CITY OF SIMI VALLEY
MEMORANDUM
June 13, 2022
TO: City Council
FROM: Department of Environmental Services
SUBJECT: SECOND READING OF ORDINANCE NO. 1339 APPROVING A
REQUEST FROM RUNKLE CANYON, LLC FOR AN AMENDMENT TO
THE RUNKLE CANYON DEVELOPMENT AGREEMENT DA- 2021-0001
(DA-04-01 AMD#04) TO ALLOW A THREE-YEAR TIME EXTENSION FOR
THE RUNKLE CANYON/WOODLANDS PROJECT, LOCATED AT THE
SOUTH TERMINUS OF SEQUOIA AND TALBERT AVENUES, AND
WATSON AND COMET AVENUES
STAFF RECOMMENDATION
It is recommended that Ordinance No. 1339 be adopted.
BACKGROUND
The attached Ordinance was introduced for first reading at the City Council meeting of May 9, 2022 without modification.
SUGGESTED CITY COUNCIL MOTION
I move to adopt Ordinance No. 1339.
____________________________________
Lucy Blanco, CMC
City Clerk
Prepared by: Lucy Blanco, CMC, City Clerk
AGENDA ITEM NO.
8A
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O
RDINANCE NO. 1339
A
N ORDINANCE OF THE CITY COUNCIL OF THE CITY OF
SIMI VALLEY APPROVING A REQUEST FROM RUNKLE
CANYON, LLC FOR AN AMENDMENT TO THE RUNKLE
CANYON DEVELOPMENT AGREEMENT DA- 2021-0001
(DA-04-01 AMD#04) TO ALLOW A THREE -YEAR TIME
EXTENSION FOR THE RUNKLE CANYON/WOODLANDS
PROJECT, LOCATED AT THE SOUTH TERMINUS OF
SEQUOIA AND TALBERT AVENUES, AND WATSON AND
COMET AVENUES
W
HEREAS, pursuant to the provisions of California Government Code Section 65868 and the 2004 Simi Valley Municipal Code, the applicant, Runkle Canyon, LLC has requested approval of an Amendment to the Development Agreement DA-2021- 0001 (DA-04-01 AMD#04) for a three-year time extension for the approximate 1,595-acre Runkle Canyon/Woodlands project, located at the south terminus of Sequoia and Talbert Avenues, and Watson and Comet Avenues
W
HEREAS, pursuant to the requirements of the California Environmental Quality Act (CEQA), the City Council of the City of Simi Valley adopted Resolution No. 2001-41 on April 24, 2004, certifying the Final Environmental Impact Report (FEIR) for the Runkle Canyon Project; and
W
HEREAS, an Addendum to the Runkle Canyon FEIR was prepared pursuant to Section 15164(a) of the CEQA Guidelines, and, on August 13, 2012, the City Council approved the Addendum; and
W
HEREAS, Pursuant to Public Resources Code section 21166, the project does not require additional environmental review and findings to support this determination are presented in the Planning Commission staff report dated March 9 , 2022; and
W
HEREAS, on March 9, 2022, the Planning Commission of the City of Simi Valley held a public hearing and recommended approval of the Development Agreement DA-2021-0001 (DA -04-01 AMD#04) for a three- year time extension for the Runkle Canyon/Woodlands project.
NO
W, THEREFORE, THE CITY COUNCIL OF THE CITY OF SIMI VALLEY DOES ORDAIN AS FOLLOWS:
S
ECTION 1. Pursuant to Public Resources Code section 21166, the project does not require additional environmental review and findings to support this determination presented in the Planning Commission staff report dated March 9, 2022, are hereby approved.
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SECTION 2 . The findings, for approval, for DA -2021-0001 (DA -04-01 AMD#04), contained in the Planning Commission staff report dated March 9, 2022, and incorporated herein by referenced, are hereby approved.
SECTI
ON 3. The Amendment to the Runkle Canyon Development
Agreement DA-2021-0001 (DA-04-01 AMD#04) to modify Section 3 to extend the term for three years, attached hereto as Exhibit A, is hereby approved.
SECTION 4. The City Clerk shall cause this ordinance , or a summary hereof, to be published in a newspaper of general circulation, published in the County of Ventura and circulated in the City, and if applicable, to be posted, in accordance with Section 36933 of the California Government Code; shall certify to the adoption of this ordinance and shall cause a certified copy of this ordinance, together with proof of publication, to be filed in the Office of the Clerk of this City.
