HomeMy Public PortalAboutOrdinance 731ORDINANCE NO. 731
AN ORDINANCE OF. THE CITY COUNCIL OF THE CITY OF
BEAUMONT, CALIFORNIA, ADOPTING DEVELOPMENT AGREEMENT
NO. DA -7 BETWEEN THE CITY OF BEAUMONT AND THE
LOCKHEED CORPORATION (PURSUANT TO GOVERNMENT CODE
SECTIONS 65864 - 65869.5)
WHEREAS, the Lockheed Corporation has applied for the
annexation of 9,117 acres from the County of Riverside to the City
of Beaumont and submitted a Specific Plan for that area; and
WHEREAS, the City Council of the City of Beaumont has
prezoned said 9,117 acres to SPA (Specific Plan Area) pursuant to
92-RZ-2 by Ordinance No. 730, adopted September 27, 1993, having
concurrently approved the Potrero Creek Specific Plan SP -92-1;
and
WHEREAS, the applicant, Lockheed Corporation, has proposed
and submitted and City Staff have reviewed and negotiated a
Development Agreement between the City of Beaumont and the
Lockheed Corporation (pursuant to Government Code Sections 65864
- 65869.5) to govern development of said 9,117 acres; and
WHEREAS, the City Council of the City of Beaumont
certified Environmental Impact Report No. 92-2 on September 27,
1993 to provide proper disclosure of the environmental
consequences of the Potrero Creek Specific Plan and related
entitlement applications, inclusive of the Development
Agreements; and
WHEREAS, the Planning Commission of the City of Beaumont by
its recommendation of approval of said Development Agreement on
September 7, 1993, has made the following determination relative
to the proposed Development Agreement:
1. It is consistent with the objectives, policies, general
land uses and programs specified in the General Plan and
applicable Specific Plan;
2. It is compatible with the uses authorized in, and the
regulations prescribed for, the zoning and other land use
districts in which the real property is located;
3. It is in conformity with public convenience, general
welfare, and good land use practice;
4. It will not be detrimental to the health, safety and
general welfare; and
5. It will not adversely affect the orderly development of
property and the preservation of property values in the City of
Beaumont; and
WHEREAS, the City Council of the City of Beaumont has
reviewed the reasons for the recommendation of approval by the
Planning Commission as included in the materials submitted by the
Planning Commission to the City Council accompanying said
recommendation; and
WHEREAS, a duly noticed public hearing as required by law
was conducted by the Planning Commission of the City of Beaumont
on July 20, August 17 and September 7, 1993, and a duly noticed
public hearing as required by law was conducted by the City
Council of the City of Beaumont on September 27, 1993.
THEREFORE, THE CITY COUNCIL OF THE CITY OF BEAUMONT DOES
ORDAIN AS FOLLOWS:
SECTION 1: It has been determined that:
A. The provisions of the Development Agreement between the
City of Beaumont and the Lockheed Corporation are consistent with
the General Plan and the Lockheed Potrero Creek Specific Plan, SP -
92 -1; and
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Ordinance No. 731
B. The Development Agreement complies with all applicable
zoning, subdivision, and building regulations and with the
General Plan of the City of Beaumont and with Specific Plan
SP -92-1; and
C. The Development Agreement states the duration of the
Agreement to be a period not to exceed thirty (30) years, sets
forth the uses of the property, and the density and intensity of
use, and sets forth the maximum height and size of proposed
buildings and provides for the reservation and dedication of land
for public uses by providing an appropriate level of parks, open
space, school sites and civic area.
SECTION 2: The Development Agreement between the City of
Beaumont and the Lockheed Corporation attached hereto as Exhibit
"A" is approved and the Mayor of the City of Beaumont is
authorized and directed to execute said Development Agreement on
behalf of the City of Beaumont on or after the date when by law
this Ordinance shall take effect.
SECTION 3: This Ordinance shall take effect thirty (30)
days after its final passage and within fifteen (15) days after
its passage the City Clerk shall cause a summary to be published
in the Record -Gazette, a newspaper of general circulation printed
and published in the City of Beaumont in the manner prescribed by
law for publishing of ordinances of said City.
MOVED, PASSED AND ADOPTED on this llth day of October
1993, upon the following roll call vote:
AYES: Council Member Brey, McLaughlin, Parrott, Russo and
Mayor Leja.
NOES: None.
ABSTAIN: None.
ABSENT: None.
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4;7
dita"-(44Y OF BEAUMONT
CERTIFICATION
I, Julia White, Deputy City Clerk of the City of Beaumont DO
HEREBY CERTIFY that the foregoing Ordinance was introduced at a
regular meeting of the City Council of said City held on the
27th day of September , 1993, and was duly adopted upon
second reading on the llth day of October , 1993, upon
the following roll call vote:
AYES: Council Member Brey, McLaughlin, Parrott, Russo and
Mayor Leja.
NOES: None.
ABSTAIN: None.
ABSENT: None.
