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EXHIBIT "D"
PERMITS AND APPROVALS CONSTITUTING
DEVELOPMENT PLAN
1. Deutsch Planned Community Specific Plan
approved by the City Council on January 14,
1991 by Resolution No. 1991-03.
EXHIBIT "E"
BENEFITS TO CITY
1. The proposed project is consistent and compatible
with other existing and proposed uses in the vicinity of the project and community in general.
2. The proposed project will contribute to roadway
improvements consistent with the City's updated Master
Circulation Plan.
3. The proposed project will be developed on
agricultural land which has been denied a permit to farm from the Office of the Agricultural Commissioner due to insufficient moisture content in the soil.
4. The project will be designed and landscaped so as
to provide an aesthetically pleasing environment compatible with surrounding land uses.
5. The overall planning of the project is
comprehensive and interrelated, not planned in a piecemeal fashion.
6. The proposed project will result in revenues to
public agencies through increased property tax from development of the site.
7. The proposed project will result in revenues to
public agencies through increased property tax from development of the site.
8. The proposed project will increase sales tax
revenue for the City of Beaumont through retail sales.
9. The proposed project will provide public
facilities to include parks and a library facility to the City of Beaumont.
10. The intensity of the project is appropriate for
the location and is consistent with the City of Beaumont General Plan.
11. The proposed project provides for alternative
transportation opportunities through the implementation of bicycle and pedestrian facilities.
12. The proposed project represents a reasonable mix
of uses for the site all factors considered.
LZ9Llo0L9abed
APPLICATIONS
EXHIBIT "F"
LIST OF FEES AND ASSESSMENTS
Agricultural Preserve
Architectural Plan
Development Agreement
Landscape Concept Plans
Sign Permits
Tentative Parcel or Tact Map
Plan Check Parcel or Tract Map
Improvement Construct on Plan Checking
Inspection of Improve ent Construction
Final Survey Staking uarantee
Plan Checks per Build ng Code
Building Permits per uilding Code
Amendments to any of he above or prior
approved applications
INFRASTRUCTURE FEES - Sewer
Water
Reclaimed Water
Drainage
MITIGATIONS
FEES
Transportation - Circulation
Police
Fire
Park
Signalization
Public Facilities
Development Agreement, Annual Review Fee
CHARGED BY OTHER AGENCIES WHICH ARE
REQUIRED TO BE COLLECTED BY THE CITY
RECORDING REQUESTED BY, AND
WHEN RECORDED, MAIL TO:
City Clerk
City of Beaumont
550 East Sixth Street
Beaumont, California 92223
DOC t3 2003-323467
05/06/2003
Conformed Copy
Has not been compared with original
Gary L Orso
County of Riverside
Assessor, County Clerk & Recorder
ocu62979.1
(Space above this line for Recorder's use
PRE -ANNEXATION AND
DEVELOPMENT AGREEMENT
NO. 02 -DA -01
BETWEEN
THE CITY OF BEAUMONT
AND
OAK VALLEY PARTNERS, L.P.
AND
PARDEE HOMES
(Pursuant to California Government Code Sections 65864 - 65869.5 and City of Beaumont Resolution No. 1987-34)
, 2003
PRE -ANNEXATION AND
DEVELOPMENT AGREEMENT
This PRE -ANNEXATION AND DEVELOPMENT AGREEMENT
("Agreement") is entered into to be effective on 11/19 , 200 2, between OAK VALLEY PARTNERS, L.P., a Texas limited partnership qualified to do business in California, PARDEE HOMES (the "Developer"), and the CITY OF BEAUMONT, a municipal corporation organized and existing under the laws of the State of California (the "City"). The Developer and the City are sometimes collectively referred to herein as the "parties." RECITALS:
This Agreement is predicated upon the following facts:
A. These Recitals use certain capitalized teiiiis which are defined in this Agreement.
B. Government Code Sections 65864 - 65869.5 authorize the City to enter into binding development agreements with persons having a legal or equitable interest in real property for the development of such property, all for the purpose of strengthening the public planning process, encouraging private participation and comprehensive planning and reducing the economic costs of such development. The City has implemented the law contained in such sections by adopting Resolution No. 1987-34, titled "Establishing Procedures and Requirements for Consideration of Development Agreements" (such Resolution, together with the aforementioned Government Code Sections, are being referred to herein as the "Development Agreement Law").
C. This Agreement is adopted pursuant to the Development Agreement Law.
D. The Developer is the owner of approximately 1759 acres of land currently located in unincorporated Riverside County, California ("County"), but which the parties intend to be annexed to the City, all as more particularly described on Exhibit "A" attached hereto and shown on Exhibit "B" attached hereto (the "Property").
E. The Developer intends to develop the Property in accordance with the Development Plan (as hereinafter defined) (the "Project"). The Project is highly capital intensive, especially in its initial phases, which, in order to make the Project economically and fiscally feasible, requires major commitment to and investment in public facilities and on -site and off -site improvements prior to the construction and sale or leasing of residential and commercial buildings. This Agreement to facilitate the logical and orderly development of the Project in the City.
F. The City has determined the Development Plan is consistent with the City General Plan and has approved the Development Plan in order to promote the health, safety and welfare of its citizens and protect the quality of the community and environment. The Development Plan consists of Specific Plan No. 318 which was approved for the Property by the County of Riverside on August 14, 2001, for which the County prepared and certified OC\562979.1
Environmental Impact Report No. 418 (the "EIR"). As part of that process of approving the Development Plan, the City has prepared and reviewed, pursuant to the California Environmental Quality Act ("CEQA"), an Addendum to the EIR, with respect to the potential significant impacts of the Project resulting from its annexation to the City. The City has determined based on that review that the EIR adequately addresses the potential significant impacts of the Project, and that accordingly neither a supplemental nor subsequent environmental impact report is required for the Development Plan and this Agreement.
G. All of the proceedings relating to the approval of the Agreement have been conducted in accordance with the Development Agreement Law.
H. On 11/19 , 200 the City Council of the City adopted Ordinance No. 832 approving this Agreement with the Developer, as an inducement for the Developer to support annexation of the Property to the City.
L The teiriis and conditions of this Agreement have undergone extensive review by the City and its City Council and have been found to be fair, just and reasonable, and the City has found and determined that the execution of this Agreement is in the best interest of the public health, safety and general welfare of the City and its residents and that adopting this Agreement constitutes a present exercise of its police power.
AGREEMENT
In light of the foregoing Recitals, which are an operative part of this Agreement, the parties agree as follows:
1 DEFINITIONS.
"Agreement" is this Pre -Annexation and Development Agreement. "Agreement Date" is the date this Agreement is approved by the City Council. "Alternative Financing Mechanism" has the meaning given that phrase in Section 10.8 below.
"CEQA" is the California Environmental Quality Act, Public Resources Code section 21000 et seq.
"CFD" is a Community Facilities District formed pursuant to the Mello -Roos Community Facilities Act of 1982, Government Code section 53312 et seq. "City" is the City of Beaumont, California.
"City's Discretion" is discretion exercised by the City in accordance with the policies and principles set forth in the Development Plan, this Agreement and the procedures in effect as of the Effective Date such that the approvals given by the City to the Developer pursuant to the exercise of such discretion shall not be unreasonably withheld or delayed.
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"Developer" is Oak Valley Partners, L.P., a Texas limited partnership, Pardee Homes and their successors in interest to all or any part of the Property. "Development Agreement Law" is Government Code sections 65864 et seq., and Resolution No. 1987-34, titled "Establishing Procedures and Requirements for Consideration of Development Agreements."
Exhibit "C."
"Development Plan" is, collectively, the permits and approvals listed on "Effective Date" is that date which is the later to occur of (a) the expiration of the time for filing a referendum petition relating to this Agreement if no such petition is filed within such period, and (b) the certification of the results of a referendum election are declared approving this Agreement if a referendum petition is filed within the applicable period, or (c) the date that the annexation of the Property to the City is completed. "EIR" is Environmental Impact Report No. 418 ("EIR") for Specific Plan 318 certified by the County of Riverside on August 14, 2001, and the "Addendum" prepared for the Project and dated 9/30 , 2002, copies of which are on file with the City. "Project" is the proposed development of the Property included within the Development Plan and associated amenities, including, without limitation, on -site and off -site improvements contemplated by the Development Plan, as the same may be further defined, enhanced or modified pursuant to the provisions of this Agreement. "Property" is the real property on which the Project is, or will be, located as described on Exhibit "A" attached hereto and shown on Exhibit "B" attached hereto. 2 EXHIBITS. The following documents are referred to in this Agreement, attached hereto and incorporated herein by this reference:
Exhibit Designation Description
A
C
D
E
Legal Description of the Property
Map of the Property
List of Peiniits and Approvals
City Conditions of Approval
Statement of Benefits to the City
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3 MUTUAL BENEFITS. This Agreement is entered into for the purpose of annexing the Property to the City, and implementing the Development Plan for the Project in a manner that will secure certain assurances to the Developer that the Property may be developed in accordance with the Development Plan and this Agreement, and certain benefits to the City as set forth on Exhibit E as set forth in this Section. The City and the Developer agree that, due to the size and duration of the Project, the Agreement is necessary to achieve those desired benefits. 4 INTEREST OF THE DEVELOPER. The Developer represents that the Developer owns fee title to the Property.
5 BINDING EFFECT OF AGREEMENT. The terms and conditions of this Agreement shall be binding upon and inure to the benefit of the parties and their successors and assigns as set forth herein.
6 PROJECT AS A PRIVATE UNDERTAKING. It is specifically understood and agreed that the development of the Project is a private and not a public sector development, that neither party is acting as the agent of the other in any respect hereunder, and that each party is an independent contracting entity with respect to the terms, covenants and conditions contained in this Agreement. No partnership, joint venture or other association of any kind is foriiied by this Agreement. The only relationship between the City and the Developer is that of a government entity regulating the development of private property by the owner of such Property. 7 TERM. The term of this Agreement shall be twenty-five (25) years following the Effective Date. Expiration of the term of this Agreement shall not in any manner affect rights which have otherwise vested under applicable law.
8 HOLD HARMLESS The Developer shall hold the City, its officers, agents, employees and representatives harmless from liability for damage or claims for damage for personal injury, including death and claims for property damage, arising on the Property from the wrongful or negligent activities of the Developer or those of the Developer's contractors, subcontractors, agents, employees or other persons acting on the Developer's behalf which relate to the Project.
In the event any person not a party or a successor to a party to this Agreement institutes any type of action against the City with respect to this Agreement, City and Developer shall cooperate in defending against the action, provided that City may, in its sole discretion, elect to tender the defense of such action to the Developer. If the Developer accepts the tender, the Developer shall thereafter hold City hairiness from and defend City from all costs and expenses incurred in the defense of such action, provided that City fully cooperates with the Developer in the defense of such action. If the Developer declines the tender, then City shall have no further obligation or duty to defend the action.
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9 VESTED RIGHT. By entering into this Agreement the City grants to the Developer a vested right to develop the Property in accordance with the Development Plan. The City shall not enact and enforce against the Project an ordinance, policy, rule, regulation or other measure which significantly alters the rate, type, manner, density, timing or sequencing of the.Project In addition to and not in limitation of the foregoing, it is the intent of the Developer and the City that no moratorium, whether relating to the rate, type, manner, density, timing or sequencing of the Project and whether or not enacted by initiative or otherwise, except a moratorium imposed by the City to implement State or Federal laws, statutes, regulations, policies or orders as provided in Section 11.2, affecting parcel or subdivision maps, building permits, plot plans, special use permits, conditional use permits, occupancy certificates or other entitlements to use or per„iits approved, issued or granted within the City, or portions of the City, shall not apply to the Project to the extent such moratorium or other limitation is in conflict with the Development Plan. Notwithstanding the foregoing, should an ordinance, general plan or zoning amendment, measure, moratorium, policy, rule, regulation or other limitation enacted by the citizens of the City through the initiative process be determined by a court of competent jurisdiction to invalidate or prevail over all or any part of the Development Plan, the Developer shall have no recourse against the City pursuant to this Agreement. The foregoing shall not be deemed to limit the Developer's right to appeal any such determination of such ordinance, general plan or zoning amendment, measure, policy, rule, regulation, moratorium or other limitation which purports to invalidate or prevail over all or any part of this Agreement. 10 DEVELOPMENT OF THE PROJECT.
1.0.1 Annexation. The City and the Developer shall cooperate and use their best reasonable efforts to cause the Property to be annexed into the City, subject only to terms and conditions set forth in the Development Plan and Exhibit "D" hereto, and the mitigation measures set forth in the EIR.
10.2 Phasing and Timing of Development. When or the order in which Project phases will be developed, or whether it will be developed at all, depend upon numerous factors which are not within the control of the Developer or City, such as market orientation and demand, interest rates, availability of funding, competition and other similar factors. Accordingly, to the extent permitted by the Development Plan and this Agreement, the Developer shall have the right to develop the Project in phases in such order and at such times as the Developer, in its sole discretion, deems appropriate within the exercise of its subjective business judgment; provided, however, that the City reserves the right to review, condition and approve each phase through discretionary and ministerial approvals consistent with this Agreement.
1.0.3 Effect of Agreement on Land Use Regulations. The rules, regulations and policies governing permitted uses of property, the density and intensity of use of property, the maximum height and size of proposed buildings and the design, improvement, construction and development standards and specifications applicable to development of property are those rules, regulations and policies in force as of the date of the Agreement, and those rules, regulations and official policies which may hereinafter be adopted by the City in accordance with Section 11.1 hereof, or State or Federal laws, statutes, regulations, policies or orders as provided in Section 11..2.
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10.4 Application Processing. In connection with any approval which the City is permitted or has the right to make under this Agreement relating to the Project, or otherwise under its rules, regulations and official policies, the City shall exercise the City's Discretion or take action in a manner which is as expeditious as reasonably possible.
10.5 Administrative Changes and Amendments. The parties acknowledge that further planning and development of the Project may demonstrate that refinements and changes are appropriate with respect to the details of the Project or interpretation of the Development Plan..
If and when the parties find that minor changes or adjustments are necessary or appropriateto the Project or the Development Plan, they shall, unless otherwise required by law, effectuate such changes or adjustments through administrative amendments approved by the Director of Planning, which, after execution, shall be attached hereto as addenda and become a part hereof, and may be further changed and amended from time to time as necessary, with approval by the Director of Planning as may be requested by the Developer. Minor changes or amendments shall be those which are consistent with the overall intent of the Development Plan and this Agreement and which do not materially alter the overall nature, scope, or design of the Project.
Any such minor administrative changes or amendments shall not be deemed to be an amendment to this Agreement under Government Code Section 65868 and, unless otherwise required by law, no such administrative amendments shall require prior notice or hearing. As part of this Agreement, City understands and agrees that (i) any planning area designated for commercial use or park use, may instead be developed with residential dwelling units at an average density of up to 5.2 units per net acre, without further amendment of the Development Plan.
1.0.6 Mello -Roos Communities Facilities Districts; Other Assessment Districts or Financing Mechanisms. Pursuant to Chapter 2.5 (commencing with section 53312) Part 1, Division 2, Title 5 of the Government Code of the State of California, commonly known as the "Mello -Roos Community Facilities Act of 1982," the Developer may, at its sole election, petition the City Council of the City or a joint powers agency in which the City is a member to establish a Community Facilities District ("CFD"), in accordance with the City's policies in existence on the Effective Date. Alternatively, or in addition thereto, the Developer may request that the City initiate and complete proceedings under the Municipal Improvement Act of 1911, the Municipal Improvement Act of 1913, the Improvement Bond Act of 1915, the Landscaping and Lighting Act of 1972, or any and all other available public financing mechanism, to provide public conduit financing for the construction of public infrastructure improvements on the Property ("Alternative Financing Mechanisms"). If so requested by the Developer, the City shall cooperate with the Developer (or, for matters beyond its control, shall use its best efforts) in taking all steps necessary to cause the CFD or Alternative Financing Mechanisms to issue bonds for such purposes. If the Property is included within a CFD or Alternative Funding Mechanism with other surrounding properties, the special taxes or special assessments burdening the various properties so included shall be apportioned on a fair share basis related to the benefit derived by each of such properties in accordance with City policies at the time such property is included. oc\562979.1
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10.7 Public Services and Facilities. The Development Plan requires an integrated roadway system, and other public facilities including parks, schools, storm drains, and water and sewer facilities. City will reasonably assist Developer in obtaining public facilities and services for the Project on a timely basis in keeping with the pace of development of the Property. To the extent that the Developer constructs, installs or provides financing for public facilities or other public infrastructure improvements that benefit lands outside of the Property, the City shall use best reasonable efforts to adopt such ordinances, mitigation fees, liens or assessments as are necessary to to provide credits, reimbursements, or in -kind funding to the Developer for the fair share of the benefits conferred upon such lands other than the Property by such public facilities or infrastructure improvements.
10.8 Other Governmental or Quasi -Governmental Permits. The Developer shall apply for such other peiinits and approvals as may be required by other governmental or quasi -governmental agencies having jurisdiction over the Project (such as public utilities or utility districts, or other federal or state agencies) to the extent required for the development of, or provision of, services and facilities to the Project as set forth in the Development Plan. The City shall cooperate with and assist the Developer in obtaining such permits and approvals, and, where necessary in making application for such approvals or permits. The Developer shall be solely responsible for all costs and shall be responsible for the processing of all such permits.
10.9 Consistency Between This Agreement and Current Laws. The City represents that as of the date of the execution of this Agreement, there are no rules, regulations, ordinances or official policies of the City that would interfere with the development of the Project according to the Development Plan, provided the Property is annexed into the City.
10.10 Assessments, Fees, Mitigation and Exactions. The City shall not impose any future assessment, fee, mitigation measure or exaction on the Project or any portion thereof, except (a) those existing and proposed assessments, fees, mitigation measures and exactions included in Exhibit "C", (b) such other fees, assessments and exactions as may be adopted or imposed by the City in conformance with the requirements of Article XIII D of the California Constitution, (c) such other development impact fees or categories of development impact fees which are adopted on a City or County -wide basis or as required as a condition to obtaining County funding, such as the proposed County of Riverside Traffic Uniforrrr Mitigation Fee; and (d) such other development impact fees or categories of development impact fees which are imposed on other development projects in the City and are adopted and levied based on a benefit assessment. Fees payable to City shall be at rates applicable on the date the fee is paid. City shall recognize and apply a dollar -for -dollar in -lieu credit against any and all fees, for and equal to the cost of improvements and/or dedications made in the development of the Project by the Developer, or funded by any CFD or Alternative Financing Mechanism including the Property, and for which the fees would otherwise be imposed. City further agrees to use any fees paid with respect to development of the Project to fund improvements which benefit the Project, to the fullest reasonable extent available and applicable under the law. Any payments made to the City as required in that certain settlement agreement between the Developer and the Cherry Valley Acres and Neighbors settling a lawsuit against Specific Plan 318 shall be treated by City as an advance and credit against any fees that may be imposed by the City for the same purposes as the payment.
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10.11 Reimbursement by the City. Pursuant to Government Code Section 65865.2, the City hereby agrees that as future development fees, assessments and exactions are imposed on future projects which have benefited from the fees, assessments and exactions paid by the Developer, the City shall promptly reimburse the Developer to the extent that such fees, assessments and exactions paid by Developer benefited lands outside of the Property, but only to the extent that the City actually receives or collects such fees, assessments or exactions for a period of ten years from the date the fee was paid.
11 RULES, REGULATIONS, REQUIREMENTS AND OFFICIAL POLICIES.
11.1 New Rules. This Agreement shall not prevent the City from applying the following new rules, regulations, requirements and policies, if applied on a City-wide or area of benefit basis:
11.1.1 Processing fees and charges imposed by the City which cover only the estimated actual costs to the City of processing applications for development approvals, for monitoring compliance with any development approvals or for monitoring compliance with environmental impact mitigation measures.
11.1.2 Procedural regulations relating to hearing bodies, petitions, applications, notices, findings, records, hearings, reports, recommendations, appeals and any other matter of procedure, provided that such changes in procedural regulations do not have the effect of materially interfering with the benefits conferred by this Agreement.
11.1.3 Regulations governing construction standards and specifications including, without limitation, the City's Building Code, Plumbing Code, Mechanical Code, Electrical Code and Fire Code.
11.1.4 Regulations which are necessary to protect public health and safety, provided that to the maximum extent possible such regulations shall be designed, construed and applied in a manner to preserve the benefits of this Agreement.
11.1.5 New or increased fees or categories of fees imposed as a condition of development, for the purpose of defraying all or a portion of the cost of public facilities (as defined in Government Code Sections 66000 et seq.) related to development projects.
11.1.6 Regulations which are in conflict with the Development Plan or this Agreement if such regulations have been consented to in writing by the Developer.
11.2 State and Federal Laws. In the event that State or Federal laws or regulations enacted after this Agreement is executed prevent or preclude compliance with one or more of the 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; provided, however, that this Agreement shall remain in full force and effect to the extent it is not inconsistent with such laws or regulations and to the extent such laws or regulations do not render such remaining provisions impractical to enforce. oC\562979.1
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12 AMENDMENT OR CANCELLATION OF AGREEMENT. This Agreement may be amended or canceled in whole or in part only by mutual consent of the parties in the manner provided for in Government Code Section 65868.
13 ENFORCEMENT. Unless amended or canceled as provided in Section 12 above, or modified or suspended pursuant to Government Code Section 65869.5, this Agreement is enforceable by either party hereto notwithstanding any change in any applicable general or specific plan, zoning, or subdivision regulation or standard adopted by the City (or by the voters of the City unless found by a court of competent and final jurisdiction to prevail over this Agreement) which alters or amends the Development Plan or is inconsistent with this Agreement.
14 PERIODIC REVIEW OF COMPLIANCE WITH AGREEMENT. The City shall review this Agreement at least once every year from the date this Agreement is executed.
During each periodic review, each party is required to demonstrate good faith compliance with the terms of this Agreement. Such periodic review shall be conducted administratively by the City Manager and any appropriate department heads designated by the City Manager to perforiii such periodic review. If the City Manager finds that the Developer is not in good faith compliance with this Agreement, the Developer shall have the right to appeal such finding to the City Council. The City Council on appeal shall not hold a public hearing to review a finding that the Developer is not in good faith compliance with this Agreement unless so requested by the Developer in writing at the time of the submission of such appeal. The City shall notify the Developer in writing of the date for review at least thirty (30) days prior thereto. The Developer shall pay or reimburse the City for the City's reasonable costs incurred in connection with such periodic reviews.
15 EVENTS OF DEFAULT.
15.1 Default by the Developer. If the City Council determines on the basis of substantial evidence upon appeal of the City Manager's decision pursuant to Section 14 hereof that the Developer has not complied in good faith with the terms and conditions of this Agreement, it shall, by written notice to the Developer, specify the manner in which the Developer has failed to so comply and state the steps the Developer must take to bring itself into compliance. If, within sixty (60) days after the effective date of notice from the City specifying the manner in which the Developer has failed to so comply, the Developer does not commence action reasonably necessary to bring itself into compliance as required and thereafter diligently pursue such steps to completion, then the Developer shall be deemed to be in default under the terms of this Agreement and the City may, if such failure persists after thirty (30) days' prior written notice, exercise its rights and remedies pursuant to Section 15.3.
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15,2 Default by the City. If the Developer determines on the basis of substantial evidence that the City has not complied in good faith with the terms and conditions of this Agreement, the Developer shall, by written notice to the City, specify the mariner in which the City has failed to so comply and state the steps the City must take to bring itself into compliance. If, within sixty (60) days after the effective date of notice from the Developer specifying the manner in which the City has failed to so comply, the City does not commence steps reasonably necessary to bring itself into compliance as required and thereafter diligently pursue such steps to completion, then the City shall be deemed to be in default under the terms of this Agreement and if such failure persists after thirty days prior written notice, the Developer may teiliiinate this Agreement or seek specific performance as set forth in Section 15.3.
15.3 Specific Performance Remedy. Due to the size, nature and scope of the Project, it will not be practical or possible to restore the Property to its natural condition following development of all or any portion of the Property. After such development, the Developer may be foreclosed from other choices it may have had to utilize the Property. The Developer has invested significant time and resources and perfoii,ied extensive planning and processing of the Project in agreeing to the terms of this Agreement and will be investing substantially more time and resources in implementing the Project in reliance upon the teinis of this Agreement. It would be difficult or impossible to accurately determine the sum of money which would adequately compensate the Developer for such efforts. For the above reasons, the City and the Developer agree that damages alone would not be an adequate remedy if the City fails to carry out its obligations under this Agreement. Similarly, if the Developer breaches certain of its obligations hereunder, monetary damages may not constitute an adequate remedy for the City. Therefore, the parties agree that specific performance of this Agreement is an appropriate remedy if either party defaults and fails to perform its non -monetary obligations under this Agreement.
Notwithstanding the foregoing, nothing in this Agreement is intended to prevent either party from seeking recovery of appropriate damages in the event that the terms of this Agreement are breached. The City and the Developer acknowledge that if the Developer is in default of its obligations under this Agreement, the City shall have the right to refuse to issue any peiinits or other approvals to which the Developer would not otherwise have been entitled but for this Agreement.
16 INSTITUTION OF LEGAL ACTION. In addition to any other rights or remedies, either party may institute legal action to cure, correct or remedy any default, to enforce any covenants or agreements herein, to enjoin any threatened or attempted violation hereof, to recover damages for any default or to obtain any other remedies consistent with the purpose of this Agreement.
Any such legal action shall be brought in the Superior Court of the State of California for the County of Riverside. The parties hereto waive any right to trial by jury. 17 WAIVERS AND DELAYS.
17.1 Waiver. Failure by a party to insist upon the strict perfoiniance of any of the provisions of this Agreement by the other party, and failure by a party to exercise its rights upon a default by the other party hereto, shall not constitute a waiver of such party's right to demand strict compliance by such other party in the future.
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17.2 Third Parties. Nonperformance shall not be excused because of a failure of a third person except as provided in Section 17.3 below.
17.3 Force Majeure. Neither party shall be deemed to be in default for failure or delay in performance of any of its obligations under this Agreement if caused by floods, earthquakes, other Acts of God, fires, wars, riots or similar hostilities, strikes, other labor difficulties, government regulations or other causes beyond either of the parties' control. If any such event shall occur, the term of this Agreement and the time for performance by the Developer of any of its obligations hereunder or pursuant to the Development Plan shall be extended by the period of time that such events prevent or delay development of the Project. 18 NOTICES. All notices required or provided for under this Agreement shall be in writing and delivered in person and deposited in the United States mail, postage prepaid and addressed as follows:
To the City: The City of Beaumont
550 East Sixth Street
Beaumont, California 92223
Attn: City Manager
With a copy to: Mr. Joseph Aklufi
Aklufi & Wysocki
3403 Tenth Street, Suite 610
Riverside, CA 92501
To the Developer: Oak Valley Partners LP
PO Box 645
10410 Roberts Road
Calimesa California 92320
Attn: Project Director
With a copy to:
To the Developer:
With a copy to:
Latham and Watkins
650 Town Center Drive, 20th Floor
Costa Mesa, California 92626
Attn: Robert K. Break, Esq.
Pardee Homes
1181 California Ave., Suite 103
Corona, CA 92881
Attn: Director of Community Development
Hewitt & O'Neil LLP
19900 MacArthur Blvd., Suite 1050
Irvine, California 92612
Attn: Dennis D. O'Neil, Esq.
Any party may change its address stated herein by giving notice, in writing, to the other parties.
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19 ATTORNEYS' FEES. If legal action is brought by either party against the other for breach of this Agreement, or to compel performance under this Agreement, the prevailing party shall be entitled to an award of reasonable attorneys' fees and costs. 20 TRANSFERS AND ASSIGNMENTS.
20.1 Right to Assign. The Developer shall have the right to sell, assign or transfer this Agreement and any and all of its rights, duties and obligations hereunder, in whole or in part, to any person or entity at any time during the tetni of this Agreement; provided, however, in no event shall the rights, duties and obligations conferred upon the Developer pursuant to this Agreement be at any time so transferred or assigned except through a transfer of an interest of the Developer in the Property, a portion . The assignment shall not be effective without the City's prior approval, which shall not be unreasonably withheld, to ensure that the assignment will not prevent the orderly development of the Project consistent with the Agreement or Development Plan. In the event of any such assignment, the transferee shall thereafter be solely liable for the performance of all obligations of the Developer relating to the portion of the Property, or interest therein, so transferred. Such transferee or the Developer shall notify the City, in advance, and in writing of their intent to transfer such obligations.