SECTI
ON 5. This ordinance shall go into effect and be in full force and effect at 12:01 a.m. on the thirty-first (31st) day after its passage.
PASSED and ADOPTED this 13th day of June 2022.
Attes
t:
Lucy Blanco, City Clerk Keith L. Mashburn, Mayor of the City of Simi Valley, California
Appro
ved as to Form: Approved as to Content:
David L. Caceres, City Attorney Brian Paul Gabler, City Manager ___________
______________________
Stratis Perros
Environmental Services Director
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RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO:
Cit
y of Simi Valley
Attn. City Clerk
2929 Tapo Canyon Road
Simi Valley, CA 93063
[ Space above for recorder's use.]
T
his document is recorded for the benefit
of the City of Simi Valley and therefore is
exempt from the payment of a recording
fee pursuant to Government Code
Sections 6103 and 27383.
F
OURTH AMENDED AND RESTATED DEVELOPMENT AGREEMENT [DA-2021- 0001 (DA-04-01 AMD#04)] BETWEEN THE CITY OF SIMI VALLEY AND RUNKLE
CANYON, LLC
T
his Fourth Amended and Restated Development Agreement DA -2021-0001 (“Agreement” or “DA-04-01 AMD#04”) is entered into by and between the CITY OF SIMI VALLEY, a municipal corporation (“City”), and RUNKLE CANYON, LLC, a Delaware Limited Liability Company and any successors or assigns (“Developer”), each a “Party,” and collectively “Parties,” on [date] [DA -2021-0001(the “DA-04-01 AMD#04 Effective Date”)], pursuant to the authority of California Government Code Sections 65864 et seq.
RE
CITALS
A. T
he Legislature of the State of California adopted the Development Agreement Legislation (Government Code Sections 65864 et seq.) which authorizes City to enter into binding development agreements with persons having legal or equitable interests in real property for the development of such property in order to, among other things: encourage and provide for the development of public facilities in order to support development projects; provide certainty in the approval of development projects in order to avoid a waste of resources and escalation in project costs and encourage an investment in and commitment to comprehensive planning which will make maximum efficient utilization of resources at the least economic cost to the public; and provide assurance to the applicants of development projects that they may proceed with their projects in accordance with existing policies, rules and regulations, subject to the conditions of approval of such projects and provisions of such development agreements.
B. P
ursuant to City’s police powers, City is authorized to enter into binding agreements with person having legal or equitable interests in real property.
C. D
eveloper is the owner in fee or has valid options to acquire, certain real property situated in or adjacent to the City of Simi Valley, County of Ventura (hereinafter “County”), State of California, consisting of approximately 1,596 acres (“Property”) described in Exhibit “A” and depicted on the Site Map Exhibit “B” attached hereto and
incorporated herein by this reference.
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EXHIBIT A
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D. Developer desires to develop the Property as residential development and as open space and recreational uses as described in the Specific Plan.
E. In preparing and adopting the City of Simi Valley General Plan (“General Plan”), which allows a maximum of 700 units for the Property, City considered the health, safety and general welfare of the City’s and region’s residents and prepared a Final Environmental Impact Report for the Project. Without limiting the generality of the foregoing, in preparing and adopting the Specific Plan and in granting the Development Approvals, the City Council carefully considered and determined the existing and projected needs of the City for water service, sewer service, storm drains, flood co ntrol, electrical facilities, traffic/circulation improvements, police and fire services, and similar improvements, facilities and services. The General Plan defined in this paragraph is the plan in effect at the time of the Operative Date of Development Agreement No. DA-04-01.
F. The City Council, in furtherance of the development of the Project has approved the Specific Plan and the Development Approvals.
G. The proposed Agreement is consistent with the objectives, policies and programs specified in the General Plan of the City;
H. The proposed Agreement is compatible with the uses authorized in, and the regulations prescribed for the zone in which the real property is located;
I. The proposed Agreement will not be detrimental to the health, sa fety and general welfare of the general public; and
J. The proposed Agreement will promote the orderly development of property and the preservation of property values in accordance with good land use practices.
K. In accordance with Government Code Sections 65864 et seq., City has adopted Chapter 9 of Title 9 of the Simi Valley Municipal Code, incorporated herein by reference, establishing rules, regulations, procedures and requirements, for consideration of development agreements.