ft
WI�
PUTY CITY CLERK
CITY OF BEAUMONT
RECORDING REQUESTED BY, AND
WHEN RECORDED, MAIL TO:
City Clerk
City of Beaumont
P.O. Box 158
Beaumont, California 92223
(Space above this line for Recorder's use)
DEVELOPMENT AGREEMENT
NO. DA -7
BETWEEN
THE CITY OF BEAUMONT
AND
LOCKHEED CORPORATION
(Pursuant to California Government Code Sections 65864 - 65869.5
and City of Beaumont Ordinance Na 1987-34)
September 27, 1993
TABLE OF CONTENTS
Page
RECITALS 1
1. Definitions 4
2. Exhibits 5
3. Mutual Benefits 6
3.1 Benefits to the City 6
3.2 Benefits to the Developer 6
4. Interest of the Developer 6
5. Binding Effect of Agreement 7
6. Project as a Private Undertaking 7
7. Term 7
8. Hold Harmless 7
8.1 By the Developer 7
8.2 By the City 7
9. Vested Right 8
9.1 No Conflicting Enactments 8
9.2 Intent of Parties 8
10. Development of the Project 9
10.1 Annexation 9
10.2 Project 9
10.3 Phasing and Timing of Development 9
10.4 Effect of Agreement on Land Use Regulations 9
10.5 Approvals; Cooperation 10
10.6 Administrative Changes and Amendments 10
10.7 Subdivision Mapping 11
10.8 Mello -Roos Communities Facilities Districts; Other Assessment
Districts or Financing Mechanisms 11
10.9 Water and Sewer Facilities 12
10.10 Public Services and Facilities 12
10.11 Other Governmental or Quasi -Governmental Permits 12
10.12 Consistency Between This Agreement and Current Laws 12
10.13 Assessments, Fees, Mitigation Measures and Exactions 13
10.14 School Mitigation Agreement 13
10.15 Reimbursement by the City 13
10.16 Subsequent Actions 13
10.17 Changes in Project 14
11. Rules, Regulations and Official Policies 14
11.1 New Rules 14
11.2 State and Federal Laws 15
12. Amendment or Cancellation of Agreement 15
13. Enforcement 15
14. Periodic Review of Compliance With Agreement 15
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15. Events of Default 16
15.1 Default by the Developer 16
15.2 Default by the City 16
15.3 Specific Performance Remedy 17
16. Institution of Legal Action 17
17. Waivers and Delays 17
17.1 Waiver 17
17.2 Third Parties 18
17.3 Force Majeure 18
18. Notices 18
19. Attorneys' Fees 18
20. Transfers and Assignments 19
20.1 Right to Assign 19
20.2 Release Upon Transfer 19
21. Cooperation in the Event of Legal Challenge 19
22. Eminent Domain 19
23. Authority to Execute 20
24. Estoppel Certificates 20
25. Recordation 20
26. Protection of Mortgage Holders 20
27. Severability of Terms 21
28. Subsequent Amendment to Authorizing Statute 21
29. Interpretation and Governing Law 22
30. Section Headings 22
31. Incorporation of Recitals and Exhibits 22
32. Rules of Construction and Miscellaneous Terms 22
32.1 Gender 22
32.2 Time of Essence 22
32.3 Cooperation 22
EXHIBIT A LEGAL DESCRIPTION OF PROPERTY A-1
EXHIBIT B MAP OF PROPERTY B-1
EXHIBIT C THE CITY'S POTRERO CREEK SPECIFIC PLAN C-1
EXHIBIT D CERTAIN PERMITS AND APPROVALS
CONSTITUTING THE DEVELOPMENT PLAN D-1
EXHIBIT E STATEMENT OF BENEFITS TO THE CITY E-1
EXHIBIT F SCHEDULES OF FEES, ASSESSMENTS,
MITIGATION MEASURES AND EXACTIONS F-1
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INDEX OF DEFINITIONS
Page
"Agreement Date" 4
"Agreement" 1, 4
"Alternative Financing Mechanisms" 11
"CEQA" 3
"CFD" 11
"City" 1, 4
"City's Discretion" 4
"Developer" 1, 4
"Development Agreement Law" 1
"Development Plan" 4
"Effective Date" 5
"EIR" 3
"may" 22
"Mello -Roos Community Facilities Act of 1982," 11
"parties." 1
"Project Phasing Plan" 5
"Project" 2, 5
"Property" 1, 5
"shall" 22
"Specific Plan" 5
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DEVELOPMENT AGREEMENT
This DEVELOPMENT AGREEMENT ("Agreement") is entered into to be
effective on September 27, 1993, between LOCKHEED CORPORATION, a Califor-
nia corporation (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 terms 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 its Resolution
No. 1987-34, Establishing Procedures and Requirements for Consideration of
Development Agreements (such resolution, together with the aforementioned
Government Code Sections, 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 9,117 acres of land
currently located in unincorporated Riverside County, California 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 as an integrated,
mixed-use (residential, commercial, public and recreational) project in accordance
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with the Development Plan (as hereinafter defined in Section 1.6) (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 investment in
public facilities and on-site and off-site improvements prior to the construction and
sale or leasing of residential and commercial units.
F. The Property is currently located [adjacent to] the sphere of influence
of the City, but no portion of the Property lies within the City. The parties intend to
use their best efforts to expand the City's sphere of influence to encompass the
entire Property and to cause the entire Property to be annexed into the City.
G. The General Plan of the City, which includes the Property, provides
for the type of development set forth in the Development Plan. The parties intend
that the City approve by resolution a Specific Plan concurrently herewith, which is
more specifically described on Exhibit "C" hereto, as a part of the Development
Plan, which implements the City's General Plan and its various component elements
by providing specific land use and development standards. In order to enable the
Developer to expend the necessary sums to prepare the plans referred to herein and
to continue to pursue various other pre -development work associated with the
development of the Project, the City desires to provide through this Agreement for
certainty with respect to specific development criteria to be applicable to the
Property upon its annexation to the City in order to provide for appropriate
utilization of the Property in accordance with sound planning principles.
H. The City has determined that the use and intensity of use provided
for in this Agreement is consistent with the best interests of the City in managing its
growth in an orderly and beneficial manner, and with the provisions of the City's
General Plan applicable to the Property.
I. Development of the Property (which is largely vacant land lacking in
required infrastructure improvements) pursuant to the Development Plan requires
the construction of substantial public improvements early in the development and
construction process. Certain development risks and uncertainties associated with
the long term nature of the development, including the cost of the portion of those
regional public improvements required to be installed at the inception of the
development, could discourage and deter the Developer and other owners in the
vicinity from making the long term commitments necessary to fully develop the
Property pursuant to the Development Plan. It is the assurance of the ability to
complete the private income-producing components of the Development Plan in
general that provides the material inducement to the Developer to agree to commit
the land and financial resources required to commence and proceed with
development. The parties desire to enter into this Agreement in order to assure that
the Property is developed as an integrated planned community in general, and that
121579.V11 2 9/21/93
the uncertainties to such development over which the City has control are reduced to
the maximum extent possible.
J. The Developer has requested approval of, and the City, concurrently
with approval of this Agreement, has approved the Development Plan in order to
protect the interests of its citizens and the quality of the community and environment
through the specific plan process (Government Code Section 65450 et seq.). As part
of that process of approving the Development Plan, the City has undertaken,
pursuant to the California Environmental Quality Act ("CEQA"), the required
analysis of the environmental effects which would be caused by the Project. The
City has imposed a series of mitigation measures in connection with the development
of the Project to eliminate or reduce to a level of insignificance many otherwise
significant adverse impacts caused by the Project. As to those significant adverse
impacts which cannot be eliminated or reduced to a level of insignificance, the City
has adopted a statement of overriding considerations pursuant to CEQA setting forth
the reasons that, in the best judgment of the City, the beneficial aspects of the
Project outweigh those significant adverse impacts which cannot be eliminated or
reduced by mitigation measures. On September _, 1993, the City Council of the
City adopted Resolution No. 93- , certifying the environmental impact
report ("EIR") prepared for the Project as being complete and adequate and
complying with CEQA. Pursuant to Government Code Section 65457 and Public
Resources Code Section 21166 the City has agreed that, except as specifically set
forth on Exhibit "F" hereto and as otherwise legally required pursuant to such
Section 21166, no subsequent or supplemental Environmental Impact Report shall
be required by the City for the subsequent approvals implementing the development
of the Property.