20.2 Release Upon Transfer. Upon the sale, transfer or assignment of the Developer's rights and interests under this Agreement as peiiuitted pursuant to Section 20.1, the Developer shall be released from its obligations under this Agreement and all of the Developer's obligations pursuant to the Development Plan, or other agreements assumed by transferee with respect to the Property, or portion thereof, so transferred, provided that (a) the Developer is not then in default under the Agreement, (b) the Developer or transferee has provided the City notice of such transfer and (c) the transferee executes and delivers to the City a written agreement in which (i) the name and address of the transferee is set forth and (ii) the transferee expressly and unconditionally assumes all of the obligations of the Developer under this Agreement with respect to the Property, or a portion thereof, so transferred. 21 COOPERATION IN THE EVENT OF LEGAL CHALLENGE. In the event of any legal action instituted by a third party or other governmental entity or official challenging the validity of this Agreement or any portion thereof, the parties hereby agree to cooperate in defending such action, subject to the provisions of Section 8. In the event of any litigation challenging the effectiveness of this Agreement, or any portion hereof, this Agreement shall remain in full force and effect while such litigation, including any appellate review, is pending. 22 EMINENT DOMAIN. No provision of this Agreement shall be construed to limit or restrict the exercise by the City of its power of eminent domain. 23 AUTHORITY TO EXECUTE. The person or persons executing this Agreement on behalf of the Developer warrant and represent that they have the authority to execute this Agreement on behalf of the Developer and warrant and represent that they have the authority to bind the Developer to the perfoiiiiance of its obligations hereunder.
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24 ESTOPPEL CERTIFICATES. The City shall at any time upon not less than thirty (30) days' prior written notice from the Developer execute, acknowledge and deliver to the Developer a statement in writing (i) certifying that this Agreement is unmodified and in full force and effect (or, if modified, stating the nature of such modification and certifying that this Agreement, as so modified, is in full force and effect); (ii) certifying the amounts of the fees, assessments and exactions that have been received from the Developer and what amounts, if any, remain outstanding; and (iii) acknowledging that there are not, to the City's knowledge, any defaults if any are claimed. Any such statement may be conclusively relied upon by any prospective purchaser, lender or joint venture partner.
25 RECORDATION. This Agreement and any amendment or cancellation hereto shall be recorded in the Official Records of the County of Riverside, by the City Clerk within the period required by Section 65868.5 of the Government Code.
26 PROTECTION OF MORTGAGE HOLDERS. The parties hereto agree that this Agreement shall not prevent or limit the Developer, in any manner, at the Developer's sole discretion, from encumbering the Property or any portion thereof or any improvement thereon by any mortgage, deed of trust or other security device securing financing with respect to the Property. The City acknowledges that the lenders providing such financing may require certain interpretations, estoppel certificates and modifications to this Agreement and agrees upon request, from time to time, to meet with the Developer and representatives of such lenders to negotiate in good faith any such request for interpretations, estoppel certificates or modifications.
The City will not unreasonably withhold its consent to any such requested interpretation, estoppel certificate or modification provided the same is consistent with the intent and purposes of this Agreement. The holder(s) of any mortgage, deed of trust or other security instrument encumbering the Property (each, a "Mortgagee") shall have the following rights and privileges:
26.1.1 Neither entering into this Agreement nor a breach of this Agreement shall defeat, render invalid, diminish or impair the lien of any mortgage on the Property made in good faith and for value, unless otherwise required by law.
26.1.2 Any Mortgagee which has submitted a request in writing to the City in the manner specified herein for giving notices, shall be entitled to receive written notification from City of any default by the Developer in the performance of the Developer's obligations under this Agreement.
26.1.3 If the City timely receives a request from a Mortgagee requesting a copy of any notice of default given to the Developer under the terms of this Agreement, the City shall provide a copy of that notice to the Mortgagee within ten (10) days of sending the notice of default to the Developer. Mortgagee's not party to this Agreement. If the cure period for a default by the Developer set forth in Section 15.1 above has expired and such default has not been cured, the Mortgagee shall be provided with an additional thirty (30) day period after the expiration of such cure period in which to commence all steps reasonably necessary to bring the Developer in compliance as required under this Agreement and thereafter diligently pursue such steps to completion. During such cure period, and if the default is ultimately cured, the City shall not teiriiinate this Agreement.
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26.1.4 Any Mortgagee who comes into possession of the Property, or any part thereof, pursuant to foreclosure of the mortgage or deed of trust, or deed in lieu of such foreclosure, shall take the Property, or part thereof, subject to the terms of this Agreement.
Notwithstanding any other provision of this Agreement to the contrary, no Mortgagee shall have an obligation or duty under this Agreement to perfoilii any of the Developer's obligations or other affiuiiiative covenants of the Developer hereunder, or to guarantee such performance; provided, however, that to the extent that any covenant to be perfoiiiied by the Developer is a condition precedent to the perfoiiiiance of a covenant by City, the performance thereof shall continue to be a condition precedent to City's perfoiinance hereunder, and further provided that any sale, transfer or assignment by any Mortgagee in possession shall be subject to the provisions of this Agreement. 27 SEVERABILITY OF TERMS. If any term, provision, covenant or condition of this Agreement shall be deteiinined invalid, void or unenforceable, the remainder of this Agreement shall not be affected thereby to the extent such remaining provisions are not rendered impractical to enforce.
28 SUBSEQUENT AMENDMENT TO AUTHORIZING STATUTE. This Agreement has been entered into in reliance upon the provisions of the Development Agreement Law in effect as of the Agreement Date. Accordingly, subject to Section 11.2 above, to the extent a subsequent amendment to the Development Agreement Law would affect the provisions of this Agreement, such amendment shall not be applicable to the Agreement unless necessary for this Agreement to be enforceable or unless this Agreement is modified pursuant to the provisions set forth in the Agreement and Government Code Section 65868 in effect on the Agreement Date. 29 INTERPRETATION AND GOVERNING LAW. This Agreement and any dispute arising hereunder shall be governed and interpreted in accordance with the laws of the State of California. Unless otherwise provided, any ambiguity concerning the content or application of the Development Agreement, arising as a result of any apparent conflict between (a) the conditions, teinis and requirements to be applied by City under the Development Agreement and (b) the conditions, teens and requirements previously imposed on the Project by the County of Riverside, shall be resolved by the City's Planning Director, subject to the appeal procedure set forth in the Development Code for appeals of staff determinations. 30 SECTION HEADINGS. All section headings and subheadings are inserted for convenience only and shall not affect any construction or interpretation of this Agreement. 31 INCORPORATION OF RECITALS AND EXHIBITS. Recitals A through L and attached Exhibits "A" through "D" are hereby incorporated herein by this reference as though set forth in full.
32 RULES OF CONSTRUCTION AND MISCELLANEOUS TERMS.
32.1 Gender. The singular includes the plural; the masculine gender includes the feminine; "shall" is mandatory, "may" is permissive.
32.2 Time of Essence. Time is of the essence regarding each provision of this Agreement in which time is an element.
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32.3 Cooperation. Each party covenants to take such reasonable actions and execute all documents that may be necessary to achieve the purposes and objectives of this Agreement.
OCA562979.I
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The parties have executed this Development Agreement on the date and year first written above.
"City"
THE CITY OF BEAUMONT, a
municipal corporation of the State of California
By:
Brian DeForgeVlayor
"Developer"
OAK VALLEY PARTNERS, L.P., a Texas
limited partnership qualified to do business in
California
By: Oak Valley -Hunt, Inc., a Texas corporation,
Managing General Partner
c
By:
D. Craig Ma r ra, President
PARDEE HOMES
By:
SIGNED AND CERTIFIED THAT A COPY OF
THIS DOCUMENT HAS BEEN DELIVERED TO
THE MAYOR OF THE CITY COUNCIL
By:
City Clerk
MichaelZ to
Director of Community Development
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State of Texas }
County of Dallas }
On March 18, 2003, before me, Dyann Moore, Notary Public personally appeared D. Craig Martin personally known to me to be the person whose name is subscribed to the within instrument and acknowledged to me that he executed the same in his authorized capacity, and that by his signature on the instrument the person or the entity upon behalf of which the person acted, executed the instrument.
WITNESS my hand and official seal.
Signature Notary Public
Though the information below is not required by law, it may prove valuable to persons relying on the document and could prevent fraudulent removal and reattachment of this form to another document Description of Attached Document
Title or Type of Document: Pre -Annexation and Development Agreement Document Date March 18, 2003 Number of Pages: 43 Total
Capacity(ies) Claimed by Signer
Signer's Name: D. Craig Martin
❑ Corporate Officer — Title (s) : President
Signer is representing Oak Valley Partners, L.P.
State of California
County of Riverside
SE ACM IftiLEDGEVIE
s.
On May 5, 2003 before me, Shaina J. Harwoo_
and Title of Oi
Date
personally appeared Brian DeForge
Na
g. Jane Doe, Notary Public
Names) of Signers)
X personally known to me
L proved to me on the basis of satisfactory
evidence
to be the persons whose name)" is/.ar-e
subscribed to the within instrument and
acknowledged to me that he/sheithey executed
the same in hisinehlthaki authorized
capacity and that by his/heWtherr
signature on the instrument the perso
the entity upon behalf of which the person
acted, executed the instrument.
WITNESS my hand and offici I seal.
9 — OPTIONAL
Though the information below is not required by law, it may prove valuable to persons relying on the document and could prevent fraudulent removal and reattachment of this form to another document.
Description of Attached Document
Title or Type of Document: Pre —Annexation & Development Agreement Document Date: May 5 , 2003
Signer(s) Other Than Named Above: None
Number of Pages:
Capacity(ies) Claimed by Signer
Signer's Name: Brian DeForge
[Ii Individual
Corporate Officer — Title(s):
• Partner — LI Limited L', General
LJ Attorney -in -Fact
L Trustee
L Guardian or Conservator
CX Other: Mayor
Signer Is Representing: City of Beaumont
C 1999 National Notary Association • 9350 De Soto Ave., P.Q. Box 2402 • Chatsworth, CA 91313-2402* www.natonainotary.org Prod. No. 5907
Top of thumb here
Reorder; Call Toll -Free 1-800-876-6827
0 ALL® CKNOVILEEDGMENT
State of California
SS.
County of RIVERSIDE
On MARCH 14, 2003 , before me, LORRAINE R. DOMMER, NOTARY PUBLIC Date Name and Title of Officer (e.g., 'Jane Doe, Notary Public') personally appeared MICHAEL TAYLOR
LORRAINE R. DOMMER
Comm. #1260566
NOTARY PUBLIC - CALIGORNLA >
LOS ANGELES COUNTY —°
My Comm. Expires April 14, 2004
accoccoc-
Place Notary Seal Above
Name(s) of Slgner(s)
personally known to me
[] proved to me on the basis of satisfactory
evidence
to be the person(s) whose names) is/are,
subscribed to the within instrument and
acknowledged to me that he/she/they executed
the same in his/her/their authorized
capacityjiesj, and that by his/her/their
signature(s) on the instrument the person(s)', or
the entity upon behalf of which the person(s)°
acted, executed the instrument.
WITNESS my hand and official seal.
OPTIONAL
Signature of Notary Public
Though the information below is not required by law, it may prove valuable to persons relying on the document and could prevent fraudulent removal and reattachment of this forrn to another document.
Description of Attached Document
Title or Type of Document: PRE —ANNEXATION & DEVELOPMENT AGREEMENT Document Date: MARCH 14, 2003
Number of Pages:
Signer(s) Other Than Named Above: NONE
Capacity(ies) Claimed by Signer
Signer's Name: MICHAEL TAYLOR
Individual
XX Corporate Officer — Title(s): DIRECTOR OF COMMUNITY DEVELOPMENT Partner — ❑ Limited E General
El Attorney in Fact
Trustee
El Guardian or Conservator
CI Other:
Signer Is Representing: PARDEE HOMES
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Reorder: Call Toll -Free 1-800-876-6827
11 )
EXHIBIT A
LEGAL DESCRIPTION OF THE PROPERTY
PARCELS A, B, C, D, E, F, G, H, K, L, Q and R OF LOT LINE ADJUSTMENT 4188 RECORDED FEBRUARY 2, 2000 AS INSTRUMENT NO. 2000-
039255 AND AS PERFECTED AND SHOWN ON RECORD OF SURVEY
FILED IN BOOK 109 OF RECORDS OF SURVEY AT PAGES 7 THROUGH 13, INCLUSIVE, ALL OF OFFICIAL RECORDS OF RIVERSIDE COUNTY, STATE OF CALIFORNIA.
EXHIBIT B
PRE -ANNEXATION AND DEVELOPMENT AGREEMENT
BETWEEN THE CITY OF BEAUMONT AND
OAK VALLEY PARTNERS, L.P. AND PARDEE HOMES
MAP OF THE PROPERTY
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-IX
II
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EXHIBIT C
LIST OF PERMITS AND APPROVALS
Specific Plan 318 ad EIR 418
EXHIBIT D
CONDITIONS OF APPROVAL
Exhibit D
OC1555823.3
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CITY OF BEAUMONT
CONDITIONS OF APPROVAL
SPECIFIC PLAN 318
HOLD HARMLESS
The applicant or any successor -in -interest shall defend, indemnify, and hold harmless the City of Beaumont (City), its agents, officers, or employees from any claim, action, or proceeding against the City, its agents, officers, or employees to attack, set aside, void or annul an approval of the City, its advisory agencies, appeal boards, or legislative body concerning this SPECIFIC PLAN. The City will promptly notify the applicant of any such claim, action, or proceeding against the City and will cooperate fully in the defense.
If the City fails to promptly notify the subdivider of any such claim, action, or proceeding or fails to cooperate fully in the defense, the subdivider shall not, thereafter, be responsible to defend, indemnify, or hold harmless the City.
2. DEFINITIONS
The words identified in the following list that appear in all capitals in the attached conditions of Specific Plan No. 318 shall be henceforth defined as follows:
SPECIFIC PLAN = Riverside County Specific Plan No. 318
CHANGE OF ZONE = City of Beaumont Change of Zone No. 02-RZ-03.
EIR = Riverside County Environmental Impact Report No. 418.
SPECIFIC PLAN DOCUMENT
Specific Plan No. 318 shall consist of the following:
a. Specific Plan Document, which must include, but to be limited to, the following items:
1. City Council Specific Plan Resolution.
2. Conditions of Approval.
3. Specific Plan Zoning Ordinance Text.
4. Land Use Plan in both 8 't" x 11" black -and -white and 11"x 17" color formats
5. Specific Plan text.
6. Descriptions of each Planning Area in both graphical and narrative formats.
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Specific Plan 31S Beaumont Conditions
b. Environmental Impact Report No. 418 Document, which must include, but not be limited to, the following items:
l . Mitigation Reporting/Monitoring Program (M/M).
2. Agency Notice of Preparation (NOP).
3. Draft EIR.
4. Agency Notice of Completion (NOC).
5. Comments on the NOC.
6. Final EIR, including the responses to comments on the NOC.
7. Technical Appendices
8, Initial Study/Addendum for Oak Valley Specific Plan 318/ Environmental Impact Report No. 418 Amendment
If any specific plan conditions of approval differ from the specific plan text or exhibits, the specific plan conditions of approval shall take precedence.
4. ORDINANCE REQUIREMENTS
The development of the property shall be in accordance with the mandatory requirements of all City ordinances not in conflict with the Specific Plan and state laws.
BUILDING AND SAFETY
5. APPLICABLE GRADING REGULATIONS
Anything to the contrary, proposed by SP 318, shall not supersede the following: A11 grading shall conform to the Uniform Building Code, City's General Plan, and all other relevant laws, rules and regulations governing grading in City.
6. COMPLIANCE WITH SOILS REPORTS
All grading shall be performed in accordance with the recommendations of the approved- geotechnical/soils reports for this Specific Plan.
7. ALL CLEARANCES REQUIRED BEFORE PERMIT
Prior to issuance of a grading permit, all certifications affecting grading shall have written clearances. This includes, but is not limited to, additional environmental assessments, erosion control plans, geotechnical/soils reports, and departmental clearances.
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Specific Plan 318 Beaumont Conditions
FIRE DEPARTMENT
8. HAZARDOUS FIRE AREA
The specific plan is located in the "Hazardous Fire Area" of Riverside County as shown on a map on file with the Clerk of the Board of Supervisors. Any building constructed on lots created by this project shall comply with the special construction provisions contained in City Ordinances for Hazardous Fire Areas. and the California Code of Regulations, Title 14, and Public Resources Code 4290.
9. WATER MAINS
AU water mains and fire hydrants providing required fire flows shall be constructed in accordance with the appropriate sections of Riverside County Ordinance 460 and/or No. 787, subject to the approval by the Riverside County Fire Department.
10. ROOFING MATERIAL
The proposed project area lies within the VERY HIGH FIRE HAZARD SEVERITY ZONE as shown on the California Fire Classification maps on file. All buildings shall be constructed with a class "A" fire retardant roofing material as per the 1999 California Fire Code. Wood shingles and shakes are not recommended as a roof or other exterior covering material.
11. OPEN SPACE
Prior to approval of any development for lands adjacent to open space areas, a fire protection/vegetation management (fuel modification) plan shall be submitted to the Riverside County Fire Department for review and approval. The Homeowner's Association or appropriate management entity shall be responsible for maintaining the elements to the plan.
12. FINAL FIRE REQUIREMENTS
Final fire protection requirements and impact mitigation measures will be determined when specific project plans are submitted.
13. DISCLOSURE
This project lies within the VERY HIGH FIRE HAZARD SEVERITY ZONE as shown on the Fire Hazard Zone Maps of California. All roof construction shall meet a minimum class "A" rating as described in the current model building code of California.
A fire fuel analysis of the open space/wildlands within and outside the project area may be required prior to submitting a fuel modification plan.
NOTICE -- The transferor of real property shall disclose to the transferee that this project lies within a VERY HIGH FIRE HAZARD area.
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Specific Plan 318 Beaumont Conditions
PUBLIC WORKSDEPARTMENT
14. GREENBELT, BASIN MAINTENANCE
This project proposes detention basins and green belt channels which will require maintenance by a public agency, or a guarantee of maintenance by a public agency in the event the responsible private party fails to meet its maintenance obligation. In particular the detention basin adjacent to Planning Areas 9 and 10 would require such a guarantee because the proposed downstream development would depend on it for public health and safety. These types of flood control facilities are selected at the discretion of the applicant to complement the nature of the proposed development, and do not have a regional benefit commensurate with the maintenance costs which are anticipated to be excessively high. Therefore, to ensure the public is not unduly burdened for future costs, prior to final approval or recordation of any case protected by these drainage facilities, the City will require an acceptable financial mechanism to be implemented to provide for reimbursement of maintenance costs in perpetuity. This may consist of a mechanism to assess individual benefiting property owners, or other means approved by the City. If an acceptable maintenance mechanism cannot be developed, the project should be redesigned to eliminate all high maintenance cost features.
PLANNING DEPARTMENT
15. MAINTAIN PLAT' NNING AREAS
ALL PLANNING AREA NUMBERS SHALL BE MAINTAINED THROUGHOUT THE LIFE
OF THE SPECIFIC PLAN, UNLESS CHANGED THROUGH THE APPROVAL OF A
SPECIFIC PLAN AMENDMENT OR SPECIFIC PLAN SUBSTANTIAL CONFORMANCE ACCOMPANIED BY A REVISION TO THE COMPLETE SPECIFIC PLAN DOCUMENT.
16. TRAFFIC STUDY CONDITIONS
The City has reviewed the traffic study submitted by LSA Associates, Inc. for the referenced project. The study has been prepared in accordance with accepted traffic engineering standards and practices. The study analyzed year 2020 Buildout Impacts for the project and surrounding intersections.
The study indicates that it is possible to achieve a Level of Service "C" for the following intersections (some of which will require additional construction for mitigation at the time of development):
Singleton Road (NS)/I-10 Fwy EB Ramps (EW)
Singleton Road (NS)/I-10 Fwy WB Ramps (EW)
Singleton Road (NS)/Calimesa Boulevard (EW)
Cherry Valley Boulevard (NS)/I-10 Fwy EB Ramps (EW)
Cherry Valley Boulevard (NS)/I-10 Fwy WB Ramps (EW)
Cherry Valley Boulevard (NS)/Calimesa Boulevard (EW)
Nancy Avenue (NS)/Cherry Valley Boulevard (EW)
Beaumont Avenue (NS)/Cherry Valley Boulevard (EW)
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Specific Plan 318 Beaumont Conditions
Brookside Avenue (NS)/Desert Lawn Drive (EW)
Nancy Avenue (NS)/Brookside Avenue (EW)
Oak Valley P'way (NS)/I-10 Fwy EB Ramps (EW)
Oak Valley P'way (NS)/I-10 Fwy WB Ramps (EW)
Beaumont Avenue (NS)/I-10 Fwy EB Ramps (EW)
Beaumont Avenue (NS)/I-10 Fwy WB Ramps (EW)
Potrero Boulevard (NS)/SR-60 EB Ramps (EW)
Potrero Boulevard (NS)/Champions Drive (EW)
"J" Street (NS)/San Timoteo Canyon Road (EW)
"J" Street (NS/"G" Street (EW)
San Timoteo Canyon Road (NS)/"G" Street (EW)
The study indicates that it is possible to achieve a Level of Service "D" for the following intersections (some of which will require additional construction for mitigation at the time of development).
Calimesa Boulevard (NS)/Brookside Avenue (EW)
Beaumont Avenue (NS)/Brookside Avenue (EW)
Oak Valley Estates (NS)/ Oak Valley P'way
Nancy Street (NS)/14th Street (EW)
Beaumont Avenue (NS) Oak Valley P'way)
Elm Avenue (NS)/8th Street (EW)
California Avenue (NS)/6th Street (EW)
Potrero Boulevard (NS)/SR-60 WB Ramps (EW)
Mitigation to improve operations of the following intersection to the required Level of Service standards of the applicable jurisdictions (LOS "C" within the County of Riverside and the City of Calimesa, and LOS "D" within the City of Beaumont) for Year 2020 Buildout conditions is problematic, due either to existing conditions or to infeasible geometries:
Singleton Road (NS)/Woodhouse Road (EW)
Cherry Valley Boulevard (NS)/Roberts Road -Desert Lawn Drive (EW) Desert Lawn Drive (NS)/Champions Drive (EW)
Singleton Road (NS)/ San Timoteo Canyon Road (EW)
Champions Drive (NS)/San Timoteo Canyon Road (EW)
Beaumont Avenue (NS)/6th Street (EW)
The associated conditions of approval incorporate mitigation measures identified in the traffic study which are necessary to achieve or maintain the required level of service.
17. ROADWAY IMPROVEMENTS
Roadway links wholly within the boundaries of Oak Valley Specific Plan No. 318, as well as the entirety of Champions Drive, shall be constructed at the time of project development per the requirements of the specific plan. Roadway links along the perimeter of the specific plan area (San Timoteo Canyon Road) shall be constructed to 005638673
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Specific Plan 318 Beaumont Conditions
their full half -width section concurrent with development of the adjacent Oak Valley, Specific Plan No. 318 Planning Areas. Intersections located within and adjacent to the boundaries of Oak Valley Specific Plan No. 318 (San Timoteo Canyon Road at "G" Street and "J" Street, Champions Drive at "J" Street Desert Lawn Drive) shall be constructed concurrent with the roadways with the geometries illustrated in Figure D.1.12c, unless subsequent traffic impact analyses demonstrate that lesser geometries can be provided which meet applicable LOS standards, as approved by the City Engineer.
18. "P" STREET IMPROVEMENTS
"P" Street shall be constructed to County of Riverside Standard No. 102, Modified Secondary Highway (56788' R.O.W.) from Champions Drive to San Timoteo Canyon Road.
19. WAR ANTED TRAFFIC SIGNALS
The project is responsible for the following traffic signals when warranted through subsequent traffic studies done for implementing projects within the boundaries of the specific plan:
San Timoteo Canyon Road/"G" Street
San Timoteo Canyon Road/"J" Street
Desert Lawn Drive/Champions Drive
Potrero Boulevard/Champions Drive
Champions Drive/"J" Street
20. GEOMETRICS
The following intersections shall be improved to the geometries as described.
Potrero Boulevard (NS)/San Timoteo Canyon Road (EW) shall be improved to provide the following geometrics:
Southbound: Two left turn lanes, one right turn lane.
Eastbound: One left turn lane, two through lanes.
Eastbound: Two through lanes, one right turn lane.
Potrero Boulevard (NS)/Champions Drive (EW) shall be improved to provide the following geometrics:
Northbound: Two left turn lanes, one right turn lane.
Southbound: NA
Eastbound: Two through lanes.
Westbound: Two left turn lanes, two through lanes.
Desert Lawn Drive (NS)/Champions Drive (EW) shall be improved to provide the following geometries:
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Specific Plan 318 Beaumont Conditions
Northbound: NA
Southbound: Two left turn lanes, one right turn lane.
Eastbound: One left turn lane, two through lanes.
Westbound: Two through lanes, one right turn lane.
"J" Street (NS)/San Timoteo Canyon Road (EW) shall be improved to provide the following geometries:
Northbound: NA
Southbound: One left turn lane, one right turn lane.
Eastbound: One left turn lane, two through lanes.
Westbound: Two through lanes, one right turn lane.
"J" Street (NS)/Champions Drive (EW) shall be improved to provide the following geometries:
Northbound: Two through lanes, one right turn lane.
Southbound: Two left turn lanes, two through lanes.
Eastbound: NA
Westbound: One left turn lane, one right turn lane
"J" Street (NS)/"G" Street (EW) shall be improved to provide the following geometries:
Northbound: One left turn lane, two through lanes, one through/right turn lane.
Southbound: Two left turn lanes, three through lanes.
Eastbound: Two left turn lanes, one through/right turn lane.
Westbound: One left turn lane, one through lane, one through/right turn lane. "G" Street (NS)/San Timoteo Canyon Road (EW) shall be improved to provide the following geometries:
Northbound: NA
Southbound: One left turn lane, one right turn lane.
Eastbound: One left turn lane, two through lanes.
Westbound: Two through lanes, one right turn lane.
21. TRANSPORTATION MITIGATION FEE
The project proponent shall be required to pay all transportation impact and signal mitigation fees in effect in the City of Beaumont. The project proponent will receive credit against transportation impact and signal mitigation fees for improvements installed which are part of the transportation impact and signal mitigation fee schedule of improvements or similarly covered by the fee(s).
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Specific Plan 318 Beaumont Conditions
22. "G" STREET IMPROVEMENTS
Concurrent with the construction of "G" Street within the boundaries of Oak Valley Specific Plan No. 318, "G" Street shall be constructed offsite to intersect with ".1" Street as Modified Collector Street (78' R.O.W.)
PARKS AND RECREATION DEPARTMENT
23. TRAIL CONSTRUCTION
Prior to the approval of any implementing project, including but not limited to grading permits, the applicant shall have in place a funding or construction mechanism, as approved by the City, to insure the construction of the regional trail along San Timoteo Canyon Road.
PLANNING DEPARTMENT
24. PLANNING AREA STANDARDS
Prior to the approval of any implementing project within the SPECIFIC PLAN (i.e., tract map, parcel map, use permit, plot plan, etc.), the following condition shall be placed on the implementing project, with the blanks filled in at the implementing project:
"This implementing project is within Planning Area[s] of the SPECIFIC PLAN.
Accordingly, this project is subject to these development standards:
1. All residential lots must be at least [square feet/acres].
2. The average residential lot size must be at least [square feet/acres].
3. The target density of this planning area is to du/ac.
4. The target range of the number of dwelling units in this planning area is to
5. Entry monumentation is required at the intersection of and
6. Roadway landscaping is required at
7 Recreational trails are located at
8 This implementing map is conditioned to build a park at prior to the th building permit.
9. [Residential] [Commercial] [Industrial] buildings must conform to the design guidelines on pages to of the SPECIFIC PLAN."
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Specific Plan 318 Beaumont Conditions
25. MITIGATION MONITORING PROGRAM (GENERAL)
Prior to approval of any implementing project within the SPECIFIC PLAN (i.e., tract map, parcel map, use permit, plot plan, etc.), the following condition shall be placed on the implementing project:
"The EIR prepared for the SPECIFIC PLAN imposes specific mitigation measures and monitoring requirements on the project. Certain conditions of the SPECIFIC PLAN and this implementing project constitute reporting/monitoring requirements for certain mitigation measures."
26. NON -IMPLEMENTING MAPS
Prior to approval of any implementing project within the SPECIFIC PLAN (i.e., tract map, parcel map, use permit, plot plan, etc.), the following condition shall be placed on the implementing project:
"A land division filed for the purposes of phasing or financing shall not be considered an implementing development application for the purposes of the Planning Department's conditions of approval.
Should this project be an application for phasing or financing, all of the other conditions in this implementing project with a prefix of "SP" will be considered as NOTAPPLICABLE, and this condition shall be considered as MET. Should this project not be an application for phasing or financing, this condition shall be considered as NOT APPLICABLE."
27. PLANNING AREA SY TABLE
Prior to the approval of any implementing Project within the SPECIFIC PLAN (i.e., tract map, parcel map, use permit, plot plan, etc.), the following condition shall be placed on the implementing project:
The following table shows the residential map requirements of the adopted SPECIFIC PLAN:
Density Range
Planning Areas: Min. lot size [sq. ft.] [du/acre] Target Density 00563867..3
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Specific Plan 318 Beaumont Conditions
1 2
3 4
7B
8 10
11 12
14 15
16 18
19 20
22 23B
25 26
30 32
36 38
39 4,000
5,000
5,000
3,800
10,000
5,500
3,800
6,000
5,000
4,000
7,000
6,000
5,000
8,000
4,000
5,500
10,000
3,800
8,000
6,000
4,000
4,000
3,800
5,000
5-8
2-5
2-5
8-12
.2-2
2-5
8-12
2-5
2-5
12-20
2-5
2-5
5-8
2-2
2-5
2-5
2-2
8-12
2-5
2-5
5-8
5-8
8-12
2-5
6.0 4.0
4.0 10.0
1.0 4.0
10.0 4.0
4.0 20.0
4.0 4.0
6.0 2.0
4.0 4.0
1.0 12.0
4.0 4.0
6.0 6.0
12.0 4.0
This condition shall be considered MET if the implementing residential land division proposal is within the above mentioned standards. This condition may only be considered as NOT APPLICABLE if the implementing project is concurrent with a specific plan amendment that proposes to change the above -mentioned standards, or if this implementing project is either commercial or industrial in nature.