L. The Planning Com mission of City, after a duly noticed public hearing on April 7, 2004, considered and recommended approval of Development Agreement No. DA-04-01, in conjunction with the Development Approvals.
M. The City Council of City, after a duly noticed public hearing on April 26, 2004, considered and introduced for first reading Ordinance No. 1058 approving Development Agreement No. DA-04-01 in conjunction with the Development Approvals.
On May 10, 2004, the City Council passed and adopted Ordinance No. 1058 approving DA-04-01. DA -04-01 was recorded on May 26, 2004, as Document No. 20040526- 0147236 in the Official Records of the Office of the Recorder of the County of Ventura.
N. Pursuant to Section 4 of the Agreement, an Assignment and Assumption of Development Agreement No. DA -04-01 by Assignor Developer GreenPark Runkle Canyon, LLC, to Assignee Runkle Canyon, LLC, a Delaware limited liability company, 5 ORD. NO. 1339
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dated August 4, 2005, was recorded on November 8, 2005, as Instrument No. 20051108- 0274668 in the Official Records of the Office of the Recorder of the County of Ventura County, and consented to by the City per the Consent of the City, dated August 15, 2005.
This Assignment to Runkle Canyon, LLC, is incorporated herein.
O. Pursuant to Section 20 of the Agreement, the City Manager of City and the Developer mutually agreed on December 4, 2005, to 1) amend Section 7 of the Agreement to require that no grading take place until the City Council approved staf f issuance of the grading permit and 2) amend Section 24 to require the expiration date of the project’s Planned Development Permits be extended to the end of the Agreement’s Term. The City Manager and the Developer also mutually agreed on June 6, 2011 to amend Exhibit C, Part II(A)(1) in its entirety to require that approval of all Modifications to the Planned Development Permit be obtained for the project by the end of the Agreement’s Term. These amendments to the Agreement are incorporated herein.
P. The City Council of City, after a duly noticed public hearing on July 16, 2012, considered and introduced Ordinance No. 1197 for first reading, and, on August 13, 2012, adopted Ordinance No. 1197 approving DA -04-01 Amendment No. 1 to amend Section 3 of the Agreement to extend the Term for five years. This amendment to the Agreement is incorporated herein.
Q. The City Council of City, after duly noticed public hearing on August 15, 2016, considered and introduced Ordinance No. 1261 for first reading, and, on August 29, 2016, adopted Ordinance No. 1261 approving DA -04-01 Amendment No. 2 to allow the Developer to provide additional contributions to the City for specified purposes. Also included was a Second Amended and Restated Affordable Housing Agreement/ Senior Housing Agreement, which is attached hereto and incorporated by reference as Exhibit “H,” which set forth a payment by Developer in-lieu of providing 62 affordable dwellings for low income senior households pursuant to Resolution No. 2003- 70. The Second Amended and Restated Affordable Housing Agreement/Senior Housing Agreement further includes an additional density bonus provided to Developer due to a qualifying senior housing project. This amendment to the Agreement is incorporated herein.
R. T he City Council of City, after a duly noticed public hearing on February 25, 2019 considered and introduced Ordinance No. 1295 for first reading, and on March 11, 2019, adopted Ordinance No. 1295 approving DA -04-01 Amendment No. 3 to amend Section 3 of the Agreement to extend the Term for three years. This amendment to the Agreement is incorporated herein.
S. This Fourth Amended and Restated Development Agreement [DA -2021- 0001 (DA-04-01 AMD#04)] incorporates changes to Section 3 of the Agreement to extend the Term for three additional years. This will allow the Developer additional time to complete construction of the project and related improvements.
T. City hereby finds and determines that this Agreement, as approved by the City Council, is consistent with the General Plan and the Specific Plan and that this Agreement, is consistent with the Development Approvals.
NOW, THEREFORE, in consideration of the mutual promises and covenants contained herein and other considerations, the value and sufficiency of which is hereby acknowledged, the parties agree as follows:
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1. INCORPORATION OF RECITALS . The parties agree the foregoing Recitals are true and correct and incorporated into this Agreement.