K. The Development Plan implements the goals and policies of the
City's General Plan, as amended by the Amendment to the General Plan, described
in the Specific Plan referred to in Section 1.6, below, and satisfies the necessary
requirements and goals of all other applicable laws of the City. The Development
Plan provides balanced and diversified land uses in order to maintain the overall
quality of life and of the environment within the City and to impose appropriate
requirements with respect to land development and usage.
L The Developer has requested the City to consider entering into a
development agreement relating to the Project and proceedings have been taken in
accordance with the Development Agreement Law.
M. On September 27, 1993, the City Council of the City adopted
Ordinance No. , approving this Agreement with the Developer.
N. The City acknowledges that by electing to enter into contractual
agreements such as this Agreement, the obligations of which shall survive beyond the
1215791/11 3 9/21/93
term or terms of the present City Council members, such action will serve to bind
the City and future City Councils to the obligations hereby undertaken. By
obligating the City pursuant to this Agreement, the City Council has elected to
exercise certain governmental and proprietary powers at the present time rather than
deferring action to some undetermined future date. The City has considered not
approving the full Project at this time, but to do so would deprive the City of the
benefits of this Agreement. 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.
In light of the foregoing Recitals, which are an operative part of this
Agreement, the parties agree as follows:
1. Definitions.
1.1 "Agreement" is this Development Agreement.
1.2 "Agreement Date" is the date this Agreement is approved by
the City Council.
1.3 "The City" is the City of Beaumont, California.
1.4 "The 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.
1.5 "The Developer" is Lockheed Corporation, a California
corporation, and its successors in interest to all or any part of the Property.
1.6 "Development Plan" is the collective term for all of those
ordinances, resolutions, codes, rules, regulations and official policies of the City
governing the development and use of property located in the City as of the
Agreement Date, including, without limitation, the permitted uses of such property,
the density and intensity of use, the maximum height and size of proposed buildings,
the provisions for reservation or dedication of land for public purposes, and the
design, improvement and construction standards and specifications applicable to the
development of such property, and all of those permits and approvals which are
referenced on Exhibit "D" attached hereto which have been issued or granted by the
City in connection with any of the foregoing. Specifically, but without limitation,
121579.V11 4 9/21/93
such Development Plan includes the City's General Plan, as amended by the
Amendment to the General Plan, this Agreement and the Potrero Creek Specific
Plan adopted by the City Council on September 27, 1993 by Resolution No. 93 -
(hereinafter the "Specific Plan").
1.7 "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, (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 this the City is completed.
1.8 "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.
1.9 "Project Phasing Plan" means the Project Phasing Plan set
forth in Chapter 3 of the Specific Plan.
1.10 "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:
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Exhibit Designation Description
A Legal Description of
the Property
B Map of the Property
C The City's Potrero Creek Specific Plan
D Certain Permits and Approvals
Constituting the Development Plan
E Statement of Benefits to the City
F Schedules of Fees, Assessments,
Mitigation Measures and Exactions
3. Mutual Benefits. This Agreement is entered into for the purpose of
carrying out the Development Plan for the Project in a manner that will ensure
certain anticipated benefits to both the City (including, without limitation, residents
of the City) and the Developer as set forth in this Section. The City and the
Developer agree that, due to the size and duration of the Project, certain assurances
on the part of each party as to the Project are necessary to achieve those desired
benefits.
3.1 Benefits to the City. The benefits to the City (including,
without limitation, the residents of the City) under this Agreement include, but are
not limited to, those set forth in Exhibit "E" attached hereto.
3.2 Benefits to the Developer. The Developer has expended and
will continue to expend substantial amounts of time and money on the planning of
the Project and the negotiation and acquisition of required land use approvals,
including the annexation of the Property by the City. In addition, the Developer will
expend substantial amounts of time and money in constructing public improvements
and facilities and in providing for public services in connection with the Project. The
Developer would not make such additional expenditures without this Agreement and
such additional expenditures will be made in reliance upon this Agreement. The
benefit to the Developer under this Agreement consists of the assurance that the
Developer will preserve the right to develop the Property as planned and as set forth
in the Development Plan.
4. Interest of the Developer. The Developer represents that the
Developer owns fee title to the Property.
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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.
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 owner of such Property.
7. Term. The term of this Agreement shall commence upon the
Effective Date and shall continue until all permits and approvals required to
complete the development of the Project as contemplated by the Development Plan
have been issued and the Developer shall have exercised its rights thereunder,
provided that in no event shall such term exceed twenty-five (25) years following the
Effective Date of this Agreement as to those lots or parcels of the Property under
this Agreement, if any, for which a grading or building permit has either not been
issued or has otherwise expired. Notwithstanding the foregoing, as to any lot or
parcel on the Property not subject to the preceding sentence, the term of this
Agreement and the Development Plan regulations and specifications thereunder
shall remain in effect for a period of ten (10) years commencing on the date that this
Development Agreement would have otherwise expired. Expiration of the term of
this Agreement shall not in any manner affect rights which have otherwise vested
under applicable law.
8. Hold Harmless.
8.1 By the Developer. The Developer shall hold the City, its
officers, agents, employees, partners 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.
8.2 By the City. The City shall hold the Developer, its officers,
agents, employees, partners and representatives harmless from liability for damage or
claims for damage for personal injury, including death and claims for property
damage, which may arise from the wrongful or negligent activities of the City or
those of the City's contractors, subcontractors, agents, employees or other persons
acting on the City's behalf which relate to the Project.
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9. Vested Right. By entering into this Agreement the City grants to the
Developer a vested right to proceed with the Project in accordance with the
Development Plan, subject to any remaining discretionary approvals required in
order to complete the Project as contemplated by the Development Plan (such
approvals to be granted by the City in accordance with the City's Discretion), and
subject to the conditions set forth on Exhibit "F" hereto. By entering into this
Agreement and relying thereupon, the City is securing certain public benefits which
help to alleviate potential problems in the City and enhance the public health, safety
and welfare. The City therefore agrees to the following:
9.1 No Conflicting Enactments. Neither the City Council of the
City nor any other agency of the City shall enact an ordinance, policy, rule,
regulation or other measure applicable to the Project which relates to, or
adversely affects, the rate, type, manner, costs, timing or sequencing of the
development or construction of all or any part of the Project or which is
otherwise in conflict with this Agreement.
