said corporation being known to me to be
the Managing Agent of Centex Dev. Co., L.P., the limited partnership that
executed the within instrument, and acknowledged to me that such corporation
executed the same as such agent and that such partnership executed the same.
WITNESS my hand and official seal. (Official Seal)
VINCY VAN VALKENBURG
Signature /s/ VINCY VAN VALKENBURG NOTARY PUBLIC - CALIFORNIA
CONTRA COSTA COUNTY
My Comm. Expires Sept 25, 1992
(This area for official notarial seal)