1.1 DEVELOPMENT APPROVALS AND PROPERTY SUBJECT TO
THIS AGREEMENT. All of the Development Approvals and the Subject Property shall be subject to this Agreement. The permitted uses, the density and intensity of use, the location of uses, the maximum height and size of proposed buildings, and other standards of project design applicable to the Property shall be those set forth in the Existing Development Regulations and Development Approvals. The City hereby agrees that the land uses set forth in this Agreement are approved or will be approved pursuant to the terms of this Agreement. The EIR was prepared for the Project and was certified by the City Council. The Project site is to be developed in phases pursuant to the Specific Plan.
2. DEFINITIONS. The following words and phrases are used as defined terms throughout this Agreement, and each defined term shall have the meaning set forth below.
2.1 “Annexation Date” shall mean the date that the Property annexation receives final approval from the Ventura County LAFCO board.
2.2 “Applicable Rules” shall mean those rules, regulations, and standards in effect upon the Approval Date.
2.3 “Approval Date” shall mean a date thirty (30) days after the approval of original agreement DA-04-01 by the City Council per Ordinance No. 1058.
2.4 “Development Approvals” shall mean all other approvals which were authorized, accepted or certified by the City in conjunction with the Agreement, including, but not limited to the Tentative Tract Map, Planned Development Permit and Modifications thereto, and Conditional Use Permit as listed in Exhibit G.
2.5 “Planned Development” or “PD” shall mean a Planned Development Permit.
2.6 “Operative Date” shall mean pursuant to Government Code Section 65865(b) that the Agreement shall not become operative unless annexation proceedings annexing the property into the City are completed within two (2) years after approval of the project. The Operative Date, as used in this Agreement, is December 6, 2004, when the annexation of the Property to the City became effective.
2.7 “ Project” shall mean all the Development Approvals and uses of Property subject to the terms and public benefit of the Agreement.
2.8 “Property” shall mean that certain real property described in Exhibit “A” and depicted on Exhibit “B” to this Agreement.
2.9 “RBPAS” shall mean the City’s Residential Building Permit Allocation System.
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2.10 “SOAR” shall mean the Save Open- Space and Agricultural Resources City Urban Restriction Boundary initiative measure adopted by the voters on November 3, 1998.
3. TERM
. The Term of this Agreement shall commence on the Approval Date and shall extend for a period of eight (8) years following the date of the issuance of the first building permit for the project. Notwithstanding the above, the maximum term of this Agreement shall be ten (10) years from the Approval Date and further extended an additional five (5) years by Development Agreement Amendment DA-04-01 Amendment #1 per City Council Ordinance No. 1197. Notwithstanding the above, on March 11, 2019 the Development Agreement Amendment DA -04-01 Amendment #3 extended the Term for an additional three years per City Council Ordinance No. 1295. Amendment #04 (DA- 2021-0001), further extends the Term of the Development Agreement an additional three (3) years, until June 10, 2025 per City Council Ordinance. The Term has been established by the Parties as a reasonable estimate of the time required to carry out the Project, develop the Property and obtain the public benefits of the Project and the Agreement. City finds that a term of such duration is reasonably necessary to assure City of the realization of the public benefits from the Project. In establishing and agreeing to such term, City has determined that this Agreement incorporates sufficient provisions to permit City to monitor adequately and respond to changing circumstances and conditions in granting permits and approvals and undertaking actions to carry out the Project.
This Agreement shall terminate and be of no force and effect upon the occurrence of the entry of a final judgment or issuance of a final order, after exhaustion of any appeals, directed against City as a result of a lawsuit filed against City to set aside, withdraw or abrogate the approval by the City Council of City of this Agreement.
4. ASSIGNMENT
. The rights of Runkle Canyon, LLC, a Delaware general partnership under this Agreement may not be transferred or assigned unless the written consent of the City is first obtained. Such consent shall not be unreasonably withheld.
Following an approved assignment or transfer of any of the rights and interests of Developer set forth in this Agreement, the assignee’s exercise, use, and enjoyment of the Property shall continue to be subject to the terms of this Agreement to the same extent as if the assignee or transferee were Developer.
Upon the written consent of City to the partial or complete assignment of this Agreement and the express written assumption of such assigned obligations of Developer, under this Agreement by the assignee, Developer shall be relieved of its legal duty to perform the assigned obligations set forth in this Agreement, except to the extent Developer is in default hereunder prior to said transfer.