9.2 Intent of Parties. In addition to and not in limitation of the
foregoing, it is the intent of the Developer and the City that no moratorium or
other limitation (whether relating to the rate, type, manner, timing or sequencing
of the development or construction of all or any part 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, site development permits, 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 apply to the Project to
the extent such moratorium or other limitation is in conflict with this Agreement.
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 this Agreement, the Developer shall have no recourse against the City
pursuant to this Agreement, but shall retain all other rights, claims and causes of
action at law or in equity which the Developer may have independent of 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.
The City agrees to cooperate with owner in all reasonable manners in order to
keep this Agreement in full force and effect and to provide to the Developer the
benefits intended to be provided pursuant to this Agreement.
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10. Development of the Project.
10.1 Annexation. The City and the Developer shall cooperate
and use their best efforts to cause (i) the City's sphere of influence to be
extended to encompass all of the Property, and (ii) the entire Property to be
annexed into the City, subject only to terms, conditions, mitigation measures and
exactions set forth in the Development Plan and Exhibit "F' hereto.
10.2 Project. While this Agreement is in effect, the Developer
shall have a vested right to develop the Project in accordance with the terms and
conditions of this Agreement, and in accordance with, and to the extent of the
Development Plan, but subject to any remaining discretionary approvals required
in order to complete the Project as contemplated by the Development Plan
(such approvals to be given to the Developer by the City in accordance with the
exercise of the City's Discretion).
10.3 Phasing and Timing of Development. The parties currently
anticipate that the Project will be phased and constructed in approximately six
(6) phased increments over an approximate twenty-five (25) year period in
accordance with the Project Phasing Plan, at the present time the Developer
cannot predict when or the order in which Project phases will be developed or
whether it will be developed at all. Such decisions depend upon numerous
factors which are not within the control of the Developer, such as market
orientation and demand, interest rates, availability of funding, competition and
other similar factors. 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, so long as the
Project is constructed as an integrated master planned development as
contemplated by the Development Plan and so long as the Developer provides
the mitigation measures applicable to the phases being constructed as set forth
in Exhibit "F" hereto. The Developer retains the right to not develop the Project
at all.
10.4 Effect of Agreement on Land Use Regulations. The rules,
regulations and official policies governing permitted uses of property located in
the City, the density and intensity of use of property, the maximum height and
size of proposed buildings and the design, improvement and construction
standards and specifications applicable to development of such property are
those rules, regulations and official policies in force as of the Agreement Date,
as set forth in the City's General Plan and the Specific Plan, and those rules,
regulations, and official policies which may hereinafter be adopted by the City in
accordance with Section 10.1 hereof, or State or Federal laws, statutes,
regulations, policies or orders as provided in Section 11.2.
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10.5 Approvals; Cooperation. 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 possible and which complies and is consistent with the
Development Plan and the standards, terms and conditions contained in this
Agreement, and in a manner which will not interfere with the development of
the Project for the uses, and with the heights, densities and intensities, specified
in this Agreement or with the rate of development selected by the Developer.
The City shall accept for processing and timely review and act on all applications
for further land use entitlement approvals with respect to the Project called for
or required under this Agreement in as expeditious a manner as is possible.
10.6 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 and performance of the parties under this Agreement. The parties desire
to retain a certain degree of flexibility with respect to the details of the Project
development and with respect to those items covered in general terms under this
Agreement. If and when the parties find that minor changes or adjustments are
necessary or appropriate, they shall, unless otherwise required by law, effectuate
such changes or adjustments through administrative amendments approved by
the City Manager or designee, which, after execution, shall be attached hereto as
an addenda and become a part hereof, and may be further changed and
amended from time to time as necessary, with approval by the City Manager and
the Developer. Minor changes or amendments shall be those which are
consistent with the overall intent of the Development Plan and which do not
materially alter the overall nature, scope, or design of the Project, including,
without limitation, minor changes in locations of buildings, streets, or
infrastructure, configuration of parcels or lots, or phasing of development or
phasing of provision of infrastructure or other exactions. 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. Notwithstanding the foregoing, the following matters shall not be
considered minor administrative changes or amendments, but shall be considered
substantive amendments which shall be reviewed by the Planning Commission
and approved by the City Council:
1215791/11
(a) Addition of permitted uses not substantially similar to
those set forth in the Development Plan;
(b) Material increase in the overall density or intensity of
use or the number of lots;
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(c) Increase in the maximum height and size in permitted
buildings;
(d) Material reduction in the reservation or dedication of
land for public purposes except for minor boundary adjustments approved
by the Planning Director or designee; and
(e) Any amendment or change requiring a subsequent or
supplemental environmental impact report pursuant to Public Resources
Code Section 21166.
10.7 Subdivision Manning. The City shall cooperate (or, for
matters beyond its control, shall use its best efforts) in processing all subdivision,
tract, or parcel maps in accordance with this Agreement and shall not require
exactions or mitigation measures other than those set forth on Exhibit "F' hereto
in connection with such approvals.
10.8 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 to establish a Community Facilities District
("CFD") including the Property for the purpose of acquiring, constructing and
financing, through the sale of bonds, certain public facilities which are necessary
to meet the increased demands placed on the City as a result of the
development of the Property. The parties currently anticipate that such CFD
would be substantially similar in form and approach to the City's Community
Facilities District Number 93-1. 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 Allotting Act of
1972, or any and all other available public financing mechanism: to provide
public conduit financing for the construction of public 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 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.
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10.9 Water and Sewer Facilities. The parties anticipate that the
Property will be serviced with respect to water and sewer by the Eastern
Municipal Water District. However, the City has expressed its interest in
considering providing service to the Property and the City and the Developer
shall continue ongoing discussions intended to determine whether the City
services would be feasible and in the mutual interests of the City and the
Developer.
10.10 Public Services and Facilities. As provided by the Specific
Plan, the Project provides for an integrated roadway system, and public facilities
in addition to water and sewer facilities as discussed in Section 10.6 above,
including parks, schools, storm drain, police protection and fire protection. To
the extent that the Developer, at the City's request, constructs, installs or
otherwise provides financing for public facilities or other infrastructure
improvements not required to serve the Project and benefiting lands within the
City outside the Project area of the Property, the City shall adopt (or, to the
extent beyond its control, such as voter approvals or referenda, shall use its best
efforts to adopt) such ordinances as are necessary to create a benefit district or
similar financing mechanism by which a fee, assessment or charge will be
imposed upon such other properties and, concurrently with the development of
such other properties, reimbursed 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. In order to insure that the Project will
function harmoniously with the City's transportation and circulation plan, the
City shall use its best efforts to undertake the upgrade and completion of street
networks to planned standards to accommodate the Project's effects on other
areas of the City in accordance with and under the schedule provided by the
City's Master Plan of Circulation.