28. PROJECT LOCATION EXHIBIT
Prior to approval of any implementing project within the SPECIFIC PLAN (i.e., tract map, parcel map, use permit, plot plan, etc.), the following condition shall be placed on the implementing project:
"The applicant shall provide to the Planning Department an 8 1/z" x 11" exhibit showing where in the SPECIFIC PLAN this project is located. The exhibit shall also show all prior implementing projects within the SPECIFIC PLAN that have already been approved.
This condition shall be considered MET once the applicant provides the Planning Department with the required information. This condition may not be DEFERRED." OC\563867.3
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Specific Plan 318 Beaumont Conditions
29. ACOUSTICAL STUDY REQUIRED
Prior to the approval of any implementing project within Planning Areas 1, 10, 32, 36, and 38 of the SPECIFIC PLAN (i.e., tract map, use permit, plot plan, etc.), the following condition shall be placed on the implementing project:
"PRIOR TO BUILDING PERMIT APPROVAL, an acoustical study shall be submitted to the Planning Department for review and approval.
This condition shall be considered MET if the relevant study has been approved by the Planning Department. This condition may be considered as NOT APPLICABLE if the Planning Department determines that the required study is not necessary.
30. OAK TREE PLAN REQUIREDPRIOR TO THE APPROVAL OF ANY
IMPLEMENTING PROJECT (LE., TRACT MAP, PARCEL MAP, USE PERMIT, PLOT PLAN, ETC.) WITHIN PLANNING AREAS 10, 11, 15, 16, 21A, 21B, 22, AND 23B OF THE SPECIFIC PLAN, THE FOLLOWING CONDITION SHALL BE PLACED ON THE LEMENTING PROJECT:
"PRIOR TO PROJECT APPROVAL, an oak tree inventory and conservation plan shall be developed providing detail by planning area. Each oak shall be mapped with its location numbered, its caliper (diameter) at breast height and its drip line (Tree canopy) diameter identified, rated as to qualitative condition and desirability for retention, and assigned a recommended mitigation replacement ratio if removal were required. The plan shall also include general mitigation guidelines covering how oak trees to be retained will be protected during construction activities, how oak trees to be removed will be monitored, and how mitigation plantings for those oak trees removed will be accomplished. Additionally, the plan shall include the following requirements: 1) No mass grading will be permitted within the oak woodlands on site. 2) Residential lots within oak woodlands will be individually sited to avoid mature oak trees (>12" diameter -breast -height (dbh) ) if at all possible. 3) No slab foundations shall be permitted within the drip -line (widest extent of canopy cover) of oak trees. No irrigated sod shall be planted within the drip -line of oak trees. The oak tree plan shall be submitted to the Planning Department for review and approval.
This condition shall be considered MET if the relevant inventory and conservation plan has been approved by the Planning Department. This condition may be considered as NOT APPLICABLE if the Planning Department determines that the required plan is not necessary."
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Specific Plan 318 Beaumont Conditions
31. DESIGN PLAN REQUIREDPRIOR TO THE APPROVAL OF ANY IMPLEMENTING PROJECT (I.E., TRACT MAP, PARCEL MAP, USE PERMIT, PLOT PLAN, ETC.) WITHIN PLANNING AREAS 1-4, 8, 10, 12, 14, 18, 20, 22, 25, 32, 36, 38, OR 39 OF
THE SPECIFIC PLAN, THE FOLLOWING CONDITION SHALL BE PLACED ON THE IMPLEMENTING PROJECT:
"PRIOR TO PROJECT APPROVAL, the developer shall submit a development plan to the Planning Department for review and approval, showing which amenities described in Exhibit D (which follows this condition) are applicable to this project.
This condition shall be considered MET when the Planning Department approves a plan showing specifically how a given development project will implement the general design concepts in Exhibit D. The development plan submittal may be DEFERRED prior to building permit issuance when incorporated into the Final Site Plan for the proposed project. This condition shall not be considered NOT APPLICABLE."
32. WATER ANALYSIS/AGREEMENT
Prior to the recordation of any implementing project (i.e., tract map, parcel map, etc.) or prior to the issuance of a building permit for any use permit (i.e., conditional use permit, plot plan, etc.), whichever come first, within any planning area of the SPECIFIC PLAN, the Planning Department shall receive an executed agreement between the developer and either (1) the San Gorgonio Pass Water Agency, (2) the Beaumont -Cherry Valley Water District, or (3) another qualified water service agency. The agreement shall provide for sufficient supplemental water supply to the development for domestic purposes.
This condition shall be considered MET if the applicant submits a satisfactory agreement to the Planning Department. This condition shall be considered NOT APPLICABLE if the Planning Department determines that significant new information (i.e., other documented additions to water supply or documented enhancements to groundwater recharge capability applicable to the project vicinity, etc.) would make such an agreement unnecessary. This condition cannot be DEFERRED.
33. PALED STUDY REQUIRED
Prior to the approval of any implementing project within any planning area of the SPECIFIC PLAN (i.e., tract map, parcel map, use permit, plot plan, etc.), the following condition shall be placed on the implementing project:
"PRIOR TO GRADING PERMIT ISSUANCE, a Paleontological Resources Impact Mitigation Program (PRIMP) study shall be submitted to the Planning Department for review and approval.
This condition shall be considered MET if the relevant study has been approved by the Planning Department. This condition may be considered as NOT APPLICABLE if the Planning Department determines that the required study is not necessary.
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Specific Plan 318 Beaumont Conditions
34. GEO STUDY REQUIRED
Prior to the approval of any implementing project (i.e., tract map, parcel map, use permit, plat plan, etc.) for which the Public Works Director requires further Geotechnical analysis, the following condition shall be placed on the implementing project:
"PRIOR TO PROJECT APPROVAL", a Geotechnical investigation and seismic analysis shall be submitted to the Public Works Director for review and approval. The study shall treat the following issues:
1. Slope Stability / Landslide potential
2. Faulting
3. Treatment of recent alluvium
4. Shallow groundwater areas
5. Any other geologicaUGeotechnical issues identified by the Public Works Director as pertinent to development within the planning area(s) covered by the implementing development application.
This condition shall be considered MET if the relevant study has been approved by the Planning Department. This condition may be considered as NOT APPLICABLE if the Planning Department determines that the required study is not necessary.
The submittal of this study mandates that a CEQA determination of an Addendum to a previously adopted EIR be made, at a minimum."
35. AMENDMENT REQUIRED
Prior to the approval of any implementing project within the SPECIFIC PLAN (i.e., tract map, parcel map, use permit, plot plan, etc.), the following condition shall be placed on the implementing project:
"If this implementing project meets any of the following criteria, an amendment to the SPECIFIC PLAN shall be required and processed concurrently with this implementing project:
1. The implementing project adds any area to, or deletes area from, the SPECIFIC PLAN;
2. The implementing project proposes a substantially different use than currently allowed in the SPECIFIC PLAN or as determined by the Planning Director. 00563867.3
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Specific Plan 318 Beaumont Conditions
Any amendment to the SPECIFIC PLAN, even though it may affect only one portion of the SPECIFIC PLAN, shall be accompanied by a complete specific plan document which includes the entire specific plan, including both changed and unchanged parts.
This condition shall be considered MET if the specific plan amendment has been filed, and NOT APPLICABLE if a specific plan amendment is determined to be unnecessary."
36. COMMON AREA
Prior to the approval of any implementing land division project within the SPECIFIC PLAN (i.e., tract map or parcel map), the following condition shall be placed on the implementing application:
PRIOR TO MAP RECORDATION, the following procedures for common area maintenance procedures shall be complied with:
a. A permanent master maintenance organization shall be established for the specific plan area, to assume ownership and maintenance responsibility for all common recreation, open space, circulation systems and landscaped areas. The organization may be public or private. Merger with an area -wide or regional organization shall satisfy this condition provided that such organization is legally and financially capable of assuming the responsibilities for ownership and maintenance. If the organization is a private association then neighborhood associations shall be established for each residential development, where required, and such associations may assume ownership and maintenance responsibility for neighborhood common areas. b. Unless otherwise provided for in these conditions of approval, common open areas shall be conveyed to the maintenance organizations as implementing development is approved or any subdivision as recorded.
c. The maintenance organization shall be established prior to or concurrent with the recordation of the first land division.
d. The common areas to be maintained by the master maintenance organization shall included, but not be limited to, the following: Planning Areas 5, 7A, 13, 17, 21B, 23A, 24, 31B, 34, and 37."
37. CC&R'S RES PUB COMMON AREA
Prior to the approval of any implementing land division project (i.e., tract map or parcel map), the following condition shall be applied to the land division PRIOR TO MAP RECORDATION if the permanent master maintenance organization referenced in the condition entitled "SP — Common Area Maintenance" is a public organization:
"The applicant shall convey to the City fee simple title, to all common open space areas, free and clear of all liens, taxes, assessments, leases (recorded or unrecorded) and easement, except those easements which in the sole discretion of the City are acceptable.
As a condition precedent to the City accepting title to such areas, the applicant shall OC\563867.3
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Specific Plan 318 Beaumont Conditions
notify the Planning Department that the following documents shall be submitted to the office of the Planning Director and submit said documents for review along with the current fee, which shall be subject to City approval:
1. A cover letter identifying the project for which approval is sought;
2. A signed and notarized declaration of covenants, conditions and restrictions;
3. A sample document, conveying title to the purchase, of an individual lot or unit which provides that the declaration of covenants, conditions and restrictions is incorporated therein by reference; and,
The declaration of covenants, conditions and restrictions submitted for review shall a) provide for a minimum term of 60 years, b) provide for the establishment of a property owners' association comprised of the owners of each individual lot or unit as tenants in common, and c) contain the following provision verbatim:
"Notwithstanding any provision in this Declaration to the contrary, the following provisions shall apply:
The property owners' association established herein shall, if dormant, be activated, by incorporation or otherwise, at the request of the City, and the property owners' association shall unconditionally accept from the City, upon the City's demand, title to all or any part of the `common area' more particularly described on Exhibit ` ' attached hereto. Such acceptance shall be through the president of the property owner's association, who shall be authorized to execute any documents required to facilitate transfer of the `common area'. The decision to require activation of the property owners' association and the decision to require that the association unconditionally accept title to the `common area' shall be at the sole discretion of the City.
In the event that the `common area', or any part thereof, is conveyed to the property owners' association, the association, thereafter, shall own such `common area', and shall not sell or transfer such `common area' or any part thereof, absent the prior written consent of the Planning Director or the association shall have the right to assess the owner of each individual lot or unit for the reasonable cost of maintaining such `common area', and shall have the right to lien the property of any such owner who defaults in the payment of a maintenance assessment. An assessment lien, once created, shall be prior to all other liens recorded subsequent to the notice of assessment or other document creating the assessment lien.
This declaration shall not be terminated, `substantially' amended, or property deannexed therefrom absent the prior written consent of the Planning Director. A proposed amendment shall be considered `substantial' if it affects the extent, usage or maintenance of the `common area' established pursuant to this Declaration. 005638673
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Specific Plan 318 I3eaunlont Conditions
In the event of any conflict between this Declaration and the Articles of Incorporation, the Bylaws, or the property owners' association Rules and Regulations, if any, this Declaration shall control."
Once approved by the Planning Director, the declaration of covenants, conditions and restrictions shall be recorded by the Planning Department with one copy retained for the case file.
38. ARCHEO MITIGATION MONITORING PROGRAM
Prior to the approval of any implementing project within the SPECIFIC PLAN (i.e., tract map, parcel map, use permit, plot plan, etc.), the following condition shall be placed on the implementing project:
"PRIOR TO THE ISSUANCE OF GRADING PERMITS, the project applicant shall enter into an agreement with a qualified archaeologist. This agreement shall include, but not be limited to, the preliminary mitigation and monitoring procedures to be implemented during the process of grading, as found in the EIR. A copy of said agreement shall be submitted to the Planning Department. No grading permits will be issued unless the preliminary mitigation and monitoring procedures required prior to grading permits as described in the EIR are substantially complied with."
39. GENERIC MITIGATION MONITORING PROGRAM
Prior to the approval of any implementing project within the SPECIFIC PLAN (i.e., tract map, parcel map, use permit, plot plan, etc.), the following condition shall be placed on the implementing project:
"PRIOR TO THE ISSUANCE OF GRADING PERMITS, the project applicant shall provide to the Planning Department a detailed proposal for complying with the preliminary mitigation and monitoring procedures described in the EIR during the process of grading. Grading permits will not be issued unless the preliminary mitigation and monitoring procedures as described in the EIR are substantially complied with."
40. USFWS/CDFG CLEARANCES
Prior to the approval of any implementing project within the SPECIFIC PLAN (i.e., tract map, parcel map, use permit, plot plan, etc.) which may result in the disturbance of on - site habitat occupied by any species determined to be endangered or threatened by the United States Fish and Wildlife Service (USFWS) or California Department of Fish and Game (CDFG), the following condition shall be placed on the implementing project:
"PRIOR TO THE ISSUANCE OF GRADING PERMITS, the applicant shall obtain necessary take permit(s) from the USFWS and CDFG. A copy of said permit(s) shall be submitted to the Planning Department."
001563867.3
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Specific Plan 318 Beaumont Conditions
41. CDFG (SECT 1601/1603)
Prior to the approval of any implementing project (i.e., tract map, parcel map, use permit, plot plan, etc.) within Planning Areas 1, 5, 6, 9, 10, 14, 23B, 29, 30, 31B, 32, 33A, 33B, 34, 36, 37, 38, and 39 of the SPECIFIC PLAN, which may propose grading or construction within or along the banks of any blue -line streams, the following condition shall be placed on the implementing project:
"PRIOR TO THE ISSUANCE OF GRADING PERMITS, the applicant shall obtain written notification to the Planning Department that the appropriate California Department of Fish and Game notification pursuant to Sections 1601/1603 of the California Fish and Game Code has taken place, or obtain an "Agreement Regarding Proposed Stream or lake Alteration: (Sections 1601/1603 Permit) should any grading or construction be proposed within or along the banks of any natural watercourse or wetland determined to be jurisdictional, located either on -site or any required off -site improvement areas. Copies of any agreement shall be submitted with the notification."
42. ACOE CLEARANCE
Prior to the approval of any implementing project (i.e., tract map, parcel map, use permit, plot plan, etc.) within Planning Areas 1, 5, 6, 9, 10, 14, 23B, 29, 30, 31B, 32, 33A, 33B, 34, 36, 37, 38, and 39 of the SPECIFIC PLAN, which propose grading or construction within or along the banks of any blue -line stream which is determined to be within the jurisdiction of the United States Army Corps of Engineers, the following condition shall be placed on the implementing project:
"PRIOR TO THE ISSUANCE OF GRADING P S, the applicant shall obtain written notification to the Planning Department that the alteration of any watercourse or wetland determined to be jurisdictional, located either on -site or on any required off -site improvement areas, complies with the U.S. Army Corps of Engineers Nationwide Permit Conditions, or obtain a permit under Section 404 of the Clean Water Act should any grading or construction be proposed within or along the banks of any natural watercourse or wetland. Copies of any agreement shall be submitted with the notification."
43. ENTRY MO NI NTA1'ION
Prior to the approval of any implementing project within the SPECIFIC PLAN (i.e., tract map, parcel map, use permit, plot plan, etc.), the following condition shall be placed on the implementing project:
"PRIOR TO THE ISSUANCE OF BUILDING PERMITS, the following language shall be added to the landscaping requirements of the implementing project:
1. A primary entry monument shall be shown at locations indicated in Figure 4-1 with features as depicted in Figure 4-2 and Figure 4-3.
2. A secondary entry monument shall be shown at locations indicated in Figure 4-1 with features as depicted in figure 4-5.
00563867.3
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Specific Plan 318 Beaumont Conditions
3. The entry monument shall be in substantial conformance with the design guidelines of Planning Area ` ' of the SPECIFIC PLAN, as shown on pages to
44. POST GRADING REPORT
Prior to approval of any implementing project within the SPECIFIC PLAN (i.e., tract map, parcel map, use permit, plot plan, etc.), the following condition shall be placed on the implementing project:
"PRIOR TO THE ISSUANCE OF BUILDING PERMITS, the project applicant shall provide to the Planning Department a post grading report. The report shall describe how the mitigation and monitoring program as described in the EIR and pre -grading agreement[s] with the qualified archaeologist and paleontologist were complied with."
45. SCHOOL MITIGATION
Prior to the approval of any implementing project within the SPECIFIC PLAN (i.e., tract map, parcel map, use permit, plot plan, etc.), the following condition shall be placed on the implementing project:
"PRIOR TO BUILDING PERMITS, impacts to the Beaumont Unified School District shall be mitigated in accordance with the existing mitigation agreement with the developer dated December 19, 1989. If said agreement shall be rescinded, then impacts to schools shall be mitigated in accordance with the state law."
46. PHASE 1 PARKS
Prior to approval of any implementing residential project within Phase One of the SPECIFIC PLAN, a phasing plan for the design and construction of Phase One parks shall be submitted to and approved by the Planning Department. The plan shall provide for parks, design and construction as well as landscape maintenance and upkeep. The plan shall also document a permanent maintenance mechanism for the parks and their facilities. Conditions for applicable thresholds will be developed concurrent with approval of the phasing plan consistent with the City of Beaumont's General Plan standards.
This condition shall be considered MET if a document is submitted that is acceptable to both the Planning Department. This condition may be considered as NOT APPLICABLE if the implementing application is not within Phase One.
47. PHASE 2 PARKS
Prior to the approval of any implementing residential project within Phase Two of the SPECIFIC PLAN, a phasing plan for the design and construction of Phase Two parks shall be submitted to and approved by the Planning Department. The plan shall provide for parks design and construction as well as landscape maintenance and upkeep. The plan shall also document a permanent maintenance mechanism for the parks and their 00563867.3
18
Stx cilrc Plan 318 Beaumont Conditions
facilities. Conditions for applicable thresholds will be developed concurrent with approval of phasing plan consistent with the City of Beaumont's General Plan standards.
This condition shall be considered MET if a document is submitted that is acceptable to the Planning Department. This condition may be considered as NOT APPLICABLE if the implementing application is not within Phase Two.
48. PHASE 3 PARKS
Prior to approval of any implementing residential project within Phase Three of the SPECIFIC PLAN, a phasing plan for the design and construction of the parks within Phase Three shall be submitted to and approved by the Planning Department. The plan shall provide for parks design and construction as well as landscape maintenance and upkeep. The plan shall also document a permanent maintenance mechanism for the parks and their facilities. Conditions for applicable thresholds will be developed concurrent with the approval of the phasing plan consistent with the City of Beaumont's General Plan standards.
This condition shall be considered MET if the applicable information is provided to the Planning Department. This condition may be considered as NOT APPLICABLE if the implementing project is not within Phase Three.
49. BIOLOGICAL MITIGATION
Prior to approval of any implementing project within Planning Areas 1, 5, 6, 9, 10, 14, 23B, 29, 30, 31B, 32, 33A, 33B, 37, 38, and 39 of SPECIFIC PLAN (i.e., tract map, parcel map, use permit, plot plan, etc.), the following condition shall be placed on the implementing project:
"PRIOR TO THE ISSUANCE OF GRADING PERMITS, a mitigation program shall be implemented providing for the preservation, creation or enhancement of replacement riparian woodland or wetland habitat. The initial focus for mitigation shall be within the San Timoteo Canyon Creek corridor where the mitigation shall be implemented to the greatest extent feasible. The mitigation program must be acceptable to the Army Corps of Engineers (Corps), Californian Department of Fish and Game (CDFG), and the Regional Water Quality Control Board (BOARD) under their Section 404, 1603, and 401 or other applicable permitting process, respectively. The Planning Department must receive written confirmation of the acceptability of the mitigation measures from the Corps, CDFG and/or the Board.
If the Corps, CDFG, and/or Board will not accept the mitigation or if the implementation of the program in the San Timoteo Canyon Creek corridor is not feasible, the mitigation shall be implemented within the site of the SPECIFIC PLAN or at a suitable off site location in accordance with the EIR.
©C\563867.3
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Specific Plan 318 Beaumont Conditions
TRANS DEPARTMENT
50. TRAFFIC STUDY REQUIRED
Site specific traffic studies will be required for all subsequent implementing projects within the boundaries of Specific Plan No. 318, as deemed necessary by the City Engineer. Subsequent traffic studies shall monitor development within the specific plan and its associated trip generation. Traffic signals identified in Condition 19, Warranted Traffic Signals, will be installed by the project without credit for signal mitigation fees unless deteiiiiined to not be warranted under existing or any future conditions and as approved by the City Engineer.
51. OFF -SITE MITIGATION
EIR No. 418 proposes mitigation for traffic impacts to off -site roadways and intersections located within various jurisdictions. The following intersections have been identified within the EIR as requiring mitigation:
Singleton Road/I-10 Fwy EB Ramps
Singleton Road/I-10 Fwy WB Ramps
Singleton Road/Calimesa Boulevard
Cherry Valley Boulevard/Roberts Road — Desert Lawn Drive Cherry Valley Boulevard/I-10 Fwy EB Ramps
Cherry Valley Boulevard/I-10 Fwy WB Ramps
Cherry Valley Boulevard/ Calimesa Boulevard
Nancy Avenue/Cherry Valley Boulevard
Beaumont Avenue/Cherry Valley Boulevard
Brookside Avenue/Desert Lawn Drive
Brookside Avenue/Calimesa Boulevard
Beaumont Avenue/Brookside Avenue
Champions Drive/San Timoteo Canyon Road
Oak Valley P'way/I-10 Fwy EB Ramps
Oak Valley P'way/I-10 Fwy WB Ramps
Oak Valley P'way/Oak View Drive
Nancy Avenue/14th Street
Beaumont Avenue/14th Street
Elm Avenue/8th Street
California Avenue/6th Street
Beaumont/I-10 Fwy EB Ramps
Beaumont Avenue/I-10 Fwy WB Ramps
Potrero Boulevard/SR-60 EB Ramps
Potrero Boulevard/SR-60 WB ramps
Potrero Boulevard/San Timoteo Canyon Road
Singleton Road/San Timoteo Canyon Road
The project developer shall participate on a "fair share basis" in a regional mechanism that provides funding for the necessary improvements. Prior to the issuance of the first 00563867.3
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Specific Plan 318 Beaumont Conditions
Building Permit, the project developer may be required to make a deposit to the Planning Department to initiate the process of creating the appropriate funding mechanism. This deposit shall be credited against the developer's "fair share" of the improvement costs identified. Any funds advanced by the project developer not expended shall be refunded or credited against their "fair share". A "PRIOR TO BUILDING PERMIT ISSUANCE" condition shall be imposed on residential tract maps or commercial site plans, respectively, for the funding of the process to create the appropriate regional mechanism.
This condition shall be considered MET upon deposit of the funds for creating the appropriate funding mechanism with the Planning Department.
OC\563 3673
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a`
PLEASE COMPLETE THIS INFORMATION
RECORDING REQUESTED BY:
AND WHEN RECORDED MAIL TO:
CITY OF BEAUMONT
550 E. 6th STREET
BEAUMONT, CA 92 223
DOG El 2004-0131329
02/26/2004 08:00A Fee:NC
Recorded in Official Records
County of Riverside
Gary L. Orso
Assessor
County Clerk & Recorder
I/Il/// IIIIII VIII IIII/
IIII 111111 VIII III VIII
„ct u� IIIIIIII
Title of Document
F R
DE S
THIS PAGE ADDED TO PROVIDE ADEQUATE SPACE FOR RECORDING INFORMATION ($3:00 Additional Recording Fee Applies)
ACR 238P-AS4RE0 (Rev. 02/2003)
Ys
RECORDING REQUESTED BY, AND
WHEN RECORDED, MAIL TO:
City Clerk
City of Beaumont
550 East Sixth Street
Beaumont, California 92223
EXEMPT: GOV'T CODE § 6103
10/29/03 10090.2
H&O: #9831 v2
(Space
DOC III 2003-977700
12/15/2003 08:00A Fee:NC
Recorded in Official Records
County of Riverside
Gary L. Orso
Assessor, County Clerk & Recorder
11111
111111111111111 II 1111 11 111 tIll II 11111111
DA PCCR NOCCR DMA MSC_
DEVELOPMENT AGREEMENT
BETWEEN
THE CITY OF BEAUMONT
AND
LB/L-SUNCAL OAK VALLEY LLC
(Pursuant to California Government Code Sections 65864 - 65869.5 and City of Beaumont Resolution No. 1987-34)
November 18, 2003
DEVELOPMENT AGREEMENT
This DEVELOPMENT AGREEMENT ("Agreement") is entered into to be effective on the date of recordation, between LB/L—SUNCAL OAK VALLEY LLC, a Delaware limited liability company (the "Developer"), and the CITY OF BEAUMONT, a municipal corporation organized and existing under the laws of the State of California (the "City"). The Developer and the City are sometimes collectively referred to herein as the "parties."
Agreement.
RECITALS:
This Agreement is predicated upon the following facts:
A. These Recitals use certain capitalized terms which are defined in this B. Government Code Sections 65864 - 65869.5 authorize the City to enter into binding development agreements with persons having a legal or equitable interest in real property for the development of such property, all for the purpose of strengthening the public planning process, encouraging private participation and comprehensive planning and reducing the economic costs of such development. The City has implemented the law contained in such sections by adopting Resolution No. 1987-34, titled "Establishing Procedures and Requirements for Consideration of Development Agreements" (such Resolution, together with the aforementioned Government Code Sections, are being referred to herein as the "Development Agreement Law").
C. This Agreement is adopted pursuant to the Development Agreement Law.
D. Developer has entered into a Purchase and Sales Agreement with Oak Valley Partners, L.P., a Texas limited partnership ("Oak Valley Partners"), to acquire undeveloped land owned by Oak Valley Partners located in the City and more particularly described on Exhibit "A" and as shown on Exhibit "B" attached and made a part of this Agreement (the "Property"). On April 9, 2003, the Riverside Local Agency Foinmation Commission issued and recorded the Certificate of Completion annexing the land owned by Oak Valley Partners, including the Property.
E. The Developer intends to develop the Property in accordance with the Development Plan, as hereinafter defined (the "Project"). The Project is highly capital intensive, especially in its initial phases, which, in order to make the Project economically and fiscally feasible, requires major commitment to and investment in public facilities and on -site and off -site infrastructure improvements prior to the construction and sale or leasing of residential and commercial buildings. This Agreement will facilitate the logical and orderly development of the Project in the City.
F. The City has determined the Development Plan is consistent with the City General Plan and has approved the Development Plan in order to promote the health, safety and welfare of its citizens and protect the quality of life of the community and the surrounding environment. The Development Plan consists of Specific Plan No. 318 which was approved for 10/29103 10090.2
H&O: #9831 v2
the Property by the County of Riverside ("Count -y") ty ) on August 14, 2001, for which the County prepared and certified Environmental Impact Report No. 418 (the "EIR"). As part of the process of approving the Development Plan, the City has prepared and reviewed, pursuant to the California Environmental Quality Act ("CEQA"),
an Addendum to the EIR, with respect to the
potential significant impacts of the Project resulting from its annexation to the City and made a Finding of Substantial Conformance with Specific Plan 318. The City has determined based on that review that the EIR adequately addresses the potential significant impacts of the Project, and that accordingly neither a supplemental nor subsequent environmental impact report is required for the Development Plan and this Agreement.
G. All of the proceedings relating to the approval of the Agreement have been conducted in accordance with the Development Agreement Law and CEQA.
H. On November 18, 2003, the City Council of the City adopted Ordinance No. 850 approving this Agreement with the Developer.
I. The terms and conditions of this Agreement have undergone extensive review by the City and its City Council and have been found to be fair, just and reasonable, and the City has found and determined that the execution of this Agreement is in the best interest of the public health, safety and general welfare of the City and its residents and that adopting this Agreement constitutes a present exercise of its police power.
AGREEMENT
In light of the foregoing Recitals, which are an operative part of this Agreement, the parties agree as follows:
1. DEFINITIONS.
"Agreement" is this Development Agreement.
"Agreement Date" is the date this Agreement is approved by the City Council. "Alternative Financing Mechanism" has the meaning given that phrase in Section 10.5 below.
"CEQA" is the California Environmental Quality Act, Public Resources Code section 21000 et seq.
"CFD" is a Community Facilities District formed pursuant to the Mello -Roos Community Facilities Act of 1982, California Government Code section 53312 et seq. "City" is the City of Beaumont, California.