5. EFFECT OF AGREEMENT ON LAND USE REGULATIONS . The parties hereby agree that, for the term of this Agreement, the rules, regulations and official policies governing the design, improvement and construction standards and specifications applicable to development of the Property shall be those rules, regulations and official policies in force at the time of the Operative Date, except Developer shall be subject to the uniform codes procedural regulations, construction specifications, City 8 ORD. NO. 1339
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processing fees and development fees which are in effect at the time of payment of the fees and other exceptions specified in this Agreement.
The City may apply, in subsequent actions concerning the Property, new rules, regulations and policies with respect to the Property provided that they do not in any way conflict with or modify the existing rules, regulations and official policy applicable to the Property.
This Agreement shall not prevent the City from denying or conditionally approving any subsequent development project application submitted for other real property, which is not the subject of this Agreement, on the basis of existing or new rules, regulations and policies.
In the event that any subsequent change in the laws or regulations of a federal or state agency prevents or precludes compliance with one or more provisions of this Agreement, such provision shall be modified or suspended only to the extent necessary to comply with such new federal or state law or regulation.
6. EXHIBITS
. Exhibits to this Agreement are as follows:
Exhibit “A” Legal Description of Property.
Exhibit “B” Site Plan of Property.
Exhibit “C” Consideration and Development Schedule.
Exhibit “D” Prioritization Criteria.
Exhibit “E” Grant of Conservation Easement. (Executed/Recorded Copy Included)
Exhibit “F” Runkle Ranch Open Space/Management Plan.
(Executed/Recorded Copy Included)
Exhibit “G” List of Property’s Development Approvals
Exhibit “H” Second Amended and Restated Affordable Housing Agreement (“Senior Housing Agreement”) (AH-O-47
AMD#2)
(Executed/Recorded Copy Included)
7. TIMING OF DEVELOPMENT . The timing of development shall be in accordance with the Development Schedule shown in Exhibit “C” and attached hereto, provided that no grading shall take place on the site until the City Council approves staff’s issuance of a grading permit.
8. ALLOCATION GRANTS
. RBPAS and SOAR. The Property’s Development
Approvals shall provide additional public benefits that advance the purposes of the RBPAS and SOAR as follows:
a. Senior Affordable Housing. In compliance with the requirements of the RBPAS, an d the Prioritization Criteria identified in Exhibit D (Resolution No. 2003- 70), for placement in the Development Agreement Queue, Developer shall pay an in-lieu fee for ninety-two (92) income eligible senior households in accordance with the Second Amended and Restated Affordable Housing Agreement/Senior Housing Agreement (AH- O-47 AMD#2) between the Developer and City identified in Exhibit H.
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b. Air Quality. Developer shall undertake all the possible Air Quality mitigation measures identified in Exhibit D, the Prioritization Criteria, in order to maximize all possible point scores.
c. Hillside Protection. Developer shall grant and convey a Conservation Easement, as described in Exhibit “E”, 1150 acres of Public Open Space, as described in Exhibit C a nd undertake the Hillside Protection mitigation measures specified in the Development Approvals.
9. PROJECT DEVELOPMENT STANDARDS
. Pursuant to Section 65865.2
of the California Government Code, the permitted uses, 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 as contained in the Development Approvals and the applicable rules incorporated herein by reference.
10. POLICE POWER
. In all respects not provided for in this Agreement, City shall retain full rights to exercise its police power to regulate the development of the Property. Any uses or developments requiring additional Tentative Tract Maps, Special Use Permits (including Conditional Use Permits), Variance, or other discretionary permits or approvals in accordance with the Specific Plan or City’s zoning or other land use regulations, shall require a permit or approval pursuant to this Agreement, and, notwithstanding any other provision set forth herein, this Agreement is not intended to vest Developer’s right to the issuance of such permit or approval nor to restrict City’s exercise of discretion with respect thereto. Not by way of limitation of the foregoing, it is specifically understood that City reserves the right to amend, pursuant to procedures provided by law and this Agreement, the Specific Plan and other City laws, rules, regulations, and policies applicable to the Property as to which Developer’s rights are not expressly vested and such amendment or amendments shall be binding on the Property except to the extent that the same conflict with the express provisions of this Agreement.
11. PUBLIC BENEFITS
. The parties acknowledge and agree that Project will
result in substantial public needs which will not be fully met by the Development Approvals and further acknowledge and agree that this Agreement confers substantial private benefits on Developer which should be balanced by commensurate public benefits.