10.11 Other Governmental or Quasi -Governmental Permits. The
Developer shall apply for such other permits 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
to the Project under the Development Plan. The City shall fully cooperate with
(or, for matters beyond its control, shall use its best efforts) and assist the
Developer in obtaining such permits and approvals, and, where necessary in
making application for such approvals or permits.
10.12 Consistency Between This Agreement and Current Laws.
The City represents that there are no rules, regulations, ordinances or official
policies of the City enforced as of the date of execution of this Agreement that
would interfere with the completion or use of the Project according to the
Development Plan.
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10.13 Assessments, Fees. Mitigation Measures and Exactions.
The City shall not, without the prior written consent of the Developer, impose
any assessment, fee, mitigation measure or exaction applicable to the
development of the Project or any portion thereof, or impose any fee,
assessment, mitigation measure or exaction as a condition to the implementation
of the Project or any portion thereof, except those existing and proposed
assessments, fees, mitigation measures and exactions set forth on Exhibit "F"
attached hereto, which include, but are not limited to, infrastructure fees for
sewer, water, reclaimed water, fire mitigation, police mitigation, transportation -
circulation, park mitigation, school mitigation, public facilities fees and
signalization fees. The City acknowledges and agrees, after due consideration
and analysis, that the assessments, fees, mitigation measures and exactions set
forth on Exhibit "F" hereto will fully mitigate all adverse impacts resulting from
and reasonably related to development of the Project in accordance with the
Development Plan.
10.14 School Mitigation Agreement. The parties acknowledge
that the Developer has not yet been able to obtain a mutually satisfactory
mitigation agreement with the school districts in whose jurisdiction the Property
is located. The parties shall continue to cooperate with each other to obtain
such agreements as soon as reasonably possible. Once such agreements are
obtained, this Agreement shall be supplemented to include such agreements.
10.15 Reimbursement by the City. The City acknowledges that
the Developer may be required to pay certain fees, assessments and exactions, as
set forth in Exhibit "F' attached hereto, which may be expended for certain
public improvements and other public benefits which will benefit lands within
the City outside the Project area of the Property. 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 benefitted
from the fees, assessments and exactions paid by the Developer pursuant to this
Agreement, the City shall promptly reimburse the Developer for the fees,
assessments and exactions which have been paid by the Developer, to the extent
that such fees, assessments and exactions benefitted lands outside of the
Property, and only to the extent that the City actually receives such fees,
assessments or exactions.
10.16 Subsequent Actions. The City shall process (or, for matters
beyond its control, shall use its best efforts to process), in as expeditious a
manner as is possible for processing such matters, any necessary entitlements to
use, including vesting tentative tract maps, tentative tract maps, parcel maps,
final maps, site development permits, special use permits, conditional use
permits, or other discretionary approvals or entitlements to use contemplated by
the Development Plan, and any grading, construction or other permits filed by
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the Developer in accordance with the substantive development standards set
forth in the Development Plan. If requested by the Developer, the City shall
ratify or re -adopt the General Plan Amendment, the Specific Plan, the
Development Plan or this Agreement in order to provide assurances that this
Agreement shall continue to be effective and binding following completion of
annexation of the Property by the City.
10.17 Changes in Project. The Developer shall not be entitled to
any change, modification, revision or alteration in the Development Plan relating
to the permitted uses of the Property, the density or intensity of use, the
maximum height and size of proposed buildings or the provision for reservation
or dedication of land for public purposes other than those allowable changes,
modifications and alterations permitted under the Development Plan and in
particular the Specific Plan, without review and approval by those agencies of
the City approving the Development Plan in the first instance. Subject to the
foregoing provisions of this Section 10.17, the City acknowledges that the
Developer may seek new entitlements to use and amendments to entitlements to
use in connection with the development of the Project. The approval of any
changes in the Project as set forth in this Section 10.17 shall be in the City's
Discretion and shall be effectuated as set forth in Section 10.5 above.
11. Rules. Regulations and Official Policies.
11.1 New Rules. This Agreement shall not prevent the City from
applying the following new rules, regulations and policies, if applied on a City-
wide basis:
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(a) 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 develop-
ment approvals, or for monitoring compliance with environmental impact
mitigation measures.
(b) 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.
(c) Regulations governing construction standards and
specifications including, without limitation, the City's Building Code,
Plumbing Code, Mechanical Code, Electrical Code and Fire Code.
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(d) Regulations which are not in conflict with the
Development Plan or this Agreement and which would not, alone or in
the aggregate, cause development of the Project to be materially more
burdensome or expensive.
(e) Regulations which are reasonably necessary to protect
public health and safety, provided that to the maximum extent possible
such regulations shall be construed and applied in a manner to preserve
the benefits of this Agreement.
(f) 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.
12. Amendment or Cancellation of Agreement. This Agreement may be
amended or cancelled 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 cancelled 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, subdivision or building regulation or
other applicable law or regulation 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 the rate, manner, cost,
timing or sequencing of any development.
14. Periodic Review of Compliance With Agreement. The City and the
Developer shall review this Agreement at least once every twelve (12) months 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.
Each party agrees to furnish such reasonable evidence of good faith compliance as
the other party in the exercise of its reasonable discretion, may require. The City
shall, at least ten (10) days prior to the commencement of the periodic review by the
City Manager, send to the Developer all staff reports, documents and exhibits to be
121579.V11
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used by the City Manager in connection with such periodic review (or, if such
periodic review results in an appeal or a hearing, as set forth below, all staff reports,
documents and exhibits to be used in connection with such appeal or hearing). 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. The City Manager shall report the results of such periodic review
to the City Council within thirty (30) days after the conclusion thereof. No public
hearing shall be held by the City Manager, Planning Commission or the City Council
with regard to such periodic review; provided, however, that if the City Manager
during such periodic review preliminarily 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.
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 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 all steps reasonably necessary to bring itself into compliance as
required and thereafter diligently pursue such steps to completion, then the City
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shall be deemed to be in default under the terms of this Agreement and 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 once implementation of this Agreement has begun. After
such implementation, the Developer may be foreclosed from other choices it
may have had to utilize the Property and provide for other benefits. 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 terms 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 deprive either party from recovering
appropriate damages in the event that the terms of this Agreement are
breached. The City and the Developer acknowledge that if the Developer fails
to carry out its obligations under this Agreement, the City shall have the right to
refuse to issue any 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.