"City's Discretion" is discretion exercised by the City in accordance with the policies and principles set forth in the Development Plan, this Agreement and the procedures in effect as of the Effective Date such that the approvals given by the City to the Developer pursuant to the exercise of such discretion shall not be unreasonably withheld or delayed. 10/29/03 IU09©.2
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company.
"County" is the County of Riverside, California.
"Developer" is LB/L—Suncal Oak Valley LLC, a Delaware limited liability "Development Agreement Law" is California Government Code sections 65864 et seq., and Resolution No. 1987-34, titled "Establishing Procedures and Requirements for Consideration of Development Agreements."
"Development Plan" is, collectively, the permits and approvals listed on Exhibit "C."
"Effective Date" is that date which is the later to occur of (a) the expiration of the time for filing a referendum petition relating to this Agreement if no such petition is filed within such period; or (b) the certification of the results of a referendum election are declared approving this Agreement if a referendum petition is filed within the applicable period. "EIR" is Environmental Impact Report No. 418 ("EIR") for Specific Plan 318 certified by the County of Riverside on August 14, 2001, and the "Addendum" prepared for the Project and approved by the City Council on November 5, 2002. "Project" is the proposed development of the Property included within the Development Plan and associated amenities, including, without limitation, on -site and off -site improvements contemplated by the Development Plan, as the same may be further defined, enhanced or modified pursuant to the provisions of this Agreement. "Property" is the real property on which the Project is, or will be, located as described on Exhibit "A" attached hereto and shown on Exhibit "B" attached hereto.
2. EXHIBITS. The following documents are referred to in this Agreement, attached hereto and incorporated herein by this reference:
Exhibit Designation Description
A
B
C
D
Legal Description of the Property
Map of the Property
List of Penults and Approvals
City Conditions of Approval
3. MUTUAL BENEFITS. This Agreement is entered into for the purpose of implementing the Development Plan for the Project in a manner that will secure certain assurances to the Developer that the Property may be developed in accordance with the Development Plan and this Agreement, and certain benefits to the City as set forth in this Agreement. The City and the Developer agree that, due to the size and duration of the Project, the Agreement is necessary to achieve those desired benefits.
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4. INTEREST OF THE DEVELOPER. The Developer represents that the Developer owns an equitable interest in the Property under a legally binding contract to purchase the Property.
5. BINDING EFFECT OF AGREEMENT. The terms and conditions of this Agreement shall be binding upon and inure to the benefit of the parties and their successors and assigns as set forth herein.
6. PROJECT AS A PRIVATE UNDERTAKING. It is specifically understood and agreed that the development of the Project is a private and not a public sector development, that neither party is acting as the agent of the other in any respect hereunder, and that each party is an independent contracting entity with respect to the terms, covenants and conditions contained in this Agreement. No partnership, joint venture or other association of any kind is formed by this Agreement. The only relationship between the City and the Developer is that of a government entity regulating the development of private property by the equitable owner of such Property.
7. TERM. The term of this Agreement shall be twenty-five (25) years following the Effective Date. Expiration of the term of this Agreement shall not in any manner affect rights which have otherwise vested under applicable law.
8. HOLD HARMLESS The Developer shall hold the City, its officers, agents, employees and representatives harmless from liability for damage or claims for damage for personal injury, including death and claims for property damage, arising on the Property from the wrongful or negligent activities of the Developer or those of the Developer's contractors, subcontractors, agents, employees or other persons acting on the Developer's behalf which relate to the Project.
In the event any person not a party or a successor to a party to this Agreement institutes any type of action against the City with respect to this Agreement, City and Developer shall cooperate in defending against the action, provided that City may, in its sole discretion, elect to tender the defense of such action to the Developer. If the Developer accepts the tender, the Developer shall thereafter hold City harmless from and defend City from all costs and expenses incurred in the defense of such action, provided that City fully cooperates with the Developer in the defense of duty to defend the action.
such action. If the Developer declines the tender, then City shall have no further obligation or
9. VESTED RIGHT. By entering into this Agreement the City grants to the Developer a vested right to develop the Property in accordance with the Development Plan. The City shall not enact and enforce against the Project an ordinance, policy, rule, regulation or other measure which significantly alters the rate, type, manner, density, timing or sequencing of the Project. In addition to and not in limitation of the foregoing, it is the intent of the Developer and the City that no moratorium, whether relating to the rate, type, manner, density, timing or sequencing of the Project and whether or not enacted by initiative or otherwise, except a moratorium imposed by the City to implement State or Federal laws, statutes, regulations, policies or orders as provided in Section 11.2, affecting parcel or subdivision maps, building permits, plot plans, special use permits, conditional use permits, occupancy certificates or other entitlements to use or permits approved, issued or granted within the City, or portions of the City, shall not apply to the Project to the extent such moratorium or other limitation is in conflict with the Development Plan. Notwithstanding the foregoing, should an ordinance, general plan or zoning amendment, 10/29/03 10090.2
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measure, moratorium, policy, rule, regulation or other limitation enacted by the citizens of the City through the initiative process be determined by a court of competent jurisdiction to invalidate or prevail over all or any part of the Development Plan, the Developer shall have no recourse against the City pursuant to this Agreement. The foregoing shall not be deemed to limit the Developer's right to appeal any such determination of such ordinance, general plan or zoning amendment, measure, policy, rule, regulation, moratorium or other limitation which invalidate or prevail over all or an purports to
y part of this Agreement.
10. DEVELOPMENT OF THE PROJECT.
10.1 Phasing and Timing of Development. When or the order in which Project phases will be developed, or whether it will be developed at all, depend upon numerous factors which are not within the control of the Developer or City, such as market orientation and demand, interest rates, availability of funding, competition and other similar factors.
Accordingly, to the extent permitted by the Development Plan and this Agreement, the Developer shall have the right to develop the Project in phases in such order and at such times as the Developer, in its sole discretion, deems appropriate within the exercise of its subjective business judgment; provided, however, that the City reserves the right to review, condition and approve each phase through discretionary and ministerial approvals consistent with this Agreement.
10.2 Effect of Agreement on Land Use Regulations. The rules, regulations and policies governing permitted uses of property, the density and intensity of use of property, the maximum height and size of proposed buildings and the design, improvement, construction and development standards and specifications applicable to development of property are those rules, regulations and policies in force as of the date of the Agreement, and those rules, regulations and official policies which may hereinafter be adopted by the City in accordance with Section 11.1 hereof, or State or Federal laws, statutes, regulations, policies or orders as provided in Section 11.2.
10.3 Application Processing. In connection with any approval which the City is permitted or has the right to make under this Agreement relating to the Project, or otherwise under its rules, regulations and official policies, the City shall exercise the City's discretion or take action in a manner which is as expeditious as reasonably possible.
1.0.4 Administrative Changes and Amendments. The parties acknowledge that further planning and development of the Project may demonstrate that refinements and changes are appropriate with respect to the details of the Project or interpretation of the Development Plan. If and when the parties find that minor changes or adjustments are necessary or appropriate to the Project or the Development Plan, they shall, unless otherwise required by law, effectuate such changes or adjustments through administrative amendments approved by the Director of Planning, which, after execution, shall be attached hereto as addenda and become a part hereof, and may be further changed and amended from time to time as necessary, with approval by the Director of Planning as may be requested by the Developer. Minor changes or amendments shall be those which are consistent with the overall intent of the Development Plan and this Agreement and which do not materially alter the overall nature, scope, or design of the Project. Any such minor administrative changes or amendments shall not be deemed to be an 10/29/03 10090.2
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amendment to this Agreement under Government Code Section 65868 and, unless otherwise required by law, no such administrative amendments shall require prior notice or hearing. As part of this Agreement, City understands and agrees that (i) any planning area designated for commercial use or park use, may instead be developed with residential dwelling units at an average density of up to 5.2 units per net acre, without further amendment of the Development Plan.
10.5 Mello -Roos Communities Facilities Districts; Other Assessment Districts or Financing Mechanisms. Pursuant to Chapter 2.5 (commencing with section 53312) Part 1, Division 2, Title 5 of the Government Code of the State of California, commonly known as the "Mello -Roos Community Facilities Act of 1982," the Developer may, at its sole election, petition the City Council of the City or a joint powers agency in which the City is a member to establish a Community Facilities District ("CFD"), in accordance with the City's policies in existence on the Effective Date. Alternatively, or in addition thereto, the Developer may request that the City initiate and complete proceedings under the Municipal Improvement Act of 1911, the Municipal Improvement Act of 1913, the Improvement Bond Act of 1915, the Landscaping and Lighting Act of 1972, or any and all other available public financing mechanism, to provide public conduit financing for the construction of public infrastructure improvements on the Property ("Alternative Financing Mechanisms"). If so requested by the Developer, the City shall cooperate with the Developer (or, for matters beyond its control, shall use its best efforts) in taking all steps necessary to cause the CFD or Alternative Financing Mechanisms to issue bonds for such purposes. If the Property is included within a CFD or Alternative Funding Mechanism with other surrounding properties, the special taxes or special assessments burdening the various properties so included shall be apportioned on a fair share basis related to the benefit derived by each of such properties in accordance with City policies at the time such property is included.
10.6 Public Services and Facilities. The Development Plan requires an integrated roadway system, and other public facilities including parks, schools, storm drains, and water and sewer facilities. City will reasonably assist Developer in obtaining public facilities and services for the Project on a timely basis in keeping with the pace of development of the Property. To the extent that the Developer constructs, installs or provides financing for public facilities or other public infrastructure improvements that benefit lands outside of the Property, the City shall use best reasonable efforts to adopt such ordinances, mitigation fees, liens or assessments as are necessary to provide credits, reimbursements, or in -kind funding to the Developer for the fair share of the benefits conferred upon such lands other than the Property by such public facilities or infrastructure improvements.
10.7 Other Governmental or Quasi -Governmental Permits. The Developer shall apply for such other peiiiiits and approvals as may be required by other governmental or quasi -governmental agencies having jurisdiction over the Project (such as public utilities or utility districts, or other federal or state agencies) to the extent required for the development of, or provision of, services and facilities to the Project as set forth in the Development Plan. The City shall cooperate with and assist the Developer in obtaining such permits and approvals, and, where necessary in making application for such approvals or permits. The Developer shall be solely responsible for all costs and shall be responsible for the processing of all such permits. 10/29/03 10090.2
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10.8 Consistency Between This Agreement and Current Laws. The City represents that as of the date of the execution of this Agreement, there are no rules, regulations, ordinances or official policies of the City that would interfere with the development of the Project according to the Development Plan.
10.9 Assessments, Fees, Mitigation and Exactions. The City shall not impose any future assessment, fee, mitigation measure or exaction on the Project or any portion thereof, except (a) those existing and proposed assessments, fees, mitigation measures and exactions included in Exhibit "C", (b) such other fees, assessments and exactions as may be adopted or imposed by the City in conformance with the requirements of Article XIII D of the California Constitution, (c) such other development impact fees or categories of development impact fees which are adopted on a City or County -wide basis or as required as a condition to obtaining County funding; and (d) such other development impact fees or categories of development impact fees which are imposed on other development projects in the City and are adopted and levied based on a benefit assessment. Fees payable to City shall be at rates applicable on the date the fee is paid. City shall recognize and apply a dollar -for -dollar in -lieu credit against any and all fees, for and equal to the cost of improvements and/or dedications made in the development of the Project by the Developer, or funded by any CFD or Alternative Financing Mechanism including the Property, and for which the fees would otherwise be imposed. City further agrees to use any fees paid with respect to development of the Project to fund improvements which benefit the Project, to the fullest reasonable extent available and applicable under the law. Any payments made to the City as required in that certain settlement agreement between the Developer and the Cherry Valley Acres and Neighbors settling a lawsuit against Specific Plan 318 shall be treated by City as an advance and credit against any fees that may be imposed by the City for the same purposes as the payment.
1.0.10 Reimbursement by the City. Pursuant to Government Code Section 65865.2, the City hereby agrees that as future development fees, assessments and exactions are imposed on future projects which have benefited from the fees, assessments and exactions paid by the Developer, the City shall promptly reimburse the Developer to the extent that such fees, assessments and exactions paid by Developer benefited lands outside of the Property, but only to the extent that the City actually receives or collects such fees, assessments or exactions for a period of ten years from the date the fee was paid.
11. RULES, REGULATIONS, REQUIREMENTS AND OFFICIAL POLICIES.
11.1 New Rules. This Agreement shall not prevent the City from applying the following new rules, regulations, requirements and policies, if applied on a City-wide or area of benefit basis:
11.1.1 Processing fees and charges imposed by the City which cover only the estimated actual costs to the City of processing applications for development approvals, for monitoring compliance with any development approvals or for monitoring compliance with environmental impact mitigation measures.
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procedure, provided that such changes in procedural regulations do not have the effect of materially interfering with the benefits conferred by this Agreement.
11.1.3 Regulations governing construction standards and specifications including, without limitation, the City's Building Code, Plumbing Code, Mechanical Code, Electrical Code and Fire Code.
11.1.4 Regulations which are necessary to protect public health and safety, provided that to the maximum extent possible such regulations shall be designed, construed and applied in a manner to preserve the benefits of this Agreement.
11.1.5 New or increased fees or categories of fees imposed as a condition of development, for the purpose of defraying all or a portion of the cost of public facilities (as defined in Government Code Sections 66000 et seq.) related to development projects.
11.1.6 Regulations which are in conflict with the Development Plan or this Agreement if such regulations have been consented to in writing by the Developer.
1.1.2 State and Federal Laws. In the event that State or Federal laws or regulations enacted after this Agreement is executed prevent or preclude compliance with one or more of the 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; provided, however, that this Agreement shall remain in full force and effect to the extent it is not inconsistent with such laws or regulations and to the extent such laws or regulations do not render such remaining provisions impractical to enforce.
12. AMENDMENT OR CANCELLATION OF AGREEMENT. This Agreement may be amended or canceled in whole or in part only by mutual consent of the parties in the manner provided for in Government Code Section 65868.
13. ENFORCEMENT. Unless amended or canceled as provided in Section 12 above, or modified or suspended pursuant to Government Code Section 65869.5, this Agreement is enforceable by either party hereto notwithstanding any change in any applicable general or specific plan, zoning, or subdivision regulation or standard adopted by the City (or by the voters of the City unless found by a court of competent and final jurisdiction to prevail over this Agreement) which alters or amends the Development Plan or is inconsistent with this Agreement.
14. PERIODIC REVIEW OF COMPLIANCE WITH AGREEMENT. The City shall review this Agreement at least once every year from the date this Agreement is executed.
During each periodic review, each party is required to demonstrate good faith compliance with the terms of this Agreement. Such periodic review shall be conducted administratively by the City Manager and any appropriate department heads designated by the City Manager to perform such periodic review. If the City Manager finds that the Developer is not in good faith compliance with this Agreement, the Developer shall have the right to appeal such finding to the City Council. The City Council on appeal shall not hold a public hearing to review a finding that the Developer is not in good faith compliance with this Agreement unless so requested by the Developer in writing at the time of the submission of such appeal. The City shall notify the 10/29/03 10090.2
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Developer in writing of the date for review at least thirty (30) days prior thereto. The Developer shall pay or reimburse the City for the City's reasonable costs incurred in connection with such periodic reviews.
15. Events of Default.
15.1 Default by the Developer. If the City Council determines on the basis of substantial evidence upon appeal of the City Manager's decision pursuant to Section 14 hereof that the Developer has not complied in good faith with the terms and conditions of this Agreement, it shall, by written notice to the Developer, specify the manner in which the Developer has failed to so comply and state the steps the Developer must take to bring itself into compliance. If, within sixty (60) days after the effective date of notice from the City specifying the manner in which the Developer has failed to so comply, the Developer does not commence action reasonably necessary to bring itself into compliance as required and thereafter diligently pursue such steps to completion, then the Developer shall be deemed to be in default under the teinis of this Agreement and the City may, if such failure persists after thirty (30) days' prior written notice, exercise its rights and remedies pursuant to Section 15.3.
15.2 Default by the City. If the Developer detei,uines on the basis of substantial evidence that the City has not complied in good faith with the terms and conditions of this Agreement, the Developer shall, by written notice to the City, specify the manner in which the City has failed to so comply and state the steps the City must take to bring itself into compliance.
If, within sixty (60) days after the effective date of notice from the Developer specifying the manner in which the City has failed to so comply, the City does not commence steps reasonably necessary to bring itself into compliance as required and thereafter diligently pursue such steps to completion, then the City shall be deemed to be in default under the terms of this Agreement and if such failure persists after thirty days prior written notice, the Developer may terminate this Agreement or seek specific performance as set forth in Section 15.3.
15.3 Specific Performance Remedy. Due to the size, nature and scope of the Project, it will not be practical or possible to restore the Property to its natural condition following development of all or any portion of the Property. After such development, the Developer may be foreclosed from other choices it may have had to utilize the Property. The Developer has invested significant time and resources and performed extensive planning and processing of the Project in agreeing to the terms of this Agreement and will be investing substantially more time and resources in implementing the Project in reliance upon the -Willis of this Agreement. It would be difficult or impossible to accurately determine the sum of money which would adequately compensate the Developer for such efforts. For the above reasons, the City and the Developer agree that damages alone would not be an adequate remedy if the City fails to carry out its obligations under this Agreement. Similarly, if the Developer breaches certain of its obligations hereunder, monetary damages may not constitute an adequate remedy for the City.
Therefore, the parties agree that specific performance of this Agreement is an appropriate remedy if either party defaults and fails to perfoini its non -monetary obligations under this Agreement. Notwithstanding the foregoing, nothing in this Agreement is intended to prevent either party from seeking recovery of appropriate damages in the event that the terms of this Agreement are breached. The City and the Developer acknowledge that if the Developer is in default of its obligations under this Agreement, the City shall have the right to refuse to issue any 10/29/03 10090.2
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permits or other approvals to which the Developer would not otherwise have been entitled but for this Agreement.
16. INSTITUTION OF LEGAL ACTION. In addition to any other rights or remedies, either party may institute legal action to cure, correct or remedy any default, to enforce any covenants or agreements herein, to enjoin any threatened or attempted violation hereof, to recover damages for any default or to obtain any other remedies consistent with the purpose of this Agreement. Any such legal action shall be brought in the Superior Court of the State of California for the County of Riverside. The parties hereto waive any right to trial by jury.
17. WAIVERS AND DELAYS.
17.1 Waiver. Failure by a party to insist upon the strict performance of any of the provisions of this Agreement by the other party, and failure by a party to exercise its rights upon a default by the other party hereto, shall not constitute a waiver of such party's right to demand strict compliance by such other party in the future.
17.2 Third Parties. Nonperformance shall not be excused because of a failure of a third person except as provided in Section 17.3 below.
17.3 Force Majeure. Neither party shall be deemed to be in default for failure or delay in performance of any of its obligations under this Agreement if caused by floods, earthquakes, other Acts of God, fires, wars, riots or similar hostilities, strikes, other labor difficulties, government regulations or other causes beyond either of the parties' control. If any such event shall occur, the term of this Agreement and the time for performance by the Developer of any of its obligations hereunder or pursuant to the Development Plan shall be extended by the period of time that such events prevent or delay development of the Project.
18. NOTICES. All notices required or provided for under this Agreement shall be in writing and delivered in person and deposited in the United States mail, postage prepaid and addressed as follows:
To the City: The City of Beaumont
550 East Sixth Street
Beaumont, California 92223
Attn: City Manager
With a copy to: Mr. Joseph Aklufi
Aklufi & Wysocki
3403 Tenth Street, Suite 610
Riverside, CA 92501
To the Developer: LB/L—Suncal Oak Valley LLC
c/o SunCal Companies
5109 E. La Palma, Suite D
Anaheim, CA 92807
Attn: Bruce Elieff
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With a copy to: Hewitt & O'Neil LLP
19900 MacArthur Blvd., Suite 1050
Irvine, California 92612
Attn: Dennis D. O'Neil, Esq.
Any party may change its address stated herein by giving notice, in writing, to the other parties.
19. ATTORNEYS' FEES. If legal action is brought by either party against the other for breach of this Agreement, or to compel performance under this Agreement, the prevailing party shall be entitled to an award of reasonable attorneys' fees and costs.
20. TRANSFERS AND ASSIGNMENTS.
20.1 Right to Assign. The Developer shall have the right to sell, assign or transfer this Agreement and any and all of its rights, duties and obligations hereunder, in whole or in part, to any person or entity at any time during the teiiii of this Agreement; provided, however, in no event shall the rights, duties and obligations conferred upon the Developer pursuant to this Agreement be at any time so transferred or assigned except through a transfer of an interest of the Developer in the Property, a portion . The assignment shall not be effective without the City's prior approval, which shall not be unreasonably withheld, to ensure that the assignment will not prevent the orderly development of the Project consistent with the Agreement or Development Plan. In the event of any such assignment, the transferee shall thereafter be solely liable for the performance of all obligations of the Developer relating to the portion of the Property, or interest therein, so transferred. Such transferee or the Developer shall notify the City, in advance, and in writing of their intent to transfer such obligations.
20.2 Release Upon Transfer. Upon the sale, transfer or assi ent of the
Developer's rights and interests under this Agreement as permitted pursuant to Segction 20 1, the Developer shall be released from its obligations under this Agreement and all of the Developer's obligations pursuant to the Development Plan, or other agreements assumed by transferee with respect to the Property, or portion thereof, so transferred, provided that (a) the Developer is not then in default under the Agreement, (b) the Developer or transferee has provided the City notice of such transfer and (c) the transferee executes and delivers to the City a written agreement in which (i) the name and address of the transferee is set forth and (ii) the transferee expressly and unconditionally assumes all of the obligations of the Developer under this Agreement with respect to the Property, or a portion thereof, so transferred.
21. COOPERATION IN THE EVENT OF LEGAL CHALLENGE. In the event of any legal action instituted by a third party or other governmental entity or official challenging the validity of this Agreement or any portion thereof, the parties hereby agree to cooperate in defending such action, subject to the provisions of Section 8. In the event of any litigation challenging the effectiveness of this Agreement, or any portion hereof, this Agreement shall remain in full force and effect while such litigation, including any appellate review, is pending.
22. EMINENT DOMAIN. No provision of this Agreement shall be construed to limit or restrict the exercise by the City of its power of eminent domain. 10/29/03 10090.2
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23. AUTHORITY TO EXECUTE. The person or persons executing this Agreement on behalf of the Developer warrant and represent that they have the authority to execute this Agreement on behalf of the Developer and warrant and represent that they have the authority to bind the Developer to the performance of its obligations hereunder.
24. ESTOPPEL CERTIFICATES. The City shall at any time upon not less than thirty (30) days' prior written notice from the Developer execute, acknowledge and deliver to the Developer a statement in writing (i) certifying that this Agreement is unmodified and in full force and effect (or, if modified, stating the nature of such modification and certifying that this Agreement, as so modified, is in full force and effect); (ii) certifying the amounts of the fees, assessments and exactions that have been received from the Developer and what amounts, if any, remain outstanding; and (iii) acknowledging that there are not, to the City's knowledge, any defaults if any are claimed. Any such statement may be conclusively relied upon by any prospective purchaser, lender or joint venture partner.
25. RECORDATION. This Agreement and any amendment or cancellation hereto shall be recorded in the Official Records of the County of Riverside, by the City Clerk within the period required by Section 65868.5 of the Government Code.
26. PROTECTION OF MORTGAGE HOLDERS. The parties hereto agree that this Agreement shall not prevent or limit the Developer, in any manner, at the Developer's sole discretion, from encumbering the Property or any portion thereof or any improvement thereon by any mortgage, deed of trust or other security device securing financing with respect to the Property. The City acknowledges that the lenders providing such financing may require certain interpretations, estoppel certificates and modifications to this Agreement and agrees upon request, from time to time, to meet with the Developer and representatives of such lenders to negotiate in good faith any such request for interpretations, estoppel certificates or modifications.
The City will not unreasonably withhold its consent to any such requested interpretation, estoppel certificate or modification provided the same is consistent with the intent and purposes of this Agreement. The holder(s) of any mortgage, deed of trust or other security instrument encumbering the Property (each, a "Mortgagee") shall have the following rights and privileges:
26.1.1 Neither entering into this Agreement nor a breach of this Agreement shall defeat, render invalid, diminish or impair the lien of any mortgage on the Property made in good faith and for value, unless otherwise required by law.
26.1,2 Any Mortgagee which has submitted a request in writing to the City in the manner specified herein for giving notices, shall be entitled to receive written notification from City of any default by the Developer in the performance of the Developer's obligations under this Agreement.
26.1.3 If the City timely receives a request from a Mortgagee requesting a copy of any notice of default given to the Developer under the terms of this Agreement, the City shall provide a copy of that notice to the Mortgagee within ten (10) days of sending the notice of default to the Developer. Mortgagee's not party to this Agreement. If the cure period for a default by the Developer set forth in Section 15.1 above has expired and such default has not been cured, the Mortgagee shall be provided with an additional thirty (30) day period after the 10/29/03 10090.2
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expiration of such cure period in which to commence all steps reasonably necessary to bring the Developer in compliance as required under this Agreement and thereafter diligently pursue such steps to completion. During such cure period, and if the default is ultimately cured, the City shall not terminate this Agreement.
26.1.4 Any Mortgagee who comes into possession of the Property, or any part thereof, pursuant to foreclosure of the mortgage or deed of trust, or deed in lieu of such foreclosure, shall take the Property, or part thereof, subject to the terms of this Agreement.
Notwithstanding any other provision of this Agreement to the contrary, no Mortgagee shall have an obligation or duty under this Agreement to perform any of the Developer's obligations or other affirmative covenants of the Developer hereunder, or to guarantee such performance; provided, however, that to the extent that any covenant to be performed by the Developer is a condition precedent to the performance of a covenant by City, the performance thereof shall continue to be a condition precedent to City's performance hereunder, and further provided that any sale, transfer or assignment by any Mortgagee in possession shall be subject to the provisions of this Agreement.
27. SEVERABILITY OF TERMS. If any term, provision, covenant or condition of this Agreement shall be determined invalid, void or unenforceable, the remainder of this Agreement shall not be affected thereby to the extent such remaining provisions are not rendered impractical to enforce.
28. SUBSEQUENT AMENDMENT TO AUTHORIZING STATUTE. This Agreement has been entered into in reliance upon the provisions of the Development Agreement Law in effect as of the Agreement Date. Accordingly, subject to Section 11.2 above, to the extent a subsequent amendment to the Development Agreement Law would affect the provisions of this Agreement, such amendment shall not be applicable to the Agreement unless necessary for this Agreement to be enforceable or unless this Agreement is modified pursuant to the provisions set forth in the Agreement and Government Code Section 65868 in effect on the Agreement Date.
29. INTERPRETATION AND GOVERNING LAW. This Agreement and any dispute arising hereunder shall be governed and interpreted in accordance with the laws of the State of California. Unless otherwise provided, any ambiguity concerning the content or application of the Development Agreement, arising as a result of any apparent conflict between (a) the conditions, terms and requirements to be applied by City under the Development Agreement and (b) the conditions, terms and requirements previously imposed on the Project by the County of Riverside, shall be resolved by the City's Planning Director, subject to the appeal procedure set forth in the Development Code for appeals of staff determinations.
30. SECTION HEADINGS. All section headings and subheadings are inserted for convenience only and shall not affect any construction or interpretation of this Agreement.
31. INCORPORATION OF RECITALS AND EXHIBITS. Recitals A through L and attached Exhibits "A" through "D" are hereby incorporated herein by this reference as though set forth in full.
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32. RULES OF CONSTRUCTION AND MISCELLANEOUS TERMS.
32.1 Gender. The singular includes the plural; the masculine gender includes the feminine; "shall" is mandatory, "may" is pelnlissive.
32.2 Time of Essence. Time is of the essence regarding each provision of this Agreement in which time is an element.
32.3 Cooperation. Each party covenants to take such reasonable actions and execute all documents that may be necessary to achieve the purposes and objectives of this Agreement.
33. TENTATIVE TRACT MAP EXTENSIONS. In accordance with the provisions of Section 66452.6 of the California Government Code, tentative subdivision tract map(s) or tentative parcel map(s), heretofore or hereafter approved in connection with development of the Property, shall be granted an extension of time for the term of this Agreement. [Signature page follows
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written above.
The parties have executed this Development Agreement on the date and year first "City"
THE CITY OF BEAUMONT, a
municipal corporation of the State of California
By: r Axe -
Brian
DeForgea.Mayor
"Developer"
LB/L - SUNCAL OAK VALLEY LLC,
a Delaware limited liability company
By: LBREP LAKESIDE OAK VALLEY LLC,
a Delaware limited liability company,
its Managing Member
By:
elvin T. Andrews,
Authorized Signatory
By: SCC/OAK VALLEY, LLC,
a Delaware limited liability company,
Member
By:
SIGNED AND CERTIFIED THAT A COPY OF
THIS DOCUMENT HAS BEEN DELIVERED TO
THE MAYOR OF THE CITY COUNCIL
By:
City Clerk
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E i&O: i#983I v2
15 Bruce Elieff,
Manager
CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT
State of California
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On
personally appeared
IF 1413105
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RMrrrld, Cour*y
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acted, executed the instrument.