Accordingly, this Agreement provides consideration to the public in order to balance the private benefits conferred on Developer.
Under the Second Amended and Restated Development Agreement the Developer provided a new public benefit consisting of a contribution of three million nine hundred thousand dollars ($3,900,000) to the City for public improvements, public services, and community amenities as set forth in Exhibit C, Part 1.A(2), pursuant to Government Code Sections 65865(e) and 66006.
12. COVENANTS RUN WITH THE LAND
. All of the provisions, agreements,
rights, powers, standards, terms, covenants and obligations contained in this Agreement shall be binding upon the Parties and their respective heirs, successors (by merger, consolidation, or otherwise) and assigns, devisees, administrators, representatives, lessees, and all other persons or entities acquiring the Subject Property, any lot, parcel or any portion thereof, or any interest therein, whether by sale, operation of law or in any 10 ORD. NO. 1339
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manner whatsoever, and shall inure to the benefit of the Parties and their respective heirs, successors (by merger, consolidation or otherwise) and assigns. All of the provisions of this Agreement shall be enforceable during the Term as equitable servitudes and constitute covenants running with the land pursuant to applicable law, including, but not limited to Section 1468 of the Civil Code of the State of California. Each covenant to do or refrain from doing some act on the Subject Property hereunder, or with respect to any City owned property or property interest: (i) is for the benefit of such properties and is a burden upon such property, (ii) runs with such properties, and (iii) is binding upon each party and each successive owner during its ownership of such properties or any portion thereof, and each person or entity having any interest therein derived in any manner through any owner of such properties, or any portion thereof, and shall benefit each party and its property hereunder, and each other person or entity succeeding to an interest in such properties.
13. CONSTRUCTIVE NOTICE AND ACCEPTANCE
. Every person who now
or hereafter owns or acquires any right, title, or interest in or to any portion of the Project or the Property is and shall be conclusively deemed to have consented and agreed to every provision contained herein, whether or not any reference to this Agreement is contained in the instrument by which such person acquired an interest in the Project or the Property.
14. CONSIDERATION AND DEVELOPMENT SCHEDULE S. The parties hereby agree to the Consideration and Development Schedules set forth in Exhibit “C” hereto.
15. COOPERATION
. The mutual undertakings and assurances described in
this Agreement are for the benefit of City and Developer and promote comprehensive planning, private and public cooperation and participation in the provision of public facilities, and the effective and efficient development of infrastructure and facilities supporting development. City and Developer agree that they will not take any actions which are intended to circumvent this Agreement.
16. DEFAULT OF DEVELOPER . Developer shall be in default under this Agreement upon the occurrence of one or more of the following events or conditions:
(a) If a material warranty, representation or statement was made or furnished by Developer to the City with respect to this Agreement which was known to be false in any material respect when it was made.
(b) A finding and determination by the City Council, made following a periodic review under the procedures provided under Government Code Section 65865.1, that upon the basis of substantial evidence Developer has not complied in good faith with one or more of the material terms or conditions of this Agreement.
(c) City may at its discretion, refuse to issue a building permit for any structure within the geographical confines of the Property if Developer has failed and refuses to complete any requirement enumerated therefore in accordance with the terms of this Agreement. No building permit shall be issued or building permit application accepted for the building shell of any structure on Property if the permit applicant owns or controls any 11 ORD. NO. 1339
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property subject to this Agreement, and if such applicant or any entity or person controlling such applicant is in default of the terms and conditions of this Agreement.
17. DEFAULT OF CITY. The City shall be in default under this Agreement if it imposes upon Developer rules, regulations or official policies governing the permitted uses, densi ty, maximum height and size of proposed structures, and reservations (dedications) of land for public purposes of the Property or the design, improvement and construction standards and specifications applicable to the development of the Property, which are not substantially the same as those rules, regulations and official policies in effect at the time of the Agreement Date, except as otherwise expressly permitted herein.
The City shall not be in breach of this Agreement by reason of any subsequent changes of laws or regulations by the electorate or by another local agency not created or controlled by the City which prevents or precludes compliance by the City/Developer, with this Agreement.
18. OTHER DEFAULT PROVISIONS
. The City shall not be deemed to have
waived any claim of default by Developer if, upon periodic review, the City fails to modify or terminate this Agreement based upon such purported default.