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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:
with a copy to:
To the Developer:
With a copy to:
The City of Beaumont
550 East 6th Street
P.O. Drawer 158
Beaumont, California 92223
Attn: City Manager
Sabo & Green
6320 Canoga Avenue, Suite 400
Woodland Hills, California 91367
Attn: Andreas G. de Bortnowski, Esq.
Lockheed Corporation
4500 Park Granada Boulevard
Calabasas, California 91399-0220
Attn: Mr. Kendl P. Philbrick
O'Melveny & Myers
400 South Hope Street
Los Angeles, California 90071-2899
Attn: F. Thomas Muller, 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
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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 term 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 thereof (including a
village or individual tract), or parcel or lot so transferred. 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 writing of the transfer of such obligations.
20.2 Release Upon Transfer. Upon the sale, transfer or
assignment of the Developer's rights and interests under this Agreement as
permitted 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 any provision of this Agreement, the parties hereby agree
to cooperate in defending such action. Subject to the terms of the Conditions of
Approval relating to indemnification in the event of legal challenge, each party shall
pay its own expenses in connection with such defense. 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.
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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 fifteen (15) 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 set forth on
Exhibit "F' attached hereto 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:
(a) 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.
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(b) Any Mortgagee which has submitted a request in writing to
the City in the manner specified herein for giving notices, shall be entitled
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to receive written notification from City of any default by the Developer
in the performance of the Developer's obligations under this Agreement.
(c) If 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, City shall provide a copy of that notice to
the Mortgagee within ten (10) days of sending the notice of default to the
Developer. The Mortgagee shall have the right, but not the obligation, to
cure the default. 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 terminate this Agreement.
(d) 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
11.3 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
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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.
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 N and
attached Exhibits "A" through "F" 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.
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.
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The parties have executed this Development Agreement on the date and
year first written above.
"The City"
THE CITY OF BEAUMONT, a
municipal corporation of the State of
California
By:
Jan Leja, Mayor
"The Developer" LOCKHEED CORPORATION, a
California corporation
By:
Kendl P. Philbrick,
Corporate Real Estate Director
SIGNED AND CERTIFIED THAT A COPY OF
THIS DOCUMENT HAS BEEN DELIVERED TO
THE MAYOR OF THE CITY COUNCIL
By:
City Clerk
APPROVED AS TO FORM:
By:
City Attorney
121579.V11 23 9/21/93
EXHIBIT A
LEGAL DESCRIPTION OF PROPERTY
The land referred to in this report is situation in the County of Riverside, State of
California, and is described as follows:
Those portions of Sections 1, 5 and 9, and all of Sections 2, 3, 4, 10 and 11 of
Township 4 South, Range 1 West, those portions of Sections 26 and 28, and all of
Sections 25, 27, 33, 34, 35 and 36 of Township 3 South, Range 1 West, those portions
of Sections 30 and 31 of Township 3 South, Range 1 East, and those portions of
Section 6, Township 4 South, Range 1 East, all of the San Bernardino Meridian, in
the County of Riverside, State of California, according to the respective official plats
of said townships together with that portion of the Potrero of the Rancho San
Jacinto Nuevo y Potrero, in said County and State, according to the plat attached to
the Patent of said land recorded in Book 7 Page 4 of Patents, in the Office of the
County Recorder of San Diego County, California described as a whole as follows:
Beginning at the Northwest corner of said Section 30, Township 3 South, Range 1
East, said corner being a point on the San Bernardino Meridian;
thence Easterly on the North line of said section to the Northeast corner thereof;
thence Southerly on the East line of said Section to the Southeast corner of the
North half of the North half of the Southeast quarter of the Northeast quarter
thereof;
thence Westerly on the South line of said North half of the North half to the East
line of the Northwest quarter of the Southeast quarter of said Northeast quarter;
thence South on said East line to the South line of said Northwest quarter of the
Southeast quarter of the Northeast quarter;
thence Westerly on said South line to the East line of the Northwest quarter of the
Southwest quarter of the Southeast quarter of said Northeast quarter;
thence Southerly on said East line to the Southeast corner of said Northwest quarter
of the Southwest quarter;
thence Westerly on the South line thereof, and on the South line of the North half of
the Southeast quarter of the Southwest quarter of the Northeast quarter of said
Section 30 to the East line of the Southwest quarter of said Southeast quarter of the
Southwest quarter of the Northeast quarter;
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thence South on said East line to the East-West center line of said Section 30:
thence Westerly on said center line to the Northeast corner of Lot 3 of said Section
30;
thence Southerly on the East line of said Lot 3 and continuing on the East line of
Lot 4 of said Section and on the East lines of Lots 1 and 2 of Section 31, in said
Township to the East-West center line of said Section 31;
thence Easterly on last said center line to the center of said section;
thence Southerly on the East line of the Southwest quarter of said Section 31 to the
North line of Section 6 in Township 4 South, Range 1 East of said San Bernardino
Meridian;
thence Westerly on said North line to the Northeast corner of Lot 4 of said Section
6;
thence Southerly on the East line of said Lot 4 and of Lot 5 to the Northeast corner
of the land described in the deed to the Metropolitan Water District of Southern
California recorded July 11, 1933, in Book 131 Page 133 of Official Records;
thence Westerly on the Northerly line of said land to the East line of Lot 1 of said
Section 1, Township 4 South, Range 1 West;
thence Southerly on said East line to the Southeast corner of said Lot 1;
thence Westerly on the South line of said Lot 1 and the South lines of Lots 5 and 6
of said Section 1, to the East line of Section 2 of said Township 4 South, Range 1
West;
thence Southerly on said East line to the North line of Section 12 of said Township;
thence Westerly on said North line to the Northeast corner of Section 11 of said
Township 4 South, Range 1 West;
thence Southerly on the East line of said Section 11 to the Southeast corner thereof;
thence Westerly on the South line of said Section 11 and on the South line of
Section 10 of said Township to the Southwest corner of said Section 10;
thence Northerly on the West line of said Section 10 to the Southeast corner of Lot