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ry Pubirc
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1999 National Notary Assoriat on • 9350 De Soto. Ave_. P.O, Box 2402. Chats,Koth, CA 91373-2432 • wwwnationatnotary.org Number of Pages:
Prod. No. 59.07
Peoder: Cab Toll Free 1-aoo-876-6827
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evidence
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subscribed to the within instrument and
acknowledged to me that-he/she/they executed
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acted, executed the instrument.
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gnaturW
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1A99. Nationa1115,1afy AssIX;= k}n • 9350 De Soto Ave_, N.G. Box 2402. ChatsmAth. CA 9=313.2402 rxw na onaino.d f_oc Number of Pages:
P,. sd
No 5907
Recric er Cv T -Free 9300-376-6827
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ry 190:9 Nr_tCrtsE Notary Association. 9350 De Soto Ave.. PO. Box 2402- Chatsworth CA 9 313-2402 s, racnai ctem, uA Art- x. No 5907 RnU dew CaH L -Ree' d03 8=£ £327
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• 9.350 De Soto Ave.. -'O. Box 2402 • rnatawertt• CA 41313-24ri2 • v... at ,- €'rod. No. 54£7
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EXHIBIT "A"
LEGAL DESCRIPTION
THOSE PORTIONS OF SECTIONS 25, 26, 27, 31, 32, 35 AND 36 OF TOWNSHIP 2 SOUTH, RANGE 1 WEST AND A PORTION OF SECTION 5 TOWNSHIP 3 SOUTH, RANGE 1 WEST SAN BERNARDINO
MERIDIAN, LOCATED IN THE COUNTY OF RIVERSIDE, STATE OF CALIFORNIA MORE PARTICULARLY DESCRIBED AS FOLLOWS:
PH 1-A
PARCEL "A" OF LOT LINE ADJUSTMENT NO. 4188 AS SHOWN ON RECORD OF SURVEY FILED IN BOOK 109 OF RECORD OF SURVEYS PAGES 7 THROUGH 13 INCLUSIVE.
PH 1-B
PARCEL "B" OF LOT LINE ADJUSTMENT NO. 4188 AS SHOWN ON RECORD OF SURVEY FILED IN BOOK 109 OF RECORD OF SURVEYS PAGES 7 THROUGH 13 INCLUSIVE.
PHI -F
PARCEL "F" OF LOT LINE ADJUSTMENT NO. 4188 AS SHOWN ON RECORD OF SURVEY FILED IN BOOK 109 OF RECORD OF SURVEYS PAGES 7 THROUGH 13 INCLUSIVE.
PH1-G
PARCEL "G" OF LOT LINE ADJUSTMENT NO. 4188 AS SHOWN ON RECORD OF SURVEY FILED IN BOOK 109 OF RECORD OF SURVEYS PAGES 7 THROUGH 13 INCLUSIVE.
PHi-H
PARCEL "H" OF LOT LINE ADJUSTMENT NO. 4188 AS SHOWN ON RECORD OF SURVEY FILED IN BOOK 109 OF RECORD OF SURVEYS PAGES 7 THROUGH 13 INCLUSIVE.
PH2-C
PARCEL "C" OF LOT LINE ADJUSTMENT NO. 4188 AS SHOWN ON RECORD OF SURVEY FILED IN BOOK 109 OF RECORD OF SURVEYS PAGES 7 THROUGH 13 INCLUSIVE.
PH2-D
PARCEL "D" OF LOT LINE ADJUSTMENT NO. 4188 AS SHOWN ON RECORD OF SURVEY FILED IN BOOK 109 OF RECORD OF SURVEYS PAGES 7 THROUGH 13 INCLUSIVE AND AMENDED BY LOT LINE ADJUSTMENT NO. 03-LLA-11 (SHOWN AS PARCEL "A") AS INSTRUMENT NO. 2003-500693 RECORDED JULY 7, 2003.
PH2-E
PARCEL "E" OF LOT LINE ADJUSTMENT NO. 4188 AS SHOWN ON RECORD OF SURVEY FILED IN BOOK 109 OF RECORD OF SURVEYS PAGES 7 THROUGH 13 INCLUSIVE.
PH2-R
PARCEL "R" OF LOT LINE ADJUSTMENT NO. 4188 AS SHOWN ON RECORD OF SURVEY FILED IN BOOK 109 OF RECORD OF SURVEYS PAGES 7 THROUGH 13 INCLUSIVE.
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PH2-Q
PARCEL "Q" OF LOT LINE ADJUSTMENT NO. 4188 AS SHOWN ON RECORD OF SURVEY FILED IN BOOK 109 OF RECORD OF SURVEYS PAGES 7 THROUGH 13 INCLUSIVE AND AMENDED BY LOT LINE ADJUSTMENT NO. 03-LLA-1 1 (SHOWN AS PARCEL "B") AS INSTRUMENT NO. 2003-500694 RECORDED JULY 7, 2003.
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EXHIBIT B
THIS EXHIBIT IS TO BE ATTACHED TO THE LEGAL DESCRIPTION PHI -A, PCL A PER LLA/ 4788
PH1-B, PCL B PER LLA/ 4188
PH1-F, PCL F PER LLA/ 4188
PH1-G, PCL G PER LLAy# 4188
PH 1-H, PCL H PER LLA/ 4188
PH2-C, PCL C PER LLA/ 4788
SHEET I OF I
PH2-D, PCL D PER LLAy/ 4188 AS
AMENDED (PCL A) PER LLA 03-LLA-11
PH2-E PCL E PER LLAZ 4188
PH2-Q, PCL Q PER LLA/ 4188 AS
AMENDED (PCL 8) PER LLA 03-LLA -11
PH2-R, PCL R PER LLA/ 4188
PHASE 1 AND 2
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EXHIBIT C
LIST OF PERMITS AND APPROVALS
Specific Plan 318
Finding of Substantial Conformance
EIR 418 and Addendum
Vesting Tentative Tract Map 31462
8/25/03 10090.2
H&O: #9831 v2
Exhibit C
00.555823.3
00.562979.1
EXHIBIT D
CONDITIONS OF APPROVAL
Exhibit D
CITY OF BEAUMONT
CONDITIONS OF APPROVAL
SPECIFIC PLAN 318
1 • HOLD HARMLESS
The applicant or any successor -in -interest shall defend, indemnify, and hold harmless the City of Beaumont (City), its agents, officers, or employees from any claim, action, or proceeding against the City, its agents, officers, or employees to attack, set aside, void or annul an approval of the City, its advisory agencies, appeal boards, or legislative body concerning this SPECIFIC PLAN. The City will promptly notify the applicant of any such claim, action, or proceeding against the City and will cooperate fully in the defense.
If the City fails to promptly notify the subdivider of any such claim, action, or proceeding or fails to cooperate fully in the defense, the subdivider shall not, thereafter, be responsible to defend, indemnify, or hold harmless the City.
2. DEFINITIONS
The words identified in the following list that appear in all capitals in the attached conditions of Specific Plan No. 318 shall be henceforth defined as follows:
SPECIFIC PLAN = Riverside County Specific Plan No_ 318
CHANGE OF ZONE = City of Beaumont Change of Zone No. 02-RZ-03.
EIR = Riverside County Environmental Impact Report No. 418.
3. SPECIFIC PLAN DOCUMENT
Specific Plan No. 318 shall consist of the following:
a. Specific Plan Document, which must include, but to be limited to, the following items:
1. City Council Specific Plan Resolution.
2. Conditions of Approval.
3. Specific Plan Zoning Ordinance Text.
4. Land Use Plan in both 8 ''/2" x 11" black -and -white and 11"x 17" color formats
S Specific Plan text.
6. Descriptions of each Planning Area in both graphical and narrative formats.
00563867.3
•
Specific Plan 318 Beaumont Conditions
Environmental Impact Report No. 418 Document, which must include, but not be limited to, the following items:
1. Mitigation Reporting/Monitoring Program (MIM).
2. Agency Notice of Preparation (NOP).
3. Draft EIR.
4. Agency Notice of Completion (NOC).
5. Comments on the NOC.
6. Final EIR, including the responses to comments on the NOC.
7. Technical Appendices
8. Initial Study/Addendum for Oak Valley Specific Plan 318/ Environmental Impact Report No. 418 Amendment
If any specific plan conditions of approval differ from the specific plan text or the specific plan conditions of approval shall take precedence. exhibits,
4. ORDINANCE REQUIREMENTS
The development of the property shall be in accordance with the mandatory requirements of all City ordinances not in conflict with the Specific Plan and state laws.
BUILDING AND SAFETY
5 • APPLICABLE GRADING REGULATIONS
Anything to the contrary, proposed by SP 318, shall not supersede the following: All grading shall conform to the Uniform Building Code, City's General Plan, and all other relevant laws, rules and regulations governing grading in City.
6. COMPLIANCE WITH SOILS REPORTS
All grading shall be performed in accordance with the recommendations of the approved- geotechnical/soils reports for this Specific Plan.
7 ALL CLEARANCES REQUIRED BEFORE PERMIT
Prior to issuance of a grading permit, all certifications affecting ding shall written clearances. This includes, but is not limited to, additionaenvironmental e
assessments, erosion control plans, geotecluucal/soils reports, and departmental clearances.
OC1563867.3
2
Specific Plan 318 Beaumont Conditions
FIRE DEPARTMENT
8. 9. WATER MAINS
HAZARDOUS FIRE AREA
The specific plan is located in the "Hazardous Fire Area" of Riverside County as shown on a map on file with the Clerk of the Board of Supervisors. Any building constructed on lots created by this project shall comply with the special construction provisions contained in City Ordinances for Hazardous Fire Areas, and the California Code of Regulations, Title 14, and Public Resources Code 4290.
All water mains and fire hydrants providing required fire flows shall be constructed in accordance with the appropriate sections of Riverside County Ordinance 460 and/or No. 787, subject to the approval by the Riverside County Fire Department.
10. ROOFING MATERIAL
The proposed project area lies within the VERY HIGH FIRE HAZARD SEVERITY ZONE as shown on the California Fire Classification maps on file. All buildings shall be constructed with a class "A" fire retardant roofing material as per the 1999 California Fire Code. Wood shingles and shakes are not recommended as a roof or other exterior covering material.
11. OPEN SPACE
Prior to approval of any development for lands adjacent to open space areas, a fire protection/vegetation management (fuel modification) plan shall be submitted to the Riverside County Fire Department for review and approval. The Homeowner's Association or appropriate management entity shall be responsible for maintaining the elements to the plan.
12. FINAL FIRE REQUIREMENTS
Final fire protection requirements and impact mitigation measures will be det when specific project plans are submitted. ermined
13. DISCLOSURE
This project lies within the VERY HIGH FIRE
on the Fire Hazard Zone Maps of California. All lrro©ffconstru construction shall meet SEVERITY aE mih m class "A" rating as described in the current model building code of California.
A fire fuel analysis of the open space/wildlands within and outside the project area ma be required prior to submitting a fuel modification plan. y NOTICE - The transferor of real property shall disclose to the transferee th lies within a VERY HIGH FIRE HAZARD area at this project OC1563867.3
Specific plan 3 j 8 Beaumont Conditions
PUBLIC WORKSDEPARTMENT
14. GREENBELT, BASIN MAINTENANCE
This project proposes detention basins and green belt channels which will require maintenance by a public agency, or a guarantee of maintenance by a public agency in the event the responsible private party fails to meet its maintenance obligation. In particular the detention basin adjacent to Planning Areas 9 and 10 would require such a arant ee
because the proposed downstream development would depend on it for publi chealth and safety. These types of flood control facilities are selected at the discretion of the applicant to complement the nature of the proposed development, and do not have a regional benefrt commensurate with the maintenance costs which are anticipated to be excessively high. Therefore, to ensure the public is not unduly burdened for future costs, prior to final approval or recordation of any case protected by these drainage facilities, the City will require an acceptable financial mechanism to be implemented to provide for reimbursement of maintenance costs in perpetuity.
assess individual benefiting property owners, or other means approved by the City. If an acceptable maintenance mechanism cannot be developed, the project should be redesigned to eliminate all high maintenance cost features.
PLANNING DEPARTMENT
15. MAINTAIN PLANNING AREAS
ALL PLANNING AREA NUMBERS
OF THE SPECIFIC PLAN SHALL BE MAINTAINED THROUGHOUT THE LIFE
SPECIFIC PLAN , UNLESS CHANGED THROUGH THE APPROVAL, OF A
ACCOMECIFI AMENDMENT OR SPECIFIC PLAN SUBSTANTIAL CONFORMANCE ANIED BY A REVISION TO THE COMPLETE SPECIFIC PLAN DOCUMENT.
16. TRAFFIC STUDY CONDITIONS
The City has reviewed the traffic study submitted by LSA Associates, Inc. for the referenced project. The study has been prepared in accordance with accepted traffic engineering standards and practices. The study analyzed year 2020 Buildout Impacts for the project and surrounding intersections.
The study indicates that it is possible to achieve a Level of Service "C" for the lo
intersections (some of which will require additional construction for mitigation at thug
time of development):
Singleton Road (NS)/I-10 Fwy EB Ramps (EW)
Singleton Road (NS)/I-10 Fwy WB Ramps (EW)
Singleton Road (NS)/Calimesa Boulevard (EW)
Cherry Valley Boulevard (NS)/I-10 Fwy EB Ramps (EW)
Cherry Valley Boulevard (NSA -10 Fwy WB Ramps (EW)
Cherry Valley Boulevard (NS)/Calimesa Boulevard (EW)
Nancy Avenue (NS)/Cherry Valley Boulevard (EW)
Beaumont Avenue (NS)/Cherry Valley Boulevard (EW)
OC1563867.3
4
Specific Plan 318 Beaumont Conditions
Brookside Avenue (NS)/Desert Lawn Drive (EW)
Nancy Avenue (NS)/Brookside Avenue (EW)
Oak Valley P'way (NSA -10 Fwy EB Ramps (EW)
Oak Valley P'way (NSA -10 Fwy WB Ramps (EW)
Beaumont Avenue (NSA -10 Fwy EB Ramps (EW)
Beaumont Avenue (NSA -10 Fwy WB Ramps (EW)
Potrero Boulevard (NS)/SR-60 EB Ramps (EW)
Potrero Boulevard (NS)/Champions Drive (EW)
"J" Street (NS)/San Timoteo Canyon Road (EW)
"J" Street (NS/"G" Street (EW)
San Timoteo Canyon Road (NS)/"G" Street (EW)
The study indicates that it is possible to achieve a Level of Service "D" for the following intersections (some of which will require additional construction for mitigation at the g time of development).
Calimesa Boulevard (NS)/Brookside Avenue (EW)
Beaumont Avenue (NS)/Brookside Avenue (EW)
Oak Valley Estates (NS)/ Oak Valley P'way
Nancy Street (NS)/14th Street (EW)
Beaumont Avenue (NS) Oak Valley P'way)
Elm Avenue (NS)/8th Street (EW)
California Avenue (NS)/6th Street (EW)
Potrero Boulevard (NS)/SR-60 WB Ramps (EW)
Mitigation to improve operations of the following intersection to the required Level of Service standards of the applicable jurisdictions (LOS "C" within the County of Riverside and the City of Calimesa, and LOS "D" within the City of Beaumont) for Year 2020 Buildout conditions is problematic, due either to existing conditions or to infeasible geometrics:
Singleton Road (NS)/Woodhouse Road (EW)
Cherry Valley Boulevard (NS)/Roberts Road -Desert Lawn Drive (EW) Desert Lawn Drive (NS)/Champions Drive (EW)
Singleton Road (NS)/ San Timoteo Canyon Road (EW)
Champions Drive (NS)/San Timoteo Canyon Road (EW)
Beaumont Avenue (NS)/6th Street (EW)
The associated conditions of approval incorporate mitigation measures identified in the traffic study which are necessary to achieve or maintain the required level of service.
17. ROADWAY IMPROVEMENTS
Roadway links wholly within the boundaries of Oak Valley Specific Plan No. 318, as well as the entirety of Champions Drive, shall be constructed at the time of project development per the requirements of the specific plan. Roadway links along the perimeter of the specific plan area (San Timoteo Canyon Road) shall be constructed to OC1563867.3
• Specific Plan 318 Beaumont Conditions
18. "P" STREET IMPROVEMENTS
their full half -width section concurrent with development of the adjacent Oak Valley, Specific Plan No. 318 Planning Areas. Intersections located within and adjacent to the boundaries of Oak Valley Specific Plan No. 318 (San Timoteo Canyon Road at "G" Street and "J" Street, Champions Drive at "J" Street Desert Lawn Drive) shall be constructed concurrent with the roadways with the geometrics illustrated in Figure D.I.12c, unless subsequent traffic impact analyses demonstrate that lesser geometrics can be provided which meet applicable LOS standards, as approved by the City Engineer. "P" Street shall be constructed to County of Riverside Standard No. 102, Modified Secondary Highway (56'/88' R.O.W.) from Champions Drive to San Timoteo Canyon Road.
19. WARRANTED TRAFFIC SIGNALS
The project is responsible for the following traffic signals when warranted through subsequent traffic studies done for implementing projects within the boundaries of the specific plan:
San Timoteo Canyon Road/"G" Street
San Timoteo Canyon Road/"T' Street
Desert Lawn Drive/Champions Drive
Potrero Boulevard/Champions Drive
Champions Drive/" T' Street
20. GEOMETRICS
The following intersections shall be improved to the geometrics as described.
Potrero Boulevard (NS)/San Timoteo Canyon Road (EW) shall be improved to provide the following geometrics:
Southbound: Two left turn lanes, one right turn lane.
Eastbound: One left turn lane, two through lanes.
Eastbound: Two through lanes, one right turn lane.
Potrero Boulevard (NS)/Champions Drive (EW) shall be improved to provide the following geometrics:
Northbound: Two ]eft turn lanes, one right turn lane.
Southbound: NA
Eastbound: Two through lanes.
Westbound: Two left turn lanes, two through lanes.
Desert Lawn Drive (NS)/Champions Drive (EW) shall be improved to provide the following geometrics:
OC15638673
6
Specific Plan 318 Beaumont Conditions
Northbound: NA
Southbound: Two left turn lanes, one right turn lane.
Eastbound: One left turn lane, two through lanes.
Westbound: Two through lanes, one right turn lane.
"J" Street (NS)/San Timoteo Canyon Road (EW) shall be improved to provide the following geometries:
Northbound: NA
Southbound: One left turn lane, one right turn lane.
Eastbound: One left turn lane, two through lanes.
Westbound: Two through lanes, one right turn lane.
"r Street
geometric(NS)/Champions Drive (EW) shall be improved to provide the following Northbound: Two through lanes, one right turn lane.
Southbound: Two left turn lanes, two through lanes.
Eastbound: NA
Westbound: One left turn lane, one right turn lane
"T' Street (NS)/"G" Street (EW) shall be improved to provide the following geometries:
Northbound: One left turn lane, two through lanes, one through/right turn lane.
Southbound: Two left turn lanes, three through lanes.
Eastbound: Two left turn lanes, one through/right turn lane.
Westbound: One left turn lane, one through lane, one through/right turn lane. "G" Street (NS)/San Timoteo Canyon Road (EW) shall be improved to provide the following geometries:
Northbound: NA
Southbound: One left turn lane, one right turn lane.
Eastbound: One left turn lane, two through lanes.
Westbound: Two through lanes, one right turn lane.
21. TRANSPORTATION MITIGATION FEE
The project proponent shall be required to pay all transportation impact and signal mitigation fees in effect in the City of Beaumont. The project proponent will receive credit against transportation impact and signal mitigation fees for improvements installed which are part of the transportation impact and signal mitigation fee schedule of improvements or similarly covered by the fee(s).
00563867.3
7
Specific Plan 318 Beaumont Conditions
22. "G" STREET IMPROVEMENTS
Concurrent with the construction of "G" Street within the boundaries of Oak Valley Specific Plan No. 318, "G" Street shall be constructed offsite to intersect with "J" Street as Modified Collector Street (78' R.O.W.)
PARKS AND RECREATION DEPARTMENT
23. TRAIL CONSTRUCTION
Prior to the approval of any implementing project, including but not limited to grading permits, the applicant shall have in place a funding or construction mechanism, as approved by the City, to insure the construction of the regional trail along San Timoteo Canyon Road.
PLANNING DEPARTMENT
24. PLANNING AREA STANDARDS
Prior to the approval of any implementing project within the SPECIFIC PLAN (i.e., tract map, parcel map, use permit, plot plan, etc.), the following condition shall be placed on the implementing project, with the blanks filled in at the implementing project:
"This implementing project is within Planning Area[s] of the SPECIFIC PLAN.
Accordingly, this project is subject to these development standards:
1. All residential lots must be at least
[square feet/acres].
2• The average residential lot size must be at least [square feet/acres].
3. The target density of this planning area is to du/ac.
4. The target range of the number of dwelling units in this planning area is to
5. Entry monumentation is required at the intersection of
6. Roadway landscaping is required at
7. Recreational trails are located at
8. OC\563867.3
and
This implementing map is conditioned to build a park at prior to the th building permit. p
[Residential] [Commercial] [Industrial] buildings must conform to the design guidelines on pages to of the SPECIFIC PLAN."
8
Specific Plan 318 Beaumont Conditions
25, MITIGATION MONITORING PROGRAM (GENERAL)
Prior to approval of any implementing project within the SPECIFIC PLAN(i.e., tract map, parcel map, use permit, plot plan, etc.), the following condition shall be placed on the implementing project:
"The EIR prepared for the SPECIFIC PLAN imposes specific mitigation measures and monitoring requirements on the project. Certain conditions of the SPECIFIC PLAN and this implementing project constitute reporting/monitoring requirements for certain mitigation measures."
26. NON-EVIPLEMENT1NG MAPS
Prior to approval of any implementing project within the SPECIFIC PLAN (i.e., tract map, parcel map, use permit, plot plan, etc.), the following condition shall be placed on the implementing project:
"A land division filed for the purposes of phasing or financing shall not be considered an implementing development application for the purposes of the Planning Department's conditions of approval.
Should this project be an application for phasing or financing, all of the other conditions in this implementing project with a prefix of "SP" will be considered as NOTAPPLICABLE, and this condition shall be considered as MET. Should this project not be an application for phasing or financing, this condition shall be considered as NOT APPLICABLE."
27. PLANNING AREA SUMMARY TABLE
Prior to the approval of any implementing Project within the SPECIFIC PLAN (i.e., tract map, parcel map, use permit, plot plan, etc.), the following condition shall be placed on the implementing project:
The following table shows the residential map requirements of the adopted SPECIFIC PLAN:
Planning Areas: Density Range
Min lot size [sq. ft.] [du/acre] Target Density
00563867.3
9
Specific Plan 318 Beaumont Conditions
2 3
4 7B
8 10
11 12
14 15
16 18
19 20
22 23B
25 26
30 32
36 38
39 4,000
5,000
5,000
3,800
10,000
5,500
3,800
6,000
5,000
4,000
7,000
6,000
5,000
8,000
4,000
5,500
10,000
3,800
8,000
6,000
4,000
4,000
3,800
5,000
5-8
2-5
2-5
8-12
.2-2
2-5
8-12
2-5
2-5
12-20
2-5
2-5
5-8
2-2
2-5
2-5
2-2
8-12
2-5
2-5
5-8
5-8
8-12
2-5
6.0 4.0
4.0 10.0
1.0 4.0
10.0 4.0
4.0 20.0
4.0 4.0
6.0 2.0
4.0 4.0
1.0 12.0
4.0 4.0
6.0 6.0
12.0 4.0
This condition shall be considered MET if the implementing residential land division proposal is within the above mentioned standards. This condition may only be considered as NOT APPLICABLE if the implementing project is concurrent with a specific plan amendment that proposes to change the above -mentioned standards, or if this implementing project is either commercial or industrial in nature.
28. PROJECT LOCATION EXHIBIT
Prior to approval of any implementing project within the SPECIFIC PLAN (i.e., tract map, parcel map, use permit, plot plan, etc.), the following condition shall be placed on the implementing project:
"The applicant shall provide to the Planning Department an 8 %" x 11" exhibit showing where in the SPECIFIC PLAN this project is located. The exhibit shall also show all prior implementing projects within the SPECIFIC PLAN that have already been approved.
This condition shall be considered MET once the applicant provides the Planning Department with the required information. This condition may not be DEFERRED." 00563867.3
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Specific Plan 318 Beaumont Conditions
29. ACOUSTICAL, STUDY REQUIRED
Prior to the approval of any implementing project within Planning Areas 1, 10, 32, 36, and 38 of the SPECIFIC PLAN (i.e., tract map, use permit, plot plan, etc. the fo] condition shall be placed on the implementing project: )� lowing "PRIOR TO BUILDING PERMIT APPROVAL, an acoustical study shall be submitted to the Planning Department for review and approval.
This condition shall be considered MET if the relevant study has been approved Planning Department. This condition may be considered as NOT APPLICABLE if the Planning Department determines that the required study is not necessary.
30. OAK TREE PLAN REQUIREDPRIOR TO THE APPROVAL OF ANY
IMPLEMENTING PROJECT (I.E., TRACT MAP, PARCEL MAP, USE PERMIT, PLOT PLAN, ETC.) WITS PL
23B OF THE SPECIFIC PLAN ANNING AREAS 10, 11, 15, 16, 21A, 21B, 22, AND , THE PLACED ON THE IMPLEMENTING PROJOEC L ING CONDITION SHALL BE "PRIOR TO PROJECT APPROVAL, an oak tree inventory and conservation be developed providing detail by g plan shall
location numbered, its caliper (diameter) at breast height and its drip linearea. Each oak shall be (Treed its diameter identified, rated as to qualitative condition and desirability for retention, and canopy)
assigned a recommended mitigation replacement ratio if removal were required. The plan shall also include general mitigation guidelines covering how oak trees to be retained will be protected during construction activities, how oak trees to be removed will be monitored, and how mitigation plantings for those oak trees removed will be accomplished. Additionally, the plan shall include the following requirements: 1) No mass grading will be permitted within the oak woodlands on site. 2) Residential lots within oak woodlands will be individually sited to avoid mature oak trees (>12" diameter -breast -height (dbh) ) if at all possible. 3) No slab foundations shall be permitted within the drip -line (widest extent of canopy oa
be planted within the drip -line of oak trees. The oak tree plan hales. ll beo ysubmitted ted to the l
Planning Department for review and approval.
This condition shall be considered MET if the relevant inventory and conservation has been approved by the Planning Department. This condition may be consideredpasan NOT APPLICABLE if the Planning Department determines that the required plan is not necessary."
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• Specific Plan 318 Beaumont Conditions
31. DESIGN PLAN REQUI EDPRIOR TO THE APPROVAL OF ANY IMPLEMENTING PROJECT (I.E., TRACT MAP, PARCEL MAP, USE PERMIT, PLOT PLAN, ETC.) WITHIN PLANNING AREAS 1-4, 8, 10, 12, 14, 18, 20, 22, 25, 32, 36, 38, OR 39 OF
THE SPECIFIC PLAN, THE FOLLOWING CONDITION SHALL BE PLACED ON THE IMPLEMENTING PROJECT:
"PRIOR TO PROJECT APPROVAL, the developer shall submit a development plan to the Planning Department for review and approval, showing which amenities described in Exhibit D (which follows this condition) are applicable to this project.
This condition shall be considered MET when the Planning Department approves a plan showing specifically how a given development project will implement the general design concepts in Exhibit D. The development plan submittal may be DEFERRED prior to building permit issuance when incorporated into the Final Site Plan for the proposed project. This condition shall not be considered NOT APPLICABLE."
32. WATER ANALYSIS/AGREEMENT
Prior to the recordation of any implementing project (i.e., tract map, parcel map, etc.) or prior to the issuance of a building permit for any use permit (i.e., conditional use permit, plot plan, etc.), whichever come first, within any planning area of the SPECIFIC PLAN, the Planning Department shall receive an executed agreement between the developer and either (1) the San Gorgonio Pass Water Agency, (2) the Beaumont -Cherry Valley Water District, or (3) another qualified water service agency. The agreement shall provide for sufficient supplemental water supply to the development for domestic purposes.
This condition shall be considered MET if the applicant submits a satisfactory agreement to the Planning Department. This condition shall be considered NOT APPLICABLE if the Planning Department determines that significant new information (i.e., other documented additions to water supply or documented enhancements to groundwater recharge capability applicable to the project vicinity, etc.) would make such an agreement unnecessary. This condition cannot be DEFERRED.
33. PALE() STUDY REQUIRED
Prior to the approval of any implementing project within any planning area of the SPECIFIC PLAN (i.e., tract map, parcel map, use permit, plot 1 condition shall be placed on the implementing project: plan, etc.), the following
"PRIOR TO GRADING PERMIT ISSUANCE, a Paleontological Resources Impact Mitigation Program (PRIMP) study shall be submitted to the Planning Department for review and approval.