Non-performance shall not be excused because of an act or omission of any person not a party to this Agreement.
The adoption of a law or other governmental activity, which is consistent with this Agreement, making performance by Developer unprofitable or more difficult or more expensive shall not excuse the performance of Developer herein.
19. DAMAGES UPON DEFAULT; SPECIFIC PERFORMANCE
. The only
damage available to Developer in the event of default by City is that of Specific Performance.
All of the terms of this Agreement shall be specifically enforceable by either party hereto.
20. AMENDMENT OF THIS AGREEMENT
. Except as otherwise permitted
herein, this Agreement may be amended only by the mutual consent of the parties or their successors-in-interest, in the manner set forth in California Government Code Section 65865.1, 65867.5, and 65868. No change, modification, revision or alteration may be made in the Planned Development Permit without review and approval by those agencies of the City which approval is presently required under the existing rules or procedures of the City. A change, modification, revision or alteration in the Planned Development Permit shall not be effective until the parties hereto amend this Agreement to specifically incorporate it. However, any amendment which does not relate to the term, permitted uses, density or intensity of use, height, or size of buildings, provisions for reservation and dedication of land, or monetary contribution by Developer shall not require notice of or a public hearing and can be approved by the City Manager.
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If the Developer requests to have later enacted rules or policies, rather than existing policies, rules or regulations applied to the Project, this may require an amendment to the Agreement, unless the change is insignificant.
21. HOLD HARMLESS
. Developer hereby agrees to, and shall, defend,
indemnify, save and hold City and its elected and appointed boards, commissions, officers, agents, and employees harmless from any and all claims, actions, costs, and liability for any damages, personal injury or death, which may arise, directly or indirectly, from Developer or Developer’s contractors’, subcontractors’, agents’, or employees’ operations under this Agreement. However, City shall select the Attorney to represent the City and shall control the lawsuit or other legal action. The terms in this Section shall survive any termination of this Agreement.
22. OPERATING MEMORANDA
. The provisions of this Agreement require a
close degree of cooperation between City and Developer and the refinements and further development of the Project may demonstrate that clarifications are appropriate with respect to the details of performance of City and Developer. If and when, from time to time, during the term of this Agreement, City and Developer agree that such clarifications are necessary or appropriate, they shall effectuate such clarifications through operating memoranda approved by City and Developer, which, after execution, shall be attached hereto, and may be further clarified from time to time as necessary with future approval by City and Developer. No such operating memoranda shall constitute an amendment to this Agreement requiring public notice or hearing. The City Attorney shall be authorized to make the determination as to whether a requested clarification may be effectuated pursuant to this Section or whether the requested clarification is of such a character to constitute an amendment hereof pursuant to Section 20. Upon such a finding, the City Manager may execute any operating memoranda hereunder without City Council action.
23. IMPOSITION OF COVENANT OF EASEMENT BY ORDINANCE. Nothing herein shall preclude the City from acting pursuant to Government Code Sections 65870 et seq. in furtherance of implementing this Agreement.
24. TENTATIVE TRACT MAP EXTENSION . Pursuant to Gover nment Code Section 66452.6(a), the term of any tentative map for any subdivision shall automatically be extended for the term of this Agreement. The term for any previously approved Planned Development Permit (PD), Conditional Use Permit (CUP), or Modific ation thereto, or the time limits for when future PD’s, CUP’s, or Modification’s must be approved by the City, may be extended by the City Manager, for any period of time up to and including the term of this Agreement.
25. TIMING OF DEVELOPMENT
. The Parties acknowledge that Developer
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 Developer, such as market orientation and demand, interest rates, absorption, completion and other similar factors. Since the California Supreme Court held, in Pardee Construction Co. v. City of Camarillo (1984) 37 Cal.3d 465, that the failure of the parties in that case to provide for the timing of development resulted in a later adopted initiative restricting the timing of development to prevail over such parties’ agreement, it is the parties’ intent to cure that deficiency by acknowledging and providing that Developer shall 13 ORD. NO. 1339
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have the right to develop the Property in such order and at such rate and at such times as Developer deems appropriate within the exercise of its subjective business judgment, including with respect to single- family and senior housing units to be developed as part of the project. The timing or phasing requirements set forth in the Development Approvals with respect to the senior housing units, specifically Conditions of Approval A -16 and A- 17, are superseded by this Section 25. Any regulation, whether adopted by initiative or otherwise, limiting the rate or timing of development of the property, shall be deemed to conflict with the Development and/or this Agreement, and therefore shall not be applicable to the development of the Property.