10 of Section 9 of said Township;
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thence Westerly on the South line of said Lot 10 and the South lines of Lots 9 and 8
of said Section 9, to the Northeast line of the 400.00 feet wide strip of land shown on
a map filed in Book 36 Page 51 of Record of Surveys, in the Office of the County
Recorder of said Riverside County;
thence North 42°10'17" West, 2,407.27 feet on said Northeast line to an angle point;
thence North 51°02'35" West, 522.39 feet on said Northeast line to the most Easterly
point of the parcel shown as "100.00 feet easement" on the last said map;
thence on the perimeter of said parcel, the following six courses:
South 02°00'20" West, 147.12 feet; South 33°01'40" West, 153.05 feet; North 57°36'00"
West, 21.74 feet to the beginning of a tangent curve, concave Southwesterly of 397.27
feet radius; Northwesterly 78.86 feet on said curve, through a central angle of
11°22'25"; North 33°01'40" East, 134.19 feet; and North 02°00'20" East, 194.59 feet to
said Northeast line of the 400.00 feet strip;
thence North 51°02'35" West, 702.02 feet on said Northeast line to the North line of
said Section 9;
thence Westerly on said North line and the South line of Section 5 of said Township
to an angle point in the South line of Lot 12 of said Section 5;
thence Northwesterly on said South line and the Southwest line of Lots 7 and 11 of
said Section 5 to the West line of said Lot 11;
thence Northerly on the West line of said Lot 11 and the West lines of Lots 2 and 8
of said section to the South line of Section 32 of Township 3 South, Range 1 West;
thence Easterly on said South line to the West line of Section 33 of said Township 3
South, Range 1 West;
thence Northerly on said East line to the Northwest corner of said Section 33;
thence Easterly on the North line of said section to the Southwest corner of the East
half of the Southeast quarter of Section 28 of last said Township;
thence Northerly on the West line of said East half to the North line of said
Southeast quarter;
thence East on the North line of said Southeast quarter to the West line of Section
27 of said Township 3 South, Range 1 West;
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thence Northerly on said West line to the Northwest corner of said Section 27;
thence Easterly on the North line of said section to the Northeast corner thereof;
thence Southerly on the East line to the Southeast corner of said Section 27;
thence Easterly on the South line of Section 26 of said Township to the South
quarter corner of said Section 26;
thence Northerly on the East lines of the Southwest quarter and the Northwest
quarter of said Section to the North quarter corner thereof;
thence Easterly on the North line of said section and the North line of Section 25 of
said Township to the Northeast corner of said Section 25, said corner being a point
on the San Bernardino Meridian;
thence South on said Meridian to the point of beginning;
EXCEPT from that portion within the Northwest quarter of said Section 33,
Township 3 South, Range 1 West the portion described in the deed to the County of
Riverside recorded August 3, 1955, in Book 1776 Page 277 of Official Records;
ALSO EXCEPT from that portion within Lots 7 and 11 of said Section 5, Township
4 South, Range 1 West, the portion described in the deed to the County of Riverside
recorded March 3, 1954, in Book 1560 Page 371 of Official Records;
ALSO EXCEPT from those portions within said Section 11, Township 4 South,
Range 1 West, 1/2 of all mineral rights as reserved in the deed from Theodore F.
Martin and Betty B. Martin, recorded July 16, 1962, as Instrument No. 66330 of
Official Records;
ALSO EXCEPT from that portion within said Section 5, Township 4 South, Range 1
West, an undivided 1/16th of all coal, oil, gas and other mineral deposits as reserved
in the Patent from the State of California, dated March 20, 1930, recorded April 3,
1930, in Book 9 Page 444 of Official Records;
ALSO EXCEPT from those portions within Lots 3 through 14, inclusive, in said
Section 4, Township 4 South, Range 1 West all coal and other minerals together with
the right to prospect for and remove same pursuant to the provisions and limitations
of the Act of December 26, 1916, as contained in Patent from the United States of
America recorded May 15, 1936, in Book 274 Page 518 of Official Records;
ALSO EXCEPT from those portions within said Section 5, Township 4 South, Range
1 West, one per cent of all oil, gas and hydrocarbon substances that may be
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produced therefrom as reserved in the deed from Marie B. Errasmuspe, recorded
February 4, 1941, in Book 492 Page 59 of Official Records;
ALSO EXCEPT from those portions within said Section 27, Township 3 South,
Range 1 West, said Section 4, Township 4 South, Range 1 West, Section 33,
Township 3 South, Range 1 West, Section 34, Township 3 South, Range 1 West
(except that portion lying Easterly of the West lines of lots 4, 13, 16 and the
Southerly prolongation of said West line of Lot 16), Section 5, Township 4 South,
Range 1 West, and the East half of the Southeast quarter of said Section 28,
Township 3 South, Range 1 West, an undivided 50% of all oil, gas and other
hydrocarbon substances as excepted and reserved in the deed from American
Cement Corporation recorded March 29, 1963, as Instrument No. 31411 of Official
Records;
ALSO EXCEPT from that portion within said Section 34, Township 3 South, Range
1 West, which lies Westerly of the West lines of Lots 4, 13 and 16 and the Southerly
prolongation of said West line of Lot 16 and from that portion within Lots 13 and 14
and the South half of the Southwest quarter of said Section 27, Township 3 South,
Range 1 West, all minerals other than oil, gas and other hydrocarbon substances as
excepted and reserved in the deed from American Cement Corporation recorded
March 29, 1963, as Instrument No. 31411 of Official Records;
ALSO EXCEPT from those portions within Lots 14 to 19 in said Section 3 and
within said Section 10, Township 4 South, Range 1 West, all oil and gas as reserved
in the Patents from the United States of America dated November 26, 1962, and
recorded December 7, 1962, as Instrument No's. 113427 and 113428 of Official
Records.
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EXHIBIT B
MAP OF PROPERTY
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Location Map
B-1
EXHIBIT B
MAP OF PROPERTY
EXHIBIT C
THE CITY'S POTRERO CREEK SPECIFIC PLAN
That certain Specific Plan No. 92-1, approved by the City Council of the
City of Beaumont on September 27, 1993, pursuant to Resolution No. 93 -
together with the Conditions of Approval and Mitigation Monitoring Program
attached thereto, and any amendments or modifications thereof adopted in
accordance with the terms and conditions of this Agreement.
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EXHIBIT D
CERTAIN PERMITS AND APPROVALS
CONSTITUTING THE DEVELOPMENT PLAN
1. The General Plan of the City of Beaumont, as in effect on the
Effective Date.
2. The EIR and the Mitigation Monitoring Program.
3. The ordinances and related actions pursuant to which the Property
is annexed into the City of Beaumont.
4. The ordinance pursuant to which the City's Zoning Ordinance is
amended to include the Property as an "SPA (Specific Plan Area) Zone".
5. The Specific Plan, together with its Conditions of Approval.
6. This Agreement.
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EXHIBIT E
STATEMENT OF BENEFITS TO THE CITY
1. Upon implementation, the Project will provide a wide variety of
attractive housing types and densities to help satisfy anticipated demand for housing
for many years.