This condition shall be considered MET if the relevant study has been approved by the Planning Department. This condition may be considered as NOT APPLICABLE if the Planning Department determines that the required study is not necessary. 0C1563567.3
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Specific Plan 318 Beaumont Conditions
34. GEO STUDY REQUIRED
Prior to the approval of any implementing project (i.e., tract map,parcel plat plan, etc.) for which the Public Works Director requires further Geotechnical permit, analysis, the following condition shall be placed on the implementing project:
1 P Ject:
"PRIOR TO PROJECT APPROVAL", a Geotechnical investigation and seismic analysis shall be submitted to the Public Works Director for review and approval. The study shall treat the following issues:
1. Slope Stability/Landslide potential
2. Faulting
3. Treatment of recent alluvium
4. Shallow groundwater areas
5. Any other geologicaVGeotechnical issues identified by the Public Works Director as pertinent to development within the planning area(s) covered by the implementing development application.
This condition shall be considered MET if the relevant study has been approved by the Planning Department. This condition may be considered as NOT APPLICABLE if the Planning Department determines that the required study is not necessary.
The submittal of this study mandates that a CEQA determination of an Addendum to a previously adopted EIR be made, at a minimum."
35. AMENDMENT REQUIRED
Prior to the approval of any implementing
map, parcel map, use permit, plot plan, etc.), the fooject llowing condithin the ition on shall tract CIFIC PLAN (i.e., n
the implementing project: placed n
"If this implementing project meets any of the following criteria, an amendment the
SPECIFIC PLAN shall be required and processed concurrently with this implementing project:
1. The implementing project adds any area to, or deletes area from, the SPECIFIC PLAN;
2. The implementing project proposes a substantially different use than currently allowed in the SPECIFIC PLAN or as determined by the Planning Director.
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Specific Plan 318 Beaumont Conditions
Any amendment to the SPECIFIC PLAN, even though it may affect only one portion of the SPECIFIC PLAN, shall be accompanied by a complete specific plan document which includes the entire specific plan, including both changed and unchanged parts.
This condition shall be considered MET if the specific plan amendment has been filed, and NOT APPLICABLE if a specific plan amendment is determined to be unnecessary."
36. COMMON AREA
Prior to the approval of any implementing land division project within the SPECIFIC PLAN (i.e., tract map or parcel map), the following condition shall be placed on the implementing application:
PRIOR TO MAP RECORDATION, the following procedures for common area maintenance procedures shall be complied with:
a. A permanent master maintenance organization shall be established for the specific plan area, to assume ownership and maintenance responsibility for all common recreation, open space, circulation systems and landscaped areas. The organization may be public or private. Merger with an area -wide or regional organization shall satisfy this condition provided that such organization is legally and financially capable of assuming the responsibilities for ownership and maintenance. If the organization is a private association then neighborhood associations shall be established for each residential development, where required, and such associations may assume ownership and maintenance responsibility for neighborhood common areas. b. Unless otherwise provided for in these conditions of approval, common open areas shall be conveyed to the maintenance organizations as implementing development is approved or any subdivision as recorded.
c. The maintenance organization shall be established prior to or concurrent with the recordation of the first land division.
d. The common areas to be maintained by the master maintenance organization shall included, but not be limited to, the following: Planning Areas 5, 7A, 13, 17, 21B, 23A, 24, 31B, 34, and 37."
37. CC&R'S RES PUB COMMON AREA
Prior to the approval of any implementing land division project (i.e., tract map or parcel map), the following condition shall be applied to the land division PRIOR TO MAP RECORDATION if the permanent master maintenance organization referenced in the condition entitled "SP — Common Area Maintenance" is a public organization:
"The applicant shall convey to the City fee simple title, to all common open space areas, free and clear of all liens, taxes, assessments, leases (recorded or unrecorded) and easement, except those easements which in the sole discretion of the City are acceptable.
As a condition precedent to the City accepting title to such areas, the applicant shall OC1563867.3
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Specific Plan 318 Beaumont Conditions
notify the Planning Department that the following documents shall be submitted to the office of the Planning Director and submit said documents for review along with the current fee, which shall be subject to City approval:
1. A cover letter identifying the project for which approval is sought;
2. 3. A sample document, conveying title to the purchase, of an individual lot or unit which provides that the declaration of covenants, conditions and restrictions is incorporated therein by reference; and,
A signed and notarized declaration of covenants, conditions and restrictions; The declaration of covenants, conditions and restrictions submitted for review shall a) provide for a minimum term of 60 years, b) provide for the establishment of a property owners' association comprised of the owners of each individual lot or unit as tenants in common, and c) contain the following provision verbatim:
"Notwithstanding any provision in this Declaration to the contrary, the following provisions shall apply:
The property owners' association established herein shall, if dormant, be activated, by incorporation or otherwise, at the request of the City, and the property owners' association shall unconditionally accept from the City, upon the City's demand, title to all or any part of the `common area' more particularly described on Exhibit ` ' attached hereto. Such acceptance shall be through the president of the property owner's association, who shall be authorized to execute any documents required to facilitate transfer of the `common area'. The decision to require activation of the property owners' association and the decision to require that the association unconditionally accept title to the `common area' shall be at the sole discretion of the City.
In the event that the `common area', or any part thereof; is conveyed to the property owners' association, the association, thereafter, shall own such `common area', and shall not sell or transfer such `common area' or any part thereof; absent the prior written consent of the Planning Director or the association shall have the right to assess the owner of each individual lot or unit for the reasonable cost of maintaining such `common area', and shall have the right to lien the property of any such owner who defaults in the payment of a maintenance assessment. An assessment lien, once created, shall be prior to all other liens recorded subsequent to the notice of assessment or other document creating the assessment lien.
This declaration shall not be terminated, `substantially' amended, or property deannexed therefrom absent the prior written consent of the Planning Director. A proposed amendment shall be considered `substantial' if it affects the extent, usage or maintenance of the `common area' established pursuant to this Declaration.
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• Specific Plan 318 Beaumont Conditions
In the event of any conflict between this Declaration and the Articles of Incorporation, the Bylaws, or the property owners' association Rules and Regulations, if any, this Declaration shall control."
Once approved by the Planning Director, the declaration of covenants, conditions and restrictions shall be recorded by the Planning Department with one copy retained for the case file.
38. ARCHBO MITIGA'I _ ION MONITORING PROGRAM
Prior to the approval of any implementing project within the SPECIFIC PLAN (i.e., tract map, parcel map, use permit, plot plan, etc.), the following condition shall be placed on the implementing project:
"PRIOR TO THE ISSUANCE OF GRADING PERMITS, the project applicant shall enter into an agreement with a qualified archaeologist. This agreement shall include, but not be limited to, the preliminary mitigation and monitoring procedures to be implemented during the process of grading, as found in the EIR. A copy of said agreement shall be submitted to the Planning Department. No grading permits will be issued unless the preliminary mitigation and monitoring procedures required prior to grading permits as described in the EIR are substantially complied with."
39. GENERIC MITIGATION MONITORING PROGRAM
Prior to the approval of any implementing project within the SPECIFIC PLAN (i.e., tract map, parcel map, use permit, plot plan, etc.), the following condition shall be placed on the implementing project:
"PRIOR TO THE ISSUANCE OF GRADING PERMITS, the project applicant shall provide to the Planning Department a detailed proposal for complying with the preliminary mitigation and monitoring procedures described in the EIR during the process of grading. Grading permits will not be issued unless the preliminary mitigation and monitoring procedures as described in the EIR are substantially complied with."
40. USFWS/CDFG CLEARANCES
Prior to the approval of any implementing project within the SPECIFIC PLAN (i.e., tract map, parcel map, use permit, plot plan, etc.) which may result in the disturbance of on - site habitat occupied by any species determined to be endangered or threatened by the United States Fish and Wildlife Service (USFWS) or California Department of Fish and Game (CDFG), the following condition shall be placed on the implementing project:
"PRIOR TO THE ISSUANCE OF GRADING PERMITS, the applicant shall obtain necessary take permit(s) from the USFWS and CDFG. A copy of said pei iuit(s) shall be submitted to the Planning Department."
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• Specific Plan 318 Beaumont Conditions
41. CDFG (SECT 1601/1603)
Prior to the approval of any implementing project (i.e., tract map, parcel map, use permit, plot plan, etc.) within Planning Areas 1, 5, 6, 9, 10, 14, 23B, 29, 30, 31B, 32 33 3 3B 34, 36, 37, 38, and 39 of the SPECIFIC PLAN, which may propose grading or construction within or along the banks of any blue -line streams, the following condition shall be placed on the implementing project:
"PRIOR TO THE ISSUANCE OF GRADING PERMITS,
written notification to the Planning Department that the applicant approp afteCalifornia obtain Department of Fish and Game notification pursuant to Sections 1601/1603 of the California Fish and Game Code has taken place, or obtain an "Agreement Regarding Proposed Stream or lake Alteration: (Sections 1601/1603 Permit) should any grading or construction be proposed within or along the banks of any natural watercourse or wetland determined to be jurisdictional, located either on -site or any required off -site improvement areas. Copies of any agreement shall be submitted with the notification."
42. ACOE CLEARANCE
Prior to the approval of any implementing project (i.e., tract map, parcel map, use permit, plot plan, etc.) within Planning Areas 1, 5, 6, 9, 10, 14, 23B, 29, 30, 31B, 32, 33A, 33B, 34, 36, 37, 38, and 39 of the SPECIFIC PLAN, which propose grading or construction within or along the banks of any blue -line stream which is determined to be within the jurisdiction of the United States Army Corps of Engineers, the following condition shall be placed on the implementing project:
'PRIOR TO THE ISSUANCE OF GRADING P
written notification to the Planning De STS' the applicant shall obtain any watercourse or
wetland deter „lined to be jurisdictional, located eitheat rlon e is to torn on n of ny required off -site
improvement areas, complies with the U.S. Army Corps of Engineers Nationwide Permit Conditions, or obtain a permit under Section 404 of the Clean Water Act should any grading or construction be proposed within or along the banks of any natural watercourse or wetland. Copies of any agreement shall be submitted with the notification."
43. ENTRY MONUMENTATION
Prior to the approval of any implementing project within the SPECIFIC PLAN (i.e., tract map, parcel map, use permit, plot plan, etc.), the following condition shall be placed on the implementing project:
"PRIOR TO THE ISSUANCE OF BUILDING PERMITS, the following be added to the landscaping requirements of the implementing project: language shall
1. A primary entry monument shall be shown at locations indicated in Figure 4-1, with features as depicted in Figure 4-2 and Figure 4-3.
2. A secondary entry monument shall be shown at locations indicated in Figure 4-1, with features as depicted in figure 4-5.
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• Specific Plan 318 Beaumont Conditions
3. The entry monument shall be in substantial conformance with the design guidelines of Planning Area ` ' of the SPECIFIC PLAN, as shown on pages to
44. POST GRADING REPORT
Prior to approval of any implementing project within the SPECIFIC PLAN (i.e., tract map, parcel map, use permit, plot plan, etc.), the following condition shall be placed on the implementing project:
"PRIOR TO THE ISSUANCE OF BUILDING PERMITS, the project applicant shall provide to the Planning Department a post grading report. The report shall describe how the mitigation and monitoring program as described in the EIR and pre -grading agreement[s] with the qualified archaeologist and paleontologist were complied with."
45. SCHOOL MITIGATION
Prior to the approval of any implementing project within the SPECIFIC PLAN (i.e., tract map, parcel map, use permit, plot plan, etc.), the following condition shall be placed on the implementing project:
"PRIOR TO BUILDING PERMITS, impacts to the Beaumont Unified School District shall be mitigated in accordance with the existing mitigation agreement with the developer dated December 19, 1989. If said agreement shall be rescinded, then impacts to schools shall be mitigated in accordance with the state law."
46. PHASE 1 PARKS
Prior to approval of any implementing residential project within Phase One of the SPECIFIC PLAN, a phasing plan for the design and construction of Phase One parks shall be submitted to and approved by the Planning Department. The plan shall provide for parks, design and construction as well as landscape maintenance and upkeep. The plan shall also document a permanent maintenance mechanism for the parks and their facilities. Conditions for applicable thresholds will be developed concurrent with approval of the phasing plan consistent with the City of Beaumont's General Plan standards.
This condition shall be considered MET if a document is submitted that is acceptable to both the Planning Department. This condition may be considered as NOT APPLICABLE if the implementing application is not within Phase One.
47. PHASE 2 PARKS
Prior to the approval of any implementing residential project within Phase Two of the SPECIFIC PLAN, a phasing plan for the design and construction of Phase Two parks shall be submitted to and approved by the Planning Department. The plan shall provide for parks design and construction as well as landscape maintenance and upkeep. The plan shall also document a permanent maintenance mechanism for the parks and their OC15638673
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Specific Plan 318 Beaumont Conditions
facilities. Conditions for applicable thresholds will be developed concurrent with approval of phasing plan consistent with the City of Beaumont's General Plan standards.
This condition shall be considered MET if a document is submitted that is acceptable to the Planning Department. This condition may be considered as NOT APPLICABLE if the implementing application is not within Phase Two.
48. PHASE 3 PARKS
Prior to approval of any implementing residential project within Phase Three of the SPECIFIC PLAN, a phasing plan for the design and construction of the parks within Phase Three shall be submitted to and approved by the Planning Department. The plan shall provide for parks design and construction as well as landscape maintenance and upkeep. The plan shall also document a permanent maintenance mechanism for the parks and their facilities. Conditions for applicable thresholds will be developed concurrent with the approval of the phasing plan consistent with the City of Beaumont's General Plan standards.
This condition shall be considered MET if the applicable information is provided to the Planning Department. This condition may be considered as NOT APPLICABLE if the implementing project is not within Phase Three.
49. BIOLOGICAL MITIGATION
Prior to approval of any implementing project within Planning Areas 1, 5, 6, 9, 10, 14, 23B, 29, 30, 31B, 32, 33A, 33B, 37, 38, and 39 of SPECIFIC PLAN (i.e., tract map, parcel map, use permit, plot plan, etc.), the following condition shall be placed on the implementing project:
`PRIOR TO THE ISSUANCE OF GRADING PERMITS, a mitigation program shall be implemented providing for the preservation, creation or enhancement of replacement riparian woodland or wetland habitat. The initial focus for mitigation shall be within the San Timoteo Canyon Creek corridor where the mitigation shall be implemented to the greatest extent feasible. The mitigation program must be acceptable to the Army Corps of Engineers (Corps), Californian Department of Fish and Game (CDFG), and the Regional Water Quality Control Board (BOARD) under their Section 404, 1603, and 401 or other applicable permitting process, respectively. The Planning Department must receive written confirmation of the acceptability of the mitigation measures from the Corps, CDFG and/or the Board.
If the Corps, CDFG, and/or Board will not accept the mitigation or if the implementation of the program in the San Timoteo Canyon Creek corridor is not feasible, the mitigation shall be implemented within the site of the SPECIFIC PLAN or at a suitable off site location in accordance with the EIR.
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TRANS DEPARTMENT
50. TRAFFIC STUDY REQUIRED
Site specific traffic studies will be required for all subsequent implementing projects within the boundaries of Specific Plan No. 318, as deemed necessary by the City Engineer. Subsequent traffic studies shall monitor development within the specific plan and its associated trip generation. Traffic signals identified in Condition 19, Warranted Traffic Signals, will be installed by the project without credit for signal mitigation fees unless determined to not be warranted under existing or any future conditions and as approved by the City Engineer.
51. OFF -SITE MITIGATION
EIR No. 418 proposes mitigation for traffic impacts to off -site roadways and intersections located within various jurisdictions. The following intersections have been identified within the EIR as requiring mitigation:
Singleton Road/I-10 Fwy EB Ramps
Singleton Road/I-10 Fwy WB Ramps
Singleton Road/Calimesa Boulevard
Cherry Valley Boulevard/Roberts Road — Desert Lawn Drive Cherry Valley Boulevard/I-10 Fwy EB Ramps
Cherry Valley Boulevard/I-10 Fwy WB Ramps
Cherry Valley Boulevard/ Calimesa Boulevard
Nancy Avenue/Cherry Valley Boulevard
Beaumont Avenue/Cherry Valley Boulevard
Brookside Avenue/Desert Lawn Drive
Brookside Avenue/Calimesa Boulevard
Beaumont Avenue/Brookside Avenue
Champions Drive/San Timoteo Canyon Road
Oak Valley P'way/I-10 Fwy EB Ramps
Oak Valley P'way/I-10 Fwy WB Ramps
Oak Valley P'way/Oak View Drive
Nancy Avenue/14th Street
Beaumont Avenue/14th Street
Elm Avenue/8h Street
California Avenue/6th Street
Beaumont/I-10 Fwy EB Ramps
Beaumont Avenue/I-10 Fwy WB Ramps
Potrero Boulevard/SR-60 EB Ramps
Potrero Boulevard/SR-60 WB ramps
Potrero Boulevard/San Timoteo Canyon Road
Singleton Road/San Timoteo Canyon Road
The project developer shall participate on a "fair share basis" in a regional mechanism that provides funding for the necessary improvements. Prior to the issuance of the first OC1563867.3
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DOC # 2016-0543919
12/07/2016 01:01 PM Fees: $0.00
Recorded in Official Records
County of Riverside
Peter Aldana
Assessor -County Clerk -Recorder
RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO:
City of Beaumont
Attention: City Clerk
550 East 6th Street
Beaumont, CA 92223
**This document was electronically submitted
to the County of Riverside for recording**
Receipted by: SOPHIA #466
(SPACE ABOVE THIS LINE RESERVED FOR
RECORDER'S USE)
APNs: 414-380-001 THROUGH 414-380-069; 414-390-001 THROUGH 414-390-059; 414- 400-001 THROUGH 414-400-084; 414-410-001 THROUGH 414-410-073; 414-110-048; 414- 420-001 THROUGH 414-420-072; 414-430-001 THROUGH 414-430-063; 414-440-001 THROUGH 414-440-083; 414-450-001 THROUGH 414-450-062; 414-460-001 THROUGH 414-460-040; 414-470-001 THROUGH 414-470-072; 414-480-001 THROUGH 414-480-081; 414-490-001 THROUGH 414-490-066; 414-500-001 THROUGH 414-500-067; 414-110-056 THROUGH 414-110-064; 414-100-039; AND 414-100-040.
FIRST AMENDMENT TO
DEVELOPMENT AGREEMENT
DOC #2016-0543919 Page 2 of 19
FIRST AMENDMENT TO
DEVELOPMENT AGREEMENT
This FIRST AMENDMENT TO DEVELOPMENT AGREEMENT (hereinafter this "Amendment") is entered into as of November i5 , 2016 (the "Effective Date"), by and between THE CITY OF BEAUMONT, CALIFORNIA (the "City"), and LV HEARTLAND LLC, a Delaware limited liability company (the "Owner"). This Amendment is entered into with reference to the following Recitals:
RECITALS
A. Owner owns in fee that certain unimproved real property consisting of approximately four hundred seventeen (417) acres located in the City of Beaumont, County of Riverside, State of California, which property is more fully described on Exhibit "A" attached hereto and incorporated by reference herein (the "Property").
B. Heartland Beaumont California L.T.D. ("Original Developer") and the City previously entered into that certain Development Agreement with respect to the Property, which was adopted by the City on October 11, 1993, pursuant to Ordinance No. 726, and which became effective in accordance with its terms on December 9, 1993 (the "Original Development Agreement"). The Original Development Agreement was recorded in the Official Records of Riverside County, California (the "Official Records") on December 9, 1993, as Instrument Number 490898. All capitalized terms used but not otherwise defined herein shall have the meanings ascribed to such terms in the Original Development Agreement.
C. Temecula Valley, LLC, a Delaware limited liability company, as successor -in - interest to Original Developer, assigned all of its right, title, and interest in the Original Development Agreement to SunCal Heartland LLC, a Delaware limited liability company ("SunCal"), pursuant to that certain Assignment of Development Agreement dated May 26, 2005, and recorded in the Official Records on May 26, 2005, as Instrument Number 2005- 0419668 (the "SunCal Assignment").
D. SunCal, through its Chapter 11 bankruptcy estate, subsequently assigned all of its right, title, and interest in the Original Development Agreement to Owner, as designee of SunCal's creditor Lehman ALI Inc., a Delaware corporation, pursuant to that certain Assignment and Assumption Agreement dated April 27, 2012 (the "Bankruptcy Court Assignment"). The Original Development Agreement is listed as item 1 of Exhibit "A" to the Bankruptcy Court Assignment, under the heading "Assumed Executory Contracts." E. SunCal, through its Chapter 11 bankruptcy estate, and the City entered into that certain Memorandum of Understanding dated April 7, 2009 (the "Original Memorandum of Understanding"), which, among other things, contemplated that the City would acquire bridge materials from the Chapter 11 estate, and perform the environmental mitigation project.
F. Contemporaneously with entering into this Amendment the City and Owner are entering into that certain Settlement, Waiver, and Release Agreement (the "Settlement Agreement") whereby the parties release one another from certain claims as provided therein. 2 102109139.10
DOC #2016-0543919 Page 3 of 19
G. Contemporaneously with entering into this Amendment the City and Owner are also entering into that certain Memorandum of Understanding (the "New Memorandum of Understanding") to, amongst other things, terminate the Original Memorandum of Understanding, as defined therein.
H. City and Owner now desire to amend the Original Development Agreement to, among other terms, extend the term of the Original Development Agreement, cooperate in the formation of a new community facilities district, and provide for payment to the City as provided therein.
I. Prior to entering into this Amendment, the City complied with all legal requirements for notice, public hearings, findings, votes, and other procedural matters necessary as a condition precedent to entering into this Amendment with Owner, including without limitation the requirements of the California Environmental Quality Act.
AGREEMENT
NOW, THEREFORE, in consideration of the above Recitals and of the mutual covenants hereinafter contained and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereby agree as follows:
1. No Default. The City hereby confirms that (a) the Original Development Agreement, as assigned pursuant to the SunCal Assignment and the Bankruptcy Court Assignment and as amended by this Amendment (collectively, the "Development Agreement"), is in full force and effect and (b) to the best of City's knowledge no breach or default exists under the Development Agreement, nor has any act or omission occurred which, solely as a result of the giving of notice or passage of time, or both, would constitute a breach or default under the Development Agreement.
2. "Owner" Defined.
(a) Section 1.1.17 of the Original Development Agreement is hereby deleted in its entirety and replaced with the following:
"Owner" means LV Heartland LLC, a Delaware limited liability company, and its successors in interest to all or any part of the Property. (b) Notwithstanding anything to the contrary set forth in Section 2.7 of the Original Development Agreement, all notices to Owner shall be delivered as follows:
LV Heartland LLC
c/o Lehman Brothers Holdings Inc.
3121 Michelson Drive, Suite 200
Irvine, California 92612
Attention: Eric Hoffman
E-mail: [email protected]
with a copy to:
3 102109139.10
DOC #2016-0543919 Page 4 of 19
LV Heartland LLC
c/o Lehman Brothers Holdings Inc.
1271 Avenue of the Americas, 40th Floor
New York, New York 10020
Attention: Peter Campbell
E-mail: [email protected]
with a copy to:
Gibson, Dunn & Crutcher LLP
333 South Grand Avenue, Suite 4900
Los Angeles, California 90071
Attention: Douglas M. Champion, Esq.
E-mail: [email protected]
3. "Property" Defined. Exhibit "A" of the Original Development Agreement is hereby deleted in its entirety and replaced with Exhibit "A" attached hereto and incorporated herein by reference.
4. Term. Section 2.3 of the Original Development Agreement is hereby deleted in its entirety and replaced with the following:
"Term.
The term of this Agreement (the "Teuin") shall commence on the Effective Date and shall expire on December 9, 2028 (the "Expiration Date"). The Expiration Date shall be subject to a single option to extend the Expiration Date by an additional term of five (5) years provided that Owner has obtained building permits for at least five hundred (500) residential lots within the Project prior to the initial Expiration Date.
5. Exactions. Notwithstanding anything to the contrary set forth in the Original Development Agreement, including without limitation Section 3.7.1(d) therein, the Project shall be subject to all Development Exactions levied by the City against the Project and those imposed by the City on behalf of any other public agency including, but not limited to Transportation Uniform Mitigation Fees ("TUMF") and Riverside County Multiple Species Habitat Conservation Plan ("MSHCP") fees, at the rate as required at the time such fees are due and payable, which shall be at the time of issuance of building permits, or otherwise as specified by applicable law.
6. Consideration. In consideration of the mutual covenants, conditions, and agreements in this Amendment, Owner shall remit to City a fee of three million dollars ($3,000,000.00) which shall be due and payable at the earlier to occur of (a) the time of the close of escrow of the sale of the Property by Owner to a third -party purchaser ("Buyer"), and (b) February 28, 2017.
City hereby consents to the transfer of the Property to Buyer to the extent such consent is required by the teiins of the Original Development Agreement. City further consents to the assignment by Owner to Buyer or its designee of that certain Deposit Agreement for Expenses 4 102109139.10
DOC #2016-0543919 Page 5 of 19
Incurred, dated May 13, 2014, by and among Riverside -Corona Resource Conservation District, City, and Owner. Notwithstanding the forgoing provisions of this Section 6, if City has not timely received the sum of three million dollars ($3,000,000.00) from Owner as provided in this Section 6, this Amendment, the Settlement Agreement and New Memorandum of Understanding will not take effect, and shall be deemed null and void ab initio.
7. Water Well. Section 4.3.1 of the Original Development Agreement is hereby deleted in its entirety and replaced with the following:
"The City acknowledges that Owner's predecessor -in -interest previously executed a Bill of Sale for a water well ("Well") located on the Property which Owner believes currently exists on Parcel 14 of Parcel Map 34880. However, City makes no representation or warranty regarding the legal status or effect of such Bill of Sale as it pertains to the ownership and title to the Well or the underlying water rights. The Owner may only make use of the Well for irrigation and construction water on the Property and any habitat mitigation land associated with the Project and not for any other or offsite use. Concurrent with Owner's payment of the amounts set forth in Section 6, the City agrees, at no cost to City, to execute a Bill of Sale to convey whatever title is held by the City to the We11 back to Owner in its "AS IS, WHERE IS" condition, and to cooperate with Owner, at no cost to City, in Owner's efforts to make such use of the Well and, to that end, shall cooperate with the Owner, at no cost to City, in good faith in Owner's efforts with any requisite public agencies with jurisdiction over the Well, including but not limited to the California Department of Fish and Wildlife ("CDFW"), the Beaumont Cherry Valley Water District ("BCVWD"), and any other public agencies having jurisdiction over such matters, as applicable. Owner agrees to hold harmless and release City from and against any claims, actions, liability, or costs associated with conveying whatever title is held by the City in the Well to Owner."
8. Relinquishment of Offer of Dedication. The Parties acknowledge that Parcel Map 34880 contains offers of dedication to the City for part or all of Parcel 15 and Parcel 17. The City has not accepted this offer of dedication, and hereby relinquishes its right to do so provided that Owner conveys Parcel 15 and Parcel 17 for conservation purposes as required by CDFW and in compliance with all land use entitlements and conditions of approval applicable to the Property.
9. Assumption of Mitigation Obligation.
(a) City assigns, and Owner assumes, any remaining habitat mitigation obligations under that certain Habitat Mitigation and Monitoring Plan for the Heartland Project dated November 20, 2006 (as amended, the "HMMP") subject to the approval of CDFW.
Promptly following the execution of this Amendment, the City and Owner shall diligently pursue approval by CDFW of an assignment and assumption agreement whereby the City assigns, and Owner assumes, any remaining obligations, including, but not limited to, habitat mitigation obligations under the HMMP. The form of such documentation shall be reasonably acceptable to both City and Owner. In the event that CDFW does not so approve the assignment and assumption by Owner of the HMMP and/or during the period while the assignment and assumption of the HMMP is pending with CDFW, City shall not be obligated to comply with the terms of the HMMP unless Owner advances the costs of compliance with the terms of the 5 102109139.10
DOC #2016-0543919 Page 6 of 19
HMMP to the City or undertakes such compliance efforts on behalf of the City subject to its reasonable approval.
(b) In the event that part of the Property is transferred and the Property is held by two or more parties (other than residential purchasers) all of the parties shall be jointly and severally liable under the Development Agreement.
10. Formation of New Community Facilities District. The provisions set forth in Exhibit "B" attached hereto are incorporated herein by reference. All terms and conditions regarding the New CFD (as defined in Exhibit "B") shall be governed by Exhibit "B".
References in the Development Agreement to the "CFD" refer to CFD No. 93-1 only and shall not affect the provisions regarding the New CFD in Exhibit "B".
11. HOA Maintenance Obligations. In connection with Owner or its successors and assigns entering into a declaration of covenants, conditions, and restrictions for the Property ("CC&Rs") as and when required by the conditions of approval of the Heartland Specific Plan, the residential property owners' association described in such CC&Rs (the "Association") shall assume responsibility, at the Association's sole cost and expense, for all of the onsite maintenance obligations for the Project including but not limited to those set forth on Exhibit "C" attached hereto and incorporated herein by reference (the "Assumed Maintenance Obligations"). The Assumed Maintenance Obligations shall be expressly set forth in the CC&Rs, and the provision of the CC&Rs related to such Assumed Maintenance Obligations shall be subject to the prior written approval of the City Planning Director, in consultation with the City Attorney, and not be amended without the written consent of the City Planning Director, such consent not to be unreasonably withheld, conditioned, or delayed.