26. MISCELLANEOUS PROVISIONS
.
(a) City and Developer intend that this Agreement, approved and executed as an exercise of the City’s police power and pursuant to the authority of the Development Agreement Legislation, shall become operative, and be in full force and effect on the Operative Date and govern the intent and obligations of the parties hereto with respect to the Property’s development in the City.
(b) It is specifically understood and agreed by and between the parties hereto that the Project is a private 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.
(c) The captions of this Agreement are for convenience and reference only and shall in no way define, explain, modify, construe, limit, amplify or aid in the interpretation, or meaning of any of the provisions of this Agreement.
(d) This Agreement constitutes the entire understanding and agreement of the Parties and supersedes all previous negotiations, discussions, and agreements between the Parties with respect to all or part of the subject matter hereof. No parol evidence of any prior or other agreement shall be permitted to contradict or vary the terms of this Agreement.
(e) This Agreement is not intended to alter the obligations of the parties under any other contracts existing between them, whether signed before, after, or in conjunction with this Agreement.
(f) This Agreement, including, without limitation, its existence, validity, construction and operation, and the rights of each of the parties shall be determined in accordance with the laws of the State of California.
(g) This Agreement is not intended, nor shall it be construed, to create any third- party beneficiary rights in any person who is not a party, unless expressly otherwise provided.
(h) Failure by a Party to insist upon the strict performance of any of the provisions of this Agreement by the other Party, or the failure by a Party to exercise its 14 ORD. NO. 1339
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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 Agreement thereafter.
(i) If any provision of this Agreement shall be held to be invalid by a court of competent jurisdiction, the remainder of this Agreement shall not be affected thereby, unless the court shall specifically find that the invalid part is so fundamental and essential to the understanding of the parties that the entire Agreement shall be invalidated.
(j) The time limits set forth in this Agreement may be extended or shortened by mutual written consent of the parties.
(k) Pursuant to Government Code Section 65867.5, any tentative map prepared for any subdivisions of Project shall comply with the provisions of Government Code Section 66473.7 relating to the availability of water supply.
27. AUTHORITY TO EXECUTE
. Developer warrants and represents that (i)
Developer is duly organized and existing, (ii) it is duly authorized to execute and deliver this Agreement, (iii) by so executing this Agreement, Developer is formally bound to the provisions of this Agreement, (iv) Developer’s entering into and performance of its obligations set forth in this Agreement does not violate any provision of any other Agreement to which Developer is bound, and (v) there is no existing or threatened litigation or legal proceeding of which Developer is aware which could prevent Developer from entering into or performing its obligations set forth in this Agreement.
28. NOTICE. All notices, demands, requests, elections, approvals, disapprovals, consents or other correspondence and communications between City and Developer under this Agreement shall be in writing and shall be given by personal delivery, certified mail or telegram. Notice by personal delivery shall be deemed effective upon the delivery of such notice to the party for which it is intended at the address set forth below.
To City: CITY OF SIMI VALLEY
2929 Tapo Canyon Road
Simi Valley, California 93063
To Property Developer: Runkle Canyon, LLC
Keltie Cole and Haggai Mazler
25152 Springfield Court, Suite 180
Valencia, CA 91355
` and a copy by mail to:
KB Home, Attn: Legal Department,
10990 Wilshire Blvd., Seventh Floor, Los
Angeles, California, 90024
And by e-mail to: [email protected]
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Such written notices, demands, correspondence and communications may be directed in the same manner to such other persons and addresses as either party may from time to time designate by notice given in accordance with this Section.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed the day and year first above written.
Attest: City of Simi Valley, A Municipal Corporation
By:
Lucy Blanco, City Clerk Keith L. Mashburn, Mayor of the City of Simi Valley, California
Approved as to Form: Runkle Canyon, LLC
A Delaware Limited Liability Company
By:
David L. Caceres, City Attorney Keltie Cole, Authorized Agent
Approved as to Content:
Brian Paul Gabler, City Manager
Carolyn Johnson
Acting Administrative Services Director
Stratis Perros
Environmental Services Director
16 ORD. NO. 1339