12. Lien Contracts. City agrees that Owner and its successors and assigns may utilize lien contracts pursuant to California Government Code Section 66499(a)(4) in lieu of bonds as security under the Subdivision Improvement Agreements executed in connection with the Project. Such lien contracts shall provide that prior to obtaining any ministerial permit for the Project, including a grading or building permit, or prior to commencing the installation and construction of any portion of the Improvements required by a Subdivision Improvement Agreement, Owner shall deposit any application or inspection fees, if any such fees are required under City regulations, applicable law, or ordinance, and Owner shall substitute payment and performance bonds within the entirety of the applicable Tract, for any other improvements which are needed for ingress and egress to the Tract and improvements which are amenities, utilities and other improvements which are related to such Tract in amounts satisfactory to the City in place of the lien contract, and at such time the City shall release the applicable lien contract and the City's lien associated therewith. The lien contracts shall be recorded in a first position ahead of any other mortgage, deed of trust, lien or encumbrance other than the lien for taxes and assessments not yet due and payable. The City shall not be required at any time to subordinate the lien contracts to any mortgage, deed of trust or other lien or encumbrance.
13. Recordation of Amendment; Runs with the Land. This Amendment shall be recorded in the Official Records by City. This Amendment shall run with the land and bind the successors and assigns of Owner.
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14. Severability. If any term, provision, covenant or condition of this Amendment shall be determined invalid, void or unenforceable, the remainder of this Amendment shall not be affected thereby to the extent such remaining provisions are not rendered impractical to perform taking into consideration the purposes of this Amendment.
15. Interpretation and Governing Law. This Amendment and any dispute arising hereunder shall be governed and interpreted in accordance with the laws of the State of California. This Amendment shall be construed as a whole according to its fair language and common meaning to achieve the objectives and purposes of the parties hereto, and the rule of construction to the effect that ambiguities are to be resolved against the drafting party shall not be employed in interpreting this Amendment, all parties having been represented by counsel in the negotiation and preparation hereof.
16. Section Headings. All section headings and subheadings are inserted for convenience only and shall not affect any construction or interpretation of this Amendment.
17. Singular and Plural. As used herein, the singular of any word includes the plural.
18. Time of Essence. Time is of the essence in the performance of the provisions of this Amendment as to which time is an element.
19. Waiver. Failure by a party to insist upon the strict performance of any of the provisions of this Amendment by the other party, or the failure by a party to exercise its rights upon the default of the other party, shall not constitute a waiver of such party's right to insist and demand strict compliance by the other party with the terms of this Amendment thereafter.
20. No Third Party Beneficiaries. This Amendment is made and entered into for the sole protection and benefit of the parties and their successors and assigns. No other person shall have any right to action based upon any provision of this Amendment.
21. Counterparts. This Amendment may be executed by the parties in counterparts, which counterparts shall be construed together and have the same effect as if all of the parties had executed the same instrument.
22. Approval. This Amendment shall not become effective until it has been approved by both parties and executed by their duly authorized representatives. In the case of City, approval requires compliance with the Development Agreement amendment process contained in Government Code Sections 65867, 65867.5 and 65868 including a notice of intent, public hearing and adoption by an ordinance.
23. Interpretation. Except as specifically amended by this Amendment, the Original Development Agreement shall remain in full force and effect. To the extent of any inconsistency between this Amendment and the Original Development Agreement, this Amendment shall control. The Recitals to this Amendment are hereby incorporated herein by reference. [signatures on following page]
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IN WITNESS WHEREOF, the parties hereto have executed this Amendment on the day and year first set forth above.
CITY: CITY OF BEAUMONT
OWNER:
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LV HEARTLAND LLC
By: LV M/H Ventures LLC, a DE LLC, its
managing member
By:
Name:
Title:
8 Jonathan storyp
Authorized 8
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Signature and Office o individual
taking acknowledgm-nt
STATE OF NEW YORK )
) ss..
COUNTY OF NEW YORK )
On the '-J_ d y of Q� in the year 2016 before me, the undersigned, personally appeared Jam(an tut n , personally known to me or proved to me on the basis of satisfactory evidence to be the individual whose name is subscribed to the within instrument and acknowledged to me that he/she executed the same in his/her capacity, and that by his/her signature on the instrument, the individual, or the person or entity upon behalf of which the individu._ acted, executed the instrument.
NOTARY PUBLIC, STATE OF NEW YORK
NO.01NE6327770
QUALIFIED IN QUEENS COUNTY
MY COMMISSION EXPIRES JUL 13, 2019
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EXHIBIT A
Legal Description
THE LAND REFERRED TO HEREIN BELOW IS SITUATED IN THE CITY OF
BEAUMONT, COUNTY OF RIVERSIDE, STATE OF CALIFORNIA, AND IS DESCRIBED AS FOLLOWS:
PARCEL 1: (414-380-001 THROUGH 414-380-069)
LOTS 1 THROUGH 69, INCLUSIVE, AND LETTERED LOTS A THROUGH F, INCLUSIVE, OF TRACT NO. 27971-1, IN THE CITY OF BEAUMONT, COUNTY OF RIVERSIDE, STATE OF CALIFORNIA, AS PER MAP FILED IN BOOK 443, PAGES 95 THROUGH 99, INCLUSIVE, OF MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY.
PARCEL 2: (414-390-001 THROUGH 414-390-059)
LOTS 1 THROUGH 59, INCLUSIVE, AND LETTERED LOTS A THROUGH G, INCLUSIVE, OF TRACT NO. 27971-2, IN THE CITY OF BEAUMONT, COUNTY OF RIVERSIDE, STATE OF CALIFORNIA, AS PER MAP FILED IN BOOK 443, PAGES 100 THROUGH 104, INCLUSIVE, OF MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY.
PARCEL 3: (414-400-001 THROUGH 414-400-084)
LOTS 1 THROUGH 84, INCLUSIVE, AND LETTERED LOTS A THROUGH F, INCLUSIVE, OF TRACT NO. 27971-3, IN THE CITY OF BEAUMONT, COUNTY OF RIVERSIDE, STATE OF CALIFORNIA, AS PER MAP FILED IN BOOK 444, PAGES 1 THROUGH 5, INCLUSIVE, OF MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY.
PARCEL 4: (414-410-001 THROUGH 414-410-073)
LOTS 1 THROUGH 73, INCLUSIVE, AND LETTERED LOTS A THROUGH F, INCLUSIVE, OF TRACT NO. 27971-4, IN THE CITY OF BEAUMONT, COUNTY OF RIVERSIDE, STATE OF CALIFORNIA, AS PER MAP FILED IN BOOK 444, PAGES 6 THROUGH 9, INCLUSIVE, OF MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY.
PARCEL 5: (414-110-048)
LOTS 1 THROUGH 127, INCLUSIVE, AND LETTERED LOTS A THROUGH J, INCLUSIVE, OF TRACT NO. 27971-5, IN THE CITY OF BEAUMONT, COUNTY OF RIVERSIDE, STATE OF CALIFORNIA, AS PER MAP FILED IN BOOK 448, PAGES 58 A- I
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THROUGH 63, INCLUSIVE, OF MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY.
PARCEL 6: (414-420-001 THROUGH 414-420-072)
LOTS 1 THROUGH 72, INCLUSIVE, AND LETTERED LOTS A THROUGH E, INCLUSIVE, OF TRACT NO. 27971-6, IN THE CITY OF BEAUMONT, COUNTY OF RIVERSIDE, STATE OF CALIFORNIA, AS PER MAP FILED IN BOOK 444, PAGES 10 THROUGH 14, INCLUSIVE, OF MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY.
PARCEL 7: (414-430-001 THROUGH 414-430-063)
LOTS 1 THROUGH 63, INCLUSIVE, AND LETTERED LOTS A THROUGH E, INCLUSIVE, OF TRACT NO. 27971-7, IN THE CITY OF BEAUMONT, COUNTY OF RIVERSIDE, STATE OF CALIFORNIA, AS PER MAP FILED IN BOOK 444, PAGES 15 THROUGH 19, INCLUSIVE, OF MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY.
PARCEL 8: (414-440-001 THROUGH 414-440-083)
LOTS 1 THROUGH 83, INCLUSIVE, AND LETTERED LOTS A THROUGH G, INCLUSIVE, OF TRACT NO. 27971-8, IN THE CITY OF BEAUMONT, COUNTY OF RIVERSIDE, STATE OF CALIFORNIA, AS PER MAP FILED IN BOOK 444, PAGES 20 THROUGH 24, INCLUSIVE, OF MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY.
PARCEL 9: (414450-001 THROUGH 414-450-062 AND 414-460-001 THROUGH 414-460- 040)
LOTS 1 THROUGH 102, INCLUSIVE, AND LETTERED LOTS A THROUGH F, INCLUSIVE, OF TRACT NO. 27971-9, IN THE CITY OF BEAUMONT, COUNTY OF RIVERSIDE, STATE OF CALIFORNIA, AS PER MAP FILED IN BOOK 444, PAGES 25 THROUGH 30, INCLUSIVE, OF MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY.
PARCEL 10: (414-470-001 THROUGH 414-470-072 AND 414-480-001 THROUGH 414-480- 081
LOTS 1 THROUGH 153, INCLUSIVE, AND LETTERED LOTS A THROUGH J, INCLUSIVE, OF TRACT NO. 27971-10, IN THE CITY OF BEAUMONT, COUNTY OF RIVERSIDE, STATE OF CALIFORNIA, AS PER MAP FILED IN BOOK 444, PAGES 31 THROUGH 36, INCLUSIVE, OF MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY.
PARCEL 11: (414-490-001 THROUGH 414-490-066)
A-2
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LOTS 1 THROUGH 66, INCLUSIVE, AND LETTERED LOTS A THROUGH D, INCLUSIVE, OF TRACT NO. 27971-11, IN THE CITY OF BEAUMONT, COUNTY OF RIVERSIDE, STATE OF CALIFORNIA, AS PER MAP FILED IN BOOK 444, PAGES 37 THROUGH 40, INCLUSIVE, OF MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY.
PARCEL 12: (414-500-001 THROUGH 414-500-067)
LOTS 1 THROUGH 67, INCLUSIVE, AND LETTERED LOTS A THROUGH E, INCLUSIVE, OF TRACT NO. 27971-12, IN THE CITY OF BEAUMONT, COUNTY OF RIVERSIDE, STATE OF CALIFORNIA, AS PER MAP FILED IN BOOK 444, PAGES 41 THROUGH 44, INCLUSIVE, OF MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY.
PARCEL 13: (414-110-056 THROUGH 414-110-064 AND 414-100-039 AND 414-100-040) PARCELS 13 THROUGH 23, INCLUSIVE, AND LETTERED LOTS A, C, F, G, H, I, AND X ALL OF PARCEL MAP NO. 34880, RECORDED IN BOOK 237 OF PARCEL MAPS, PAGES 67 THROUGH 76, INCLUSIVE, RECORDS OF RIVERSIDE COUNTY, STATE OF CALIFORNIA.
A-3
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EXHIBIT B
Community Facilities District Financing Provisions
1.1 Formation of New CFD
(a) Background. Owner desires to form a New CFD (as defined below) to develop over time approximately two hundred twenty-eight acres of the Property as approximately 981 single-family residential lots (the "CFD Property"), and to finance various infrastructure improvements through such New CFD.
(b) Formation. City shall, upon the petition of the Owner described below, take the steps to establish a community facilities district ("New CFD") pursuant to the Mello - Roos Community Facilities Act of 1982, as amended (the "CFD Act") in the manner described in this Section 1.1.
(c) Petition. At any time, Owner may petition City under the CFD Act to establish the New CFD over the CFD Property. In its petition, Owner may include proposed specifications for the New CFD, including special tax rates ("Special Taxes"), New CFD boundaries and any proposed tax zones, the total tax burden that will result from the imposition of the special taxes (subject to the 2.00% Limitation (as defined below) for residential units), and other provisions. Owner's proposed specifications will be based on Owner's development plans, market analysis, and required preferences, but in all cases will be subject to the Development Agreement and the CFD Goals (as defined herein). The City shall have the right to review and object to any market analysis or home price assumptions it believes to be unreasonable. The City reserves the right to hire an independent pricing analyst to review and verify the Owner's projected pricing. The City's obligation to form the New CFD shall be subject to the provisions of the Development Agreement, the CFD Goals, and the reasonable exercise of the City Council's legislative discretion.
(d) Commencement of Formation of New CFD. Within ninety (90) days following City's receipt of a petition and a deposit of $50,000.00, the City Council shall adopt a resolution of intention to form the New CFD consistent with the petition. The New CFD shall have a rate and method of apportionment of special tax (the "RMA"), authorization to issue one or more series of special tax bonds ("CFD Bonds"), and an appropriations limit. A notice of special tax lien required by Section 3114.5 of the California Streets and Highways Code (the "Notice of Special Tax Lien") shall be recorded against each taxable parcel within the New CFD upon completion of formation of the New CFD.
(e) Authorized Financing. The New CFD shall be authorized to finance both of the following:
(i) Refunding of all outstanding bonds of Improvement Area No. 5 of City of Beaumont Community Facilities District No. 93-1 that encumber the CFD Property (the "Refunding"); and
B-1
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(ii) The Facilities (as defined in Section 1.2 below), irrespective of the geographic location of the improvements financed.
(f) Service Special Taxes. The New CFD shall include special taxes to pay for police, fire, and paramedics and other emergency services ("Public Safety Services") of $419 annually escalating by the greater of 5% or CPI. Such special tax rate shall escalate commencing in Fiscal Year 2018.
(g) Joint Community Facilities Agreements. Under the CFD Act, City may be required to enter into one or more joint community facilities agreements with other governmental entities that will own or operate any of the Facilities to be financed by the New CFD. The City and Owner agree that they will take all reasonable steps to procure the authorization and execution of any required joint community facilities agreements with other governmental entities before the issuance of any CFD Bonds that will finance the construction or acquisition of Facilities that will be owned or operated by such other governmental entities.
Owner acknowledges and agrees that the ability of the City to enter into joint community facilities agreements is subject to the discretion of the other governmental entities.
1.2 Scope of CFD-Financed Costs
(a) Facilities. The New CFD shall be authorized to finance all or any portion of the items described in Section 53313.5 of the CFD Act, in each case to the extent agreed upon by the City and Owner at the time of formation of the New CFD (collectively, the "Facilities"). Under no circumstances shall the New CFD be obligated to finance capital improvement fees in lieu of facilities.
1.3 Parameters of CFD Formation
(a) Cooperation. Owner and City agree to cooperate reasonably in developing the RMA to be used in the New CFD. Owner and City will each use good -faith reasonable efforts at all times to furnish timely to the other, or to obtain and then furnish to the other, any information necessary to develop the RMA, such as Owner's plans for the types, sizes, numbers, and timing for construction of buildings within the New CFD. (b) Maximum Special Tax Rates for Developed Property. The RMA for the New CFD will specify the maximum Special Tax rates for "Developed Property" (property for which a building permit has been issued) within the New CFD (the "Maximum Special Tax Rates"). The Maximum Special Tax Rates for Developed Property may vary based on sizes, densities, types of buildings to be constructed, and other relevant factors. The RMA will establish Maximum Special Tax Rates assuming that any CFD Bonds issued will have a minimum debt service coverage -ratio of one hundred ten percent (110%) plus administrative expenses of the City. The Maximum Special Tax Rates shall include a special tax to pay for Facilities (a "Facilities Special Tax") and a special tax to pay for Public Safety Services. (c) Total Tax Obligation. The Maximum Special Tax Rates which shall include the special taxes levied for Facilities and Public Safety Services will be set so that the Total Tax Obligation (as defined below) on any residential unit within the New CFD at the time of formation of the New CFD will not exceed two percent (2.00%) of the anticipated sales price B-2
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of that residential unit (the "2.00% Limitation"). The anticipated sales price of a residential unit may be based on reasonable projections of value over time or at the City's sole discretion a market price study prepared by an independent consultant and paid for by the Owner. (i) For purposes of this Section 1.3, the term "Total Tax Obligation" means, with respect to a residential unit at the time of calculation, the sum of:
(a) the ad valorem taxes actually levied or projected to be levied if the residential unit were developed at the time of calculation; (b) the Maximum Special Tax Rates levied or projected to be levied if the residential unit were developed at the time of calculation; and (c) all other special taxes (based on assigned special tax rates) or assessments collected on the secured tax roll by the County and secured by a lien on the residential unit levied or projected to be levied if the residential unit was developed at the time of calculation. Homeowners' association fees shall not be included in the calculation of the Total Tax Obligation. (d) No Escalation of Facilities Special Tax Rates. The Special Tax Rates for Facilities shall not escalate. The Special Tax Rates for Public Safety Services shall escalate as provided in Section 1.1(f) hereof.
(e) Use of Special Taxes for Direct Payment of Facilities. Owner and City agree that the RMA and the New CFD formation proceedings shall provide that Facilities may be financed directly from Facilities Special Taxes prior to the issuance of the first series of CFD Bonds but there shall be no obligation of the New CFD to levy Facilities Special Taxes directly for Facilities after the issuance of the first series of Bonds. The RMA will contain a provision that levies and apportions the Facilities Special Taxes at the maximum amount on all parcels of Developed Property regardless of debt service until the first series of CFD Bonds are issued, and all Facilities Special Taxes collected that remain after paying administrative expenses shall be used to finance Facilities.
(f) Prepayment. The RMA will include provisions allowing an Owner within an Improvement Area that is not in default of its obligation to prepay the Owner's Special Tax obligation related to the Facilities. The Special Taxes related to Public Safety Services shall not be subject to prepayment. Prepaid Special Taxes will be placed in a segregated account in accordance with the applicable Indenture (defined below). The RMA and the Indenture will specify the use of prepaid Special Taxes. Before CFD Bonds are issued, all prepayment amounts other than those required for administrative expenses shall be used to finance Facilities ("Prepaid Special Taxes").
1.4 Issuance of CFD Bonds
(a) Issuance. City, on behalf of the New CFD, intends to issue one or more series of CFD Bonds secured by the maximum Facilities Special Tax in the RMA for purposes of financing the Facilities. Provided that at least twenty percent (20%) of the residential units anticipated for the CFD Property have been closed to homeowners, the Owner may submit a written request that City issue CFD Bonds, specifying requested issuance dates, amounts, and main financing terms. Following Owner's request, Owner and City will meet with City's public financing consultants to determine reasonable and appropriate issuance dates, amounts, and main financing terms that are consistent with the Development Agreement and the CFD B-3
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Goals. CFD Bonds shall be issued pursuant to an indenture, trust agreement, or fiscal agent agreement (however denominated, an "Indenture") between the New CFD and a fiscal agent or trustee (however denominated, the "Fiscal Agent"). Owner acknowledges that the City is currently under investigation by the United States Securities and Exchange Commission and may not have access to the public capital markets to issue CFD Bonds in accordance with this Section 1.4 until such investigation is concluded, and such delay shall in no way constitute a default hereunder.
(b) Term. Each issue of CFD Bonds will have a term of not less than thirty (30) years and not more than thirty-five (35) years unless Owner and City agree otherwise; provided that in no event shall the term of the CFD Bonds exceed the term of the Special Tax for Facilities.
(c) For each series of CFD Bonds, the underwriter's discount shall not exceed 1% of the principal amount of such series of CFD Bonds, and the costs of issuance and incidentals for each series of CFD Bonds shall be not in excess of $300,000.
1.5 CFD Goals
(a) CFD Goals. Under Section 53312.7 of the CFD Act, prior to formation of the New CFD, the City must consider and adopt local goals and policies concerning the New CFD (the "CFD Goals"). To the extent that CFD Goals have not previously been adopted, the City Council will, on or before initiating foiivation of the New CFD, adopt CFD Goals consistent with this Section 1.5. The CFD Goals shall apply to the CFD Property in the New CFD on the date of formation. Future amendments to the CFD Goals shall not be applicable to the New CFD or the CFD Property unless required under the CFD Act or other controlling State or federal law. In particular, the CFD Goals include the following provisions, each of which the Owner is relying on:
(i) Value -to -Lien Ratio. The appraised or assessed value -to -lien ratio required for each CFD Bond issue (including all relevant overlapping liens) will be three to one (3:1) or such higher ratio that is (A) required by bond market conditions at the time of bond issuance, or (B) required by the CFD Act.
(ii) Coverage Ratio. An issue of CFD Bonds will not have a debt service coverage -ratio (including all overlapping and outstanding CFD Bonds) of less than one hundred ten percent (110%) plus reasonable administrative expenses, unless otherwise agreed to by the Owner and the City.
(iii) Letter of Credit. If the City reasonably determines that a letter of credit is required in order to issue the CFD Bonds, each landowner that owns property responsible for 20% or more of the Special Taxes for Facilities (a "Large Landowner") shall provide a letter of credit in a stated amount not in excess of the Special Taxes expected to be levied on the portion of the CFD Property then -owned by a Large Landowner in the first year of the term of the CFD Bonds. Each letter of credit shall be reduced as portions of the CFD Property are sold to homeowners and may be terminated when the property owned by the Large B-4
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Landowner is no longer responsible for 20% or more of the Special Taxes for Facilities. Under no circumstances shall a homeowner or a model home financing company be required to provide a letter of credit.
1.6 Miscellaneous CFD Provisions
(a) Reserve Fund Earnings. The Indenture for each issue of CFD Bonds will provide that earnings on any reserve fund that are not then needed to replenish the reserve fund to the reserve requirement will be transferred to: (i) the project fund for the CFD Bonds for allowed uses until it is closed in accordance with the Indenture; then (ii) the debt service fund held by the Fiscal Agent under the Indenture. Notwithstanding the forgoing, if the Project Fund has not closed within three (3) years of the CFD Bond Issuance the City may at its sole discretion direct the reserve fund earnings to the debt service fund. (b) Authorization of Reimbursements. City will take all actions necessary to satisfy section 53314.9 of the Government Code or any similar statute subsequently enacted to use CFD Bond proceeds and Facilities Special Taxes to reimburse Owner for: (i) New CFD foiiiiation and CFD Bond issuance deposits; and (ii) advance funding of Facilities or costs. (c) Acquisition Agreement. Contemporaneously with the formation of the New CFD, Owner and City will execute an acquisition and funding agreement (the "Acquisition Agreement") that will apply to the acquisition and construction of the Facilities for the New CFD. The Acquisition Agreements shall contain an acknowledgment by the City and Owner as to the following:
(i) Owner may be constructing Facilities before CFD Bond proceeds, Facilities Special Taxes, and Prepaid Special Taxes (herein, "Funding Sources") that will be used to acquire them are available;
(ii) The City will inspect Facilities and process payment requests even if Funding Sources for the amount of pending payment requests are not then sufficient to satisfy them in full;
(iii) Facilities may be conveyed to and accepted by the City or other governmental entity before the applicable payment requests are paid in full; (iv) If the City or other governmental entity accepts Facilities before the applicable payment requests are paid in full, the unpaid balance will be paid when sufficient Funding Sources become available, and the Acquisition Agreement will provide that the applicable payment requests for Facilities accepted by the City or other governmental entity may be paid: (A) in any number of installments as Funding Sources become available; and (B) irrespective of the length of time payment is deferred; (v) Owner's conveyance or dedication of Facilities to the City or other governmental entity before the availability of Funding Sources to acquire the Facilities is not a dedication or gift, or a waiver of Owner's right to payment of Facilities under the Development Agreement or the Acquisition Agreement; and B-5
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(vi) City will have no obligation to acquire the Facilities or reimburse Owner with any moneys other than the Funding Sources.
(d) the Owner acknowledges that in accordance with Section 53313.5 of the CFD Act, that the CFD may only finance the purchase of Facilities completed after the adoption of the resolution of the formation if the facility was constructed as if it had been constructed under the direction and supervision, or under the authority of the local agency that will own or operate the facility, and the Acquisition Agreement will contain the terns necessary to satisfy this condition.
(e) Initial and Continuing Disclosure. In connection with each issue of CFD Bonds, the Owner shall provide customary disclosure about the Owner and its development and financing plans including opinions of counsel and certificates and representations as may be reasonably and customarily required by the City and/or the underwriter of the CFD Bonds. In addition, Owner shall comply with all of its obligations under any continuing disclosure agreement it executes in connection with the offering and sale of any CFD Bonds. Owner acknowledges that a condition to the issuance of any CFD Bonds may be Owner's execution of a continuing disclosure agreement.
(f) No Other Land -Secured Financings. Other than the New CFD and any community facilities district initiated by the City as the result of a qualified petition of registered voters residing in the New CFD, City shall not form any additional community facilities district over any portion of the property in the Project without Owner's written consent which may be given in its sole discretion. The City shall not form any additional land -secured financing district over the property in the New CFD unless the property in the New CFD is found to have special benefit from the improvements being financed; provided, however, under no circumstances may an additional land -secured financing district be formed over the property in the New CFD to pay for any part of the costs of the Potrero Interchange improvements (it being understood and agreed by the City and the Owner that the Property shall have no obligation to fund such Potrero Interchange improvements). Notwithstanding that any such additional land -secured financing district qualifies under the preceding sentence, the Owner reserves the right to oppose or vote against any such formation or levy. (g) Prevailing Wages. As a condition of the acquisition of Facilities financed through the New CFD, the Owner shall require, and the specifications and bid and contract documents shall require, all contractors engaged to perform work on the Facilities to pay prevailing wages and to otherwise comply with applicable provisions of the California Labor Code.
(h) Disclosure to Property Owners. Owner agrees to provide, or cause to be provided, the disclosure to purchasers of property in the New CFD in the manner and at the time required by the CFD Act.
(i) Attorneys' and Consultants' Fees. Owner agrees to enter into a deposit agreement whereby it advances the City's attorneys' and consultants' fees associated with implementing the New CFD. The deposit agreement shall provide that any costs so advanced by the Owner may be reimbursed to the Owner out of the proceeds of the CFD Bonds.
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EXHIBIT C
HOA Maintenance Obligations
1. Landscape and Tree Maintenance: Lot BB of Parcel Map 34880; Lots 68 and 69 of Tract No. 27971-1; Lots 58 and 59 of Tract No. 27971-2; Lots 83 and 84 of Tract No. 27971-3; Lot 73 of Tract No. 27971-4; Lots 125 through 127, inclusive, of Tract No. 27971-5; Lots 71 and 72 of Tract No. 27971-6; Lots 60 through 63, inclusive, of Tract No. 27971-7; Lots 81 through 83, inclusive, of Tract No. 27971-8; Lots 101 and 102 of Tract No. 27971-9; Lots 152 and 153 of Tract No. 27971-10; Lots 59 through 66, inclusive, of Tract No. 27971-11; and Lots 62 through 67, inclusive, of Tract No. 27971-12
2. Community Walls and Monuments
3. Street Lights
4. Street Sweeping and Maintenance: Lots A through Z, inclusive; lots AA and CC of Parcel Map 34880; lettered lots A through F, inclusive, of Tract No. 27971-1; lettered lots A through G, inclusive, of Tract No. 27971-2; lettered lots A through F, inclusive, of Tract No. 27971-3; lettered lots A Through F, inclusive, of Tract No. 27971-4; lettered lots A through J, inclusive, of Tract No. 27971-5; lettered lots A through E, inclusive, of Tract No. 27971-6; lettered lots A through E, inclusive, of tract No. 27971-7; lettered lots A through G, inclusive, of Tract No. 27971-8; lettered lots A through F, inclusive, of Tract No. 27971-9; lettered lots A through J, inclusive, of Tract No. 27971-10; A through D, inclusive, of Tract No. 27971-11; lettered lots A through E, inclusive, of Tract No. 27971-12
5. Parks Maintenance: Parcels 14, 19, 20, 21, 22, 23 of Parcel Map 34880
6. Mitigation Open Space (to be transferred to 3rd party entity): Parcels 15 and 17 of Parcel Map 34880
7. Trails Maintenance: Parcels 14, 19, 21 and 23 and Lot BB of Parcel Map 34880
8. Graffiti Abatement
9. Drainage Improvements: Parcels 16 and 18 of Parcel Map 34880
10. Water Well: Parcel 14 of Parcel Map 34880
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RECORDING REQUESTED BY
AND WHEN RECORDED MAIL
T0:
Go City Clerk
O City of Beaumont
(.7) P. O. Box 158
Beaumont, Ca 92223
HEARTLAND BEAUMONT CALIFORNIA L.T.D.
DEVELOPMENT AGREEMENT
GO
This Development Agreement (hereinafter this "Agreement") is entered into effective CT on the date it is recorded with the Riverside County Recorder (hereinafter the "Effective Date") by and between the City of Beaumont (hereinafter the "City"), y"), and Heartland C, Beaumont California L.T.D. (hereinafter the "Owner"). This Agreement is entered into with reference to the following Recitals:
RECITALS
A. In order to strengthen the public planning process, to encourage private participation in comprehensive planning, and to reduce the economic risks of development, the Legislature of the State of California has adopted sections 65864 through 65869.5 of the Government code which authorize the City and the Owner to enter into this AL regiment for purposes of facilitating the development of the property as described herein.
B. The City, by adopting Resolution No. 1987-34, has adopted rules and regulations establishing procedures and requirements for the consideration of this Agreement.
C. This Agreement is also entered into with reference to and pursuant to the general municipal powers of the City as established by case law made by the courts of the State of California, including, without limitation, such law as has been established in the cases of Morrison Homes Corporation v. City of Pleasanton (1976) 58 Cal.App.3d 724 and Carruth v. City of Madera (1965) 233 Cal.App.2d 688.
D. Owner owns in fee that certain unimproved real property consisting of approximately four hundred twenty-nine (429) acres located in the City of Beaumont, County of Riverside, State of California, which property is more fully described and shown on Exhibit A attached hereto and incorporated by reference herein (hereinafter "Property").
E. Owner has heretofore indicated its desire to develop the Property in the manner provided for in this Agreement within the City. The City has heretofore indicated its desire to mitigate public facility impacts related to the development of the Project as provided for in this Agreement. To accomplish their mutual intent, the Owner and the City have heretofore taken the actions described in the Recitals set forth herein.
F. Prior to February 8, 1993, the City prepared the City of Beaumont General Plan and Environmental Impact Report (rcrr.cctively the "General Plan" and "General Plan EIR"). On February 8, 1993, the City Ck it of the City, after duly complying with the California Environmental Quality Act and all statutes, ordinances and resolutions applicable to the adoption of the General Plan and certification of the General Plan EIR; adopted its Resolution No. 1993-04 certifying that the EIR had been completed in compliance with the California Environmental Quality Act and adopted its Resolution No. 1993-05 approving the General Plan.
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G. On June 29, 1993, the City Council approved the City of Beaumont Community Facilities District No. 93-1 ("CFD No. 93-1" or the "CFD") as part of the City Comprehensive Public Facilities Financing Program (the "City Program") pursuant to which the City determined that it was appropriate to provide for certain public facilities and services in order to implement the General Plan and, further, that such facilities and services could best be facilitated through the City issuing bonds secured by liens on real property to be developed within the City. City and Owner determined that it is in the best interests of the City and Owner to participate in the CFD and, as part of such participation, to cooperate in the issuance of the bonds and the placing of a lien upon the Property to secure repayment of a portion of the bonded indebtedness created as a result of the establishment of the CFD.
H. This Agreement is consistent with the General Plan.
I . Prior to adopting this Agreement, City and Owner complied with all procedures and requirements of the California Environmental Quality Act with respect to the Project and the Agreement.
J. The terms and conditions of this Agreement have been extensively reviewed by the City, its Planning Commission and its City Council and have been found to be fair, just and reasonable, to be in the best interest of the citizens of the City, and to serve public health, safety, and welfare, and the City Council has further found that the Development of the Property in accordance with the General Plan, the General Plan EIR, the Development Plan, the EIR and this Agreement will provide substantial benefits to the City with respect to implementing City policies and goals which promote community, economic, public infrastructure, and high quality, managed development.
K. Owner has (i) advanced funds for CFD No. 93-1 public facility planning, design, environmental compliance and CFD No. 93-1 formation and issuance costs, (ii) incurred and will in the future incur substantial costs in order to develop the Property in accordance with this Agreement, and Owner would not incur such future costs without obtaining the legally enforceable assurances with respect to the Development of the Property as contained in the Development Plan, the CFD No. 93-1 formation documents, the Bond Sale Limitation Agreement and this Agreement. In addition, by participating in CFD No. 93- 1, Owner has incurred and will incur in the future substantial costs in excess of the requirements generally applicable to Development of the Property such as that contemplated by this Agreement in order to insure vesting of legal rights related to Development of the Property in accordance with this Agreement.
L. Prior to entering into this Agreement, City complied with all legal requirements for notice, public hearings, findings, votes, and other procedural matters necessary as a condition precedent to entering into this Agreement with Owner.
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COVENANTS
NOW, THEREFORE, in consideration of the above recitals and of the mutual covenants hereinafter contained and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties agree as follows:
DEFINITIONS AND EXHIBITS.
1.1 Definitions. The following terms when used in this Agreement shall be defined as follows:
1.1.1 "Agreement" means this Development Agreement.
1.1.2 "Bond Sale Limitation Agreement" means the agreement by and between the City and the Owner relating to the timing and amount of bonds to be issued under the CFD No. 93-1 proceedings.
1.1.3 "BSFF" means the $500.00 component of the per EDU fee for City facility and service mitigation entitled the City Basic Services and Facilities Fee adopted pursuant to Ordinance No. 506 of the City.
1.1.4 "CFD" or "CFD No. 93-1" means Community Facilities District No. 93-1 of the City of Beaumont.
1.1.5 "City" means the City of Beaumont, a municipality duly incorporated under the laws of the State of California.
1.1.6 "City Program" means the City Comprehensive Public Facilities Financing Program which includes policies and procedures related to public infrastructure financing which are or will be adopted and/or implemented on a City-wide and/or area of benefit basis.
1.1.7 "Completion Date" means the date the City wastewater engineer certifies completion of construction of the City Stage I Wastewater Treatment Plant Expansion partially funded by the CFD.
1.1.8 "Critical Facilities and Services" means facilities and services of the City relating to law enforcement, fire protection, transportation, wastewater treatment and parks, recreation and open space.
1.1.9 "Development" means the improvement of the Property for the purposes of completing the structures, improvements and facilities comprising the Project including, but not limited to: grading; the construction of infrastructure and public facilities related to the Project whether located within or outside; the Property; the construction of B M THRT.7
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buildings and structures: and the installation of landscaping. "Development" does not include the maintenance. repair, reconstruction or redevelopment of any building, structure, improvement or facility after the construction and completion thereof.
1.1.10 "Development Approvals" means all permits and other entitlements for use subject to approval or issuance by City in connection with Development of the Property including:
plans;
approvals;
(a) General Plan designations and amendments:
(b) Specific plans and specific plan amendments;
(c) Zoning;
(d) Tentative and final subdivision and parcel maps;
(e) Conditional use permits, public use permits and plot (f) Planned unit development and planned development
Variances;
Lot line adjustments;
Grading and building permits; and
Occupancy permits
1.1.11 "Development Exaction" means any requirements of the City in connection with or pursuant to any Land Use Regulation or Development Approval for the dedication of land, the construction or improvement of public facilities, or the payment of fees adopted by action of the City Council in order to lessen, offset, mitigate or compensate for the impacts of development on the environment or other public interests; excepting therefrom development exactions by agencies other than the City applied through the Land Use Regulations or Development Approvals over which the City has no direct control, and Development Exactions with respect to sewer connection fees.
1.1.12 "Development Plan" means the Existing Development Approvals and the Existing Land Use Regulations applicable to Development of the Property.
1.1.13 "Effective Date" means the date this Agreement is recorded with the County Recorder.
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1.1.14 "Existing Development Approvals" means all Development Approvals approved or issued prior to the Effective Date. Existing Development Approvals includes the Development Approvals identified in Recital G herein and those incorporated herein as Exhibit "C," together with all other Development Approvals which are a matter of public record on the Effective Date.
1.1.15 "Existing Land Use Regulations" means all Land Use Regulations in effect on the Effective Date. Existing Land Use Regulations includes the Land Use Regulations incorporated herein as Exhibit "D" and all other Land Use Regulations which are a matter of public record on the Effective Date.
1.1.16 "Land Use Regulations" means all ordinances, resolutions, codes, rules, regulations and official policies of City governing the Development and use of land, including, without limitation, the permitted use of land, the density or intensity of use, subdivision requirements, the maximum height and size of proposed buildings, provisions for reservation or dedication of land for public purposes, and the design, improvement and construction standards and specifications applicable to the development of the Property. The term "Land Use Regulations" does not include any City ordinance, resolution, code, rule, regulation or official policy, governing:
(a) The conduct of businesses, professions, and occupations; (b) Taxes and assessments;
(c) The control and abatement of nuisances;
(d) The granting of encroachment permits, extensions of time and the conveyance of rights and interests which provide for the use of or the entry upon public property;
(e) The exercise of the power of eminent domain.
1.1.17 "Owner" means Heartland Beaumont California L.T.D. and its successors in interest to all or any part of the Property.
1.1.18 "Mortgagee" means a mortgagee of a mortgage, a beneficiary under a deed of trust or any other security -device lender and their successors and assigns.
1.1.19 "Project" means the Development of the Property contemplated by the Development Plan as such Plan may be further defined, enhanced, or modified pursuant to the provisions of this Agreement.
1.1.20 "Property" means the real property described on Exhibit "A" and shown on Exhibit "B" to this Agreement.
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1.1.21 "Reservations of Authority" means the rights and authority excepted from the assurances and rights provided to Owner under this Agreement and reserved to City under Subsection 3.7.1 of this Agreement.
1.1.22 "Subsequent Development Approvals" means all Development Approvals required or requested by Owner and approved by City subsequent to the Effective Date in connection with Development of the Property.
1.1.23 "Subsequent Development Exaction" means all Development Exactions applied to the Development Plan following the Effective Date of this Agreement.
1.1.24 "Subsequent Land Use Regulations" means any Land Use Regulations adopted and effective after the Effective Date of this Agreement.
L2 Exhibits. The following documents are attached to, and by this reference made a part of, this Agreement:
Exhibit "A" -- Legal Description of the Property.
Exhibit "B" -- Map showing Property and its location.
Exhibit "C" -- Existing Development Approvals.
Exhibit "D" -- Existing Land Use Regulations.
Exhibit "E" -- CFD Resolutions of Formation.
Exhibit "F" -- Sewer Service Facilities Construction Schedule.
GENERAL PROVISIONS.
2.1 Binding Effect of Agreement. The Property is hereby made subject to this Agreement. Development of the Property is hereby authorized and shall be carried out only in accordance with the terms of this Agreement.
2.2 Ownership of Property. Owner represents and covenants that it is the owner of the fee simple title to the Property or a portion thereof.
2.3 Term. The term of this Agreement shall commence on the Effective Date and shall continue for a period of twenty five (25) years thereafter unless this term is modified or extended pursuant to the provisions of this Agreement.
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2.4 Assignment.
2.4.1 Right to Assign. Owner shall have the right to sell, transfer, or assign the Property in whole or in part at any time during the term of this Agreement; provided. however, that any such sale, transfer or assignment shall be made only with notice to the City and shall include the assignment and assumption of the rights, duties and obligations arising under or from this Agreement and be made in strict compliance with the following conditions precedent:
(a) No sale. transfer or assignment of any right or interest under this Agreement shall be made unless made together with the sale, transfer or assignment of all or part of the Property.
(b) Concurrent with any such sale, transfer or assignment, or within thirty (30) business days thereafter, Owner shall notify the City in writing, of such sale, transfer or assignment and sha__ provice tae City wita an executed reeaseagreement, in a . orm acceptable to the City, by the purchaser, transferee or assignee and providing interest so
d, transferred or assigned.
(c) In the event there is a transfer of a portion of the Property, then the Owner and the transferee may elect by written agreement to allocate between themselves fee credits available pursuant to Section 4.7, sewer connection rights pursuant to Section 4.2.5, or other benefits available to the Owner under this Agreement, in any manner they see fit and such allocations shall be as set forth in the written agreement between the Owner and the transferee, a copy of which agreement shall be filed with the City. In the event the Owner and the transferee have not made a written allocation of such benefits, then such benefits of the Agreement shall be allocated between the Owner and the transferee on a prorata (by area of land) basis as determined in the sole and reasonable discretion of the City.
Any sale, transfer or assignment not made in strict compliance with the foregoing conditions shall constitute a default by the Owner under this Agreement.
Notwithstanding the failure of any purchaser, transferee or assignee to execute the agreement required by Paragraph (b) of this Subsection 2.4.1, the rights, duties and obligations of this Agreement shall be binding upon such purchaser, transferee or assignee until and unless such agreement is executed.
A sale, transfer, or assignment of the Property, in whole or in part, shall not, in and of itself, give City the right to apply subsequent Development Exactions or Subsequent Land Use Regulations upon the Project.
2.4.2 Release of Transferring Owner. Notwithstanding any sale, transfer or assignment, a transferring Owner shall continue to be obligated under this BMTHFT.7
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Agreement unless such transferring Owner applies for a release request and is given a release in writing by City, which release shall be provided by City upon the full satisfaction by such transferring Owner of the following conditions:
(a) Owner no longer has a legal or equitable interest in the Property (or portion of the Property) sold, transferred or assigned. (b) Owner has provided City with the release request notice and executed release agreement required under Paragraph (b) of Subsection 2.4.1.
2.4.3 Subsecuent Assignment. Any subsequent sale, transfer or assignment after an initial sale, transfer or assignment shall be made only in accordance with and subject to the terms and conditions of this Section.
2.4.4 Partial Release of Purchaser, Transferee or Assignee of School Lot. A purchaser, transferee or assignee of a lot, which has been subdivided as provided for in the Development Plan and for which a school lot has been approved pursuant to the Development Plan. may submit a release request, in writing, to the City to release, concurrent.y with the issuance of , said lot from the rights, duties and obligations under this Agreement. Within ninety (90) days of such request, the City shall review, and if the above conditions are satisfied shall approve the request for release and notify the purchaser, transferee or assignee in writing thereof. The City shall not unreasonably withhold its approval of such a release.
2.4.5 Termination of Agreement With Respect to Individual Lots Upon Sale to Public and Completion of Construction. The provisions of Subsection 2.4.1 shall not apply to the sale or lease (for a period longer than one year) of any lot which has been subdivided and is individually (and not in "bulk") sold or leased to a member of the public or other ultimate user. Notwithstanding any other provisions of this Agreement, this Agreement shall terminate with respect to any lot and such lot shall be released and no longer be subject to this Agreement without the execution or recordation of any further document upon satisfaction of both of the following conditions:
(a) The lot has been subdivided and individually (and not in "bulk") sold or leased (for a period longer than one year) to a member of the public or other ultimate user.
(b) A Certificate of Occupancy has been issued for a building on the lot in accordance with the Development Plan and this Agreement.
2.5 Amendment or Cancellation of Agreement. This Agreement may be amended or canceled in whole or in part only by written consent of the parties in the manner provided for in Government Code Section 65868. This provision shall not limit any remedy of City or Owner as provided by this Agreement.
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2.6 Termination. This Agreement shall be deemed terminated and of no further effect upon the occurrence of any of the following events:
Section 2.3.
(a) Expiration of the stated term of this Agreement as set forth in (b) Entry of a final judgment setting aside, voiding or annulling the adoption of the ordinance approving this Agreement.
(c) Completion of the Project in accordance with the terms of this Agreement including issuance of all required occupancy permits and acceptance by the City and applicable public agencies of all required dedications and public improvements.
2.7 Notices
(a) As used in this Agreement. "notice" includes, but is not limited to, the communication of notice, request, demand, approval, statement, report, acceptance, consent, waiver, appointment or other communication required or permitted hereunder. (b) A11 notices shall be in writing and shall be considered given either: (i) when delivered in person to the recipient named below; or (ii) on the date of delivery shown on the return receipt, after deposit in the United States mail in a sealed envelope as either registered or certified mail with return receipt requested, and postage and postal charges prepaid, and addressed to the recipient named below; or (iii) on the date of delivery shown in the records of the telegraph company after transmission by telegraph to the recipient named below. All notices shall be addressed as follows:
If to City:
and
If to Owner:
City Clerk
City of Beaumont
550 East Sixth Street
Beaumont, CA 92223-0158
City Manager
City of Beaumont
550 East Sixth Street
Beaumont, CA 92223-0158
Stephen P. Walker, III
Heartland Beaumont California L.T.D.
701 Fifth Avenue c /o
Seattle, WA 98104 � 6 6O
/1e .7 4 e7
Col ke 6' c} Cc,' TCr
(c) Either party may, by notice given at any time, require subsequent notices to be given to another person or entity, whether a party or an officer or B MTHRT. 7
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representative of a party, or to a different address, or both. Notices given before actual receipt of notice of change shall not be invalidated by the change.
3. DEVELOPMENT OF THE PROPERTY.
3.1 Rights to Develop. Subject to the terms of this Agreement, including the Reservations of Authority, the Owner shall have a vested right to develop the Property in accordance with, and to the extent of, the Development Plan. Development of the Project shall be subject to all Subsequent Development Approvals and, subsequent to the date specified in Subsection 3.7.1(d), Subsequent Development Exactions required by the City to complete the Project as set forth in the Development Plan and this Agreement. The City agrees to process in good faith the balance of approvals needed to develop the Property in accordance with the Development Plan. Once approved, all Subsequent Development Approvals shall be deemed part of the Development Plan and subject to the vested rights set forth herein. Except as otherwise provided in this Agreement, the permitted uses of the Property, the density and intensity of use, the maximum height and size of proposed buildings, and provisions for reservation and dedication of land for public purposes shall be those set forth in the Development Plan. The Development Plan entitles the Owner to develop 1,291 single-family detached units on the Property. The exact mixture of each residential product type (single-family detached, single-family attached, and multi -family apartments) proposed in relation to Subsequent Development Approvals shall be at the sole election of the Owner, subject only to the limits set forth in the Development Plan. The Development Plan also entitles the Owner to develop retail commercial and/or industrial buildings, and such other uses as have been approved within the Development Plan.
3.2 Effect of Agreement on Land Use Regulations. Except as otherwise provided under the terms of this Agreement, including the Reservations of Authority: the rules, regulations and official policies governing permitted uses of the Property, the density and intensity of use of the Property, the maximum height and size of proposed buildings, and the design, improvement and construction standards and specifications applicable to development of the Property shall be the Existing Land Use Regulations and the Development Plan. In connection with any Subsequent Development Approval, the City shall exercise its discretion in accordance with the Development Plan, and as provided by this Agreement including, but not limited to, the Reservations of Authority. The City shall accept for processing, review and action all applications for Subsequent Development Approvals, and such applications shall be processed in the normal manner for processing such matters.
3.3 Effect of Agreement on General Plan. The City and the Owner acknowledge that the feasibility of the Development Plan and the value of the Property is dependent in part upon the City permitting the Development of the Property in accordance with the General Plan as set forth in the Existing Land Use Regulations and in accordance with the City Program. Therefore, the City shall not amend the General Plan in any mariner which would materially and adversely impact the Owner's Development or use of the Property as provided in the Development Plan.
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3.4 Timing of Development. The parties acknowledge that Owner cannot at this time predict when or the rate at which phases of the Property will be developed. Such decisions depend upon numerous factors which are not within the control of the Owner, such as market conditions. interest rates, absorption, completion and other similar factors. Since the California Supreme Court held in Pardee Construction Co. v. City of Camarillo (1984) 37 Ca1.3d 465, that the failure of the parties therein to provide for the timing of development resulted in a later adopted initiative restricting the time of development to prevail over such parties' agreement; it is the parties' intent to cure that deficiency by acknowledging and providing that the Owner shall have the right to develop the Property in such order and at such rate and at such times as the Owner deems appropriate within the exercise of its subjective business judgment, subject only to any timing or phasing requirements set forth in the Development Plan or the Phasing Plan set forth in Section 3.5.
3.5 Phasing Plan. Development of the Property shall be subject to all timing and phasing requirements established by the Development Plan.
3.6 Changes and Amendments. The parties acknowledge that refinement and further Development of the Project will require Subsequent Development Approvals and may demonstrate that changes are appropriate and mutually desirable in the Existing Development Approvals. In the event the Owner finds that a change in the Existing Development Approvals is necessary or appropriate, the Owner shall apply for Subsequent Development Approvals to effectuate such change and the City shall process and act on such application in accordance with the Existing Land Use Regulations, except as otherwise provided by this Agreement including the Reservations of Authority. If approved, any such change in the Existing Development Approvals shall be incorporated herein as an addendum to Exhibit "C", and may be further changed from time to time as provided in this Section.
Unless otherwise required by law, as determined in the City's reasonable sole discretion, a change in the Existing Development Approvals shall be deemed "minor," shall not require a public hearing, and not require an amendment to this Agreement, and shall be made administratively by the City at the request of the Owner, provided such change does not:
(a) Alter the permitted uses of the Property as a whole; or, (b) Increase the density or intensity of use of the Property as a whole; or,
(c) Increase the maximum height and size of permitted buildings; or, (d) Delete a requirement for the reservation or dedication of land for public purposes within the Property as a whole; or,
(e) Constitute a project requiring an environmental impact report pursuant to Section 21166 of the Public Resources Code.
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3.7 Reservations of Authority.
3.7.1 Limitations. Reservations and Exceptions. Notwithstanding any other provision of this Agreement, the following Subsequent Land Use Regulations, and no others, shall apply to the Development of the Property. (a) Processing fees and charges reasonably imposed by City to cover the reasonable estimated actual costs to the City of processing applications for Development Approvals or for monitoring compliance with any Development Approvals granted or issued provided that such fees and charges are applied uniformly or on an area of benefit basis to development in the City.
(b) Procedural regulations relating to hearing bodies,
petitions, applications, notices, findings, records, hearings, reports, recommendations, appeals and any other matter of procedure.
(c) Regulations and policies governing construction
standards. extensions of time and specifications including, without limitation, the City's Building Code, Plumbing code, Mechanical Code, Electrical Code, Fire Code and Grading Code.
(d) Subsequent Development Exactions; provided, however. that such exactions shall be only those for Critical Facilities and Services which are imposed on (1) residential development after the earlier of (a) ten (10) years from the Effective Date or (b) issuance of two hundred fifty nine (259) residential building permits for the Property, or any portion thereof, and, (2) non-residential development within the Project after twelve (12) years from the Completion Date; and, that no such exactions shall be applicable to the Development of the Property unless such exaction (i) is applied uniformly to development_ either throughout the City or within a defined area of benefit which includes the Property, and (ii) complies with all laws applicable to such exactions. Any Subsequent Development Exactions which the City is empowered to levy pursuant to this Agreement shall not exceed the "fair share" of the benefit allocable to the specific parcel(a) against which such exaction is imposed, determined pro rata in proportion to the benefit allocable to all properties, developed or undeveloped, in the area of benefit of the program, facility or service to be funded, as provided by law.
No subsequently adopted Development Exaction shall apply if its application to the Property would substantially interfere with the Development of the Property in accordance with the existing development approvals.
(e) Regulations which are not in conflict with the
Development Plan; however, any ordinance, resolution. regulation, or measure which is enacted, whether by action of the City, by initiative, referendum, or otherwise, which relates to the rate, timing or sequencing of the Development or construction of the Project, shall be deemed to be in conflict with the Development Plan and shall therefore not be applicable to B MTH32T. 7
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the Development of the Property. Without limiting the foregoing, any limitation affecting timing of the availability of permits, approvals. or other entitlements relating to subdivision maps, building permits, utility connections, or other entitlements necessary for the Development of the Project shall be deemed to be in conflict with the Development Plan and shall therefore not be applicable to Development of the Property.
3.7.2 Subsecuent Development Approvals. This Agreement shall not restrict the City in acting on Subsequent Development Approvals and from applying Subsequent Land Use Regulations which do not conflict with but which may provide definition to the Development Plan, nor shall this Agreement prevent the City from denying or conditionally approving any Subsequent Development Approval on the basis of the Existing Land Use Regulations or any Subsequent Land Use Regulation not in conflict with the Development Plan.
3.7.3 Modification or Sus,ension by State or Federal Law. In the event that State or Federal laws or regulations, enacted after the Effective Date of this Agreement, prevent or preclude compliance with one or more of the 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, provided, however, that this Agreement shall remain in full force and effect to the extent it is not inconsistent with such laws or regulations and to the extent such laws or regulations do not render such remaining provisions impractical to enforce.
3.7.4 Intent. The parties acknowledge and agree that the City is restricted in its authority to limit its police power by contract and that the foregoing limitations. reservations and exceptions are intended to reserve to the City all of its police power which cannot be so limited. This Agreement shall be construed, contrary to its stated terms if necessary, to reserve to the City all such power and authority which cannot be restricted by contract.
3.8 Provision of Real Property Interests by City. Except as otherwise provided herein, in any instance where the Owner is required, pursuant to a condition of approval of the Development of the Property, to construct any public improvement on land not owned by the Owner; the Owner shall attempt in good faith to provide or cause to be provided at its sole cost and expense the real property interests necessary for the construction of such public improvements. In the event the Owner is unable, after exercising reasonable efforts, including, but not limited to, the rights under Sections 1001 and 1002 of the Civil Code, to acquire the real property interests necessary for the construction of such public improvements, the City shall, if necessary, in accordance with the procedures established by law, use its power of eminent domain to acquire such required real property interests. The Owner shall pay all costs associated with such acquisition and condemnation proceedings, including City administration and legal costs. In the event of the advance funding of costs, City shall endeavor to provide a mechanism for Owner to recover such costs, including an adjustment for the cost of moneys advanced, from other owners of property benefiting from such improvements on a fair -share basis.
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3.9 Regulation by Other Public Agencies. It is acknowledged by the parties that other public agencies not within the control of the City possess authority to regulate aspects of the Development of the Property separately from or jointly with the City and this Agreement does not limit the authority of such other public agencies acting separately from or jointly with the City. The City agrees to cooperate with and use its reasonable efforts in support of the Owner's efforts to obtain any required approvals from such other public agencies which may be necessary for the Development of Property in accordance with the Development Plan.
3.10 Tentative Tract Ma Extension. Existing tentative subdivision or tentative parcel maps in connection with the Development of the Property shall be effective for the longer of the following periods of time:
(a) The period of time within which tentative subdivision or tentative parcel maps may be finalized on property which is not affected by a development agreement entered into pursuant to Government Code sections 65864 through 65869.5; or (b) A term of ten (10) years from the Completion Date, provided that Owner may apply for and City may grant two (2) additional one-year extensions.
The terms of any tentative subdivision or tentative parcel map hereafter approved in connection with the Development of the Property pursuant to this Agreement shall be the longer of the following periods of time:
(a) The period of time within which tentative subdivision or tentative parcel maps may be finalized on property which is not affected by a development agreement entered into pursuant to Government Code sections 65864 through 65869.5; or (b) Pursuant to Government Code section 66452.6(a), an initial term of ten (10) years from the approval of the tentative map, provided that Owner may apply for and City may grant two (2) additional one-year extensions and further provided that the total term of any such tentative map shall not exceed the term of this Agreement.
3.11 Vesting Tentative Maps. If any tentative or final subdivision map, or tentative or final parcel map, heretofore or hereafter approved in connection with Development of the Property, is a vesting map under Subdivision Map Act (Government Code Section 66410, et seq.) and if this Agreement is determined by a final judgment to be invalid or unenforceable insofar as it grants a vested right to develop to the Owner, then and to that extent the rights and protections afforded to the Owner under the laws and ordinances applicable to vesting maps shall supersede the provisions of this Agreement. Except as set forth immediately above, Development of the Property shall occur only as provided in this Agreement, and the provisions in this Agreement shall be controlling over any conflicting provision of law or ordinance concerning vesting maps.
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4. PUBLIC IMPROVEMENTS AND FINANCING.
4.1 Streets and Highways.
4.1.1 Generally. The City has approved the conceptual
Circulation Plan included within the Development Plan. Except as otherwise expressly provided herein, as Development of the Project proceeds and construction of various components of the Circulation Plan are required to serve the Project, the Owner shall dedicate to the City those specified streets and highways and related improvements to be constructed thereon which are designated as "public" streets and highways within the Circulation Plan of the Development Plan and subsequent Development Approvals; and the Owner shall construct or cause to be constructed the specified improvement for the streets and highways depicted within the Circulation Plan of the Development Plan and subsequent Development Approvals as Development of the Property proceeds. It is understood that such dedication and construction of the identified circulation improvements will proceed incrementally as reasonably determined by the City based upon traffic demands and in accordance with the phasing of the development of the Project. The City reserves the right to make minor changes to the Circulation Plan if the City determines in its sole reasonable judgement based upon traffic studies that such minor changes are necessary in order to accommodate projected traffic demands. Such minor changes shall in no event materially and adversely impact the Development Plan or the benefits to accrue to the Owner thereunder. The City agrees to use its best efforts to facilitate the construction of the circulation improvements in accordance with this Agreement.
4.1.2 Transportation Benefit District. The City agrees to use its best efforts to form and implement a "Transportation Benefit District" ("TBD") within two (2) years of the sale of CFD 1993A bonds for the purpose of allocating to and imposing fees and/or assessments upon other properties which benefit from the costs incurred by the Owner in improving streets identified by the General Plan or streets having four (4) or more travel lanes. The TBD shall provide for the allocation of costs, including interest on moneys advanced, fees and assessments based upon the City traffic indexes, credits and reimbursements, and shall be developed in conjunction with the City Program.
4.1.3 Through Streets. It is agreed that the streets with four (4) or more travel lanes which are identified in the Circulation Plan of the Development Plan ("Through Streets") will be improved such that their traffic carrying capacities will be sufficient to serve area -wide traffic requirements and meet traffic demands beyond those created by the Project. Therefore, the City agrees to use its best efforts to facilitate the formation and implementation of a TBD to provide reimbursement to the Owner of street improvement costs which exceed those improvement costs which would be required to serve only the Project. Owner agrees to grant or dedicate without cost to the City, rights -of -way within the Property necessary for the Through Streets, including the right-of-way necessary to serve non -Project related traffic demand. The dedications shall take place only as such streets are required in order to facilitate the incremental Development of the Project or to serve area - wide traffic requirements as determined by the City. The TBD to be created shall be BNITI-iRT.7
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