2. The Project will result in substantial net revenues to public
agencies through increased property taxes from development of the site.
3. The Project will substantially increase sales tax revenue for the
City of Beaumont through retail sales both within the Property and in other parts of
the City and surrounding areas.
4. Development of the Project will generate a substantial number of
new permanent and temporary employment opportunities in the City of Beaumont.
5. The Project will provide a six -acre civic center site for the location
of police, fire, postal and library facilities for the City of Beaumont.
6. The Project will provide substantial recreational public facilities to
include parks, sports facilities and open space to the City of Beaumont.
7. The Project will permanently preserve large areas of natural
scenery and wildlife refuge.
8. The Project is consistent and compatible with other uses in the
vicinity of the project, and with community goals in general.
9. The Project will contribute to roadway and other infrastructure
improvements consistent with the City's General Plan and Master Circulation Plan.
10. The Project will be designed and landscaped so as to provide and
preserve an aesthetically pleasing environment compatible with surrounding land
uses and the site's natural setting.
11. The overall planning of the Project provides an opportunity to
comprehensively plan for a substantial portion of anticipated growth in the City of
Beaumont in a coordinated and interrelated, not piecemeal, fashion.
12. The intensity of the Project is appropriate for the location and is
consistent with the City of Beaumont General Plan.
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EXHIBIT F
SCHEDULES OF FEES, ASSESSMENTS, MITIGATION MEASURES
AND EXACTIONS
I. FEES.
Processing fees for applications shall be those charged for all similar
applications in the City of Beaumont, and shall be limited to reimbursing the
City for costs directly related to analyzing, evaluating and processing the
applications.
Impact fees not otherwise provided for in this Agreement shall be limited to
those which are charged for development projects in the City of Beaumont
generally, shall be equitable, fair, and directly related and proportional to
impacts of the development, and shall not be inconsistent with the provisions or
purposes of this Agreement.
II. LOCKHEED CORPORATION POTRERO CREEK SPECIFIC PLAN
CONDITIONS OF APPROVAL: ASSESSMENTS AND EXACTIONS.
GENERAL CONDITIONS
1. The following conditions of approval are for the POTRERO CREEK SPECIFIC
PLAN and consist of Conditions 1 through 43 inclusive.
2. The Potrero Creek Specific Plan shall consist of the following, components as
approved through City of Beaumont City Council Resolution No. 93-
a. Approved Potrero Creek Specific Plan Text.
b. Exhibit "B": Mitigation Reporting/Monitoring Program.
c. Exhibit "C": Specific Plan Conditions of Approval and Mitigation
Monitoring Program.
3. If any of the following conditions of approval differ from the specific plan text or
exhibits, the conditions enumerated herein shall take precedence.
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4. Mitigation measures for impacts to the Beaumont Unified School District and
any other districts which may ultimately serve the project shall be identified
prior to the approval of implementing tentative subdivision maps and plot plans
in accordance with the State laws and City Council policies in effect at the time
of application submittal.
5. The development standards contained in the approved Specific Plan shall
become the prevailing land use regulations for the areas contained within the
Potrero Creek Specific Plan. These regulations will have full force of the
Zoning Ordinance of the Beaumont Municipal Code through application of the
SPA (Specific Plan Area) Zone. Where conflicts exist between approved
Specific Plan and the Beaumont Zoning Ordinance, the Specific Plan regulation
shall prevail. Subject to the vesting effect of the Development Agreement,
where conflicts existing between the Specific Plan and the provisions of the
Municipal Code, other than the Zoning Ordinance, the provisions of the
Municipal Code shall prevail.
6. Development applications for development portions of the Specific Plan area
which incorporate common areas shall be accompanied by design plans for the
common area. Such plans shall specify the location and extent of landscaping
and irrigation systems. Additionally, all circulation components (vehicular,
pedestrian and/or equestrian) shall be indicated, and the approximate locations
of structures or groups of structures shall be indicated.
7. A parcel map filed for the purposes of phasing or financing shall not be
considered a development application for the purpose of these conditions.
8. The Planning Director may require special studies or reports in connection with
implementing development applications for each planning area, if and to the
extent reasonably necessary for appropriate review of a development application
or as required under applicable law (subject to the vesting effect of the
Development Agreement). Such reports may include, where appropriate:
Study/Report
a. Hazardous Waste Investigation Study
b. Preliminary Soils and Geotechnical Report
c. "Spring" Biological Survey, if deemed necessary
d. Erosion and Sedimentation Control Plan
e. Streetscape, parkway and median landscape plan
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f. Fencing and wall plan
g.
Traffic and circulation assessment to document adequacy/function of
proposed improvements
h. Illustration of wildlife corridors on the map or other entitlement
document or exhibit
i. Fuel modification plan
j. Acoustical Study
k. Cultural Resource Assessment
9. Common areas identified in the Specific Plan shall be owned and maintained as
follows:
a. One or more permanent master maintenance organizations(s) shall be
established for all common areas, to assume ownership and maintenance
responsibility for all common recreation, open space, circulation systems
and landscaped areas. Such organizations may be public or private.
Assumption of such responsibilities by existing local, area -wide or regional
organizations shall satisfy this condition provided that such organizations
are legally and financially capable of assuming such responsibilities.
Private neighborhood associations may be established for residential
developments containing common areas.
b. Unless otherwise provided for in these conditions of approval, or
permitted by the Planning Director, the relevant maintenance
organization shall be established and common areas shall be conveyed to
the maintenance organization not later than thirty days after completion
of construction of common area improvements.
10. If any of the permanent master maintenance organizations referenced in
Condition of Approval No. 9 is a public organization, the developer shall comply
with the following conditions:
a. Not later than thirty days after completion of construction of the relevant
common area improvements, the applicant shall convey to such
organization or the City, as appropriate, fee simple title to all common or
common open space areas, free and clear of all liens, due but unpaid
taxes, assessments, leases (recorded and unrecorded) and easements,
except those easements which in the reasonable judgment of the City
would not interfere with the intended use of such area. As a condition
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precedent to the City accepting title to such areas, the subdivider shall
submit the following documents to the Planning Director and City
Attorney:
1) A declaration of covenants, conditions and restrictions; and
2) A sample form of document for conveying title to the purchaser of
an individual lot or unit which provides that the declaration of
covenants, conditions and restrictions is incorporated therein by
reference.
b. The declaration of covenants, conditions and restrictions submitted for
review shall (i) provide for a term of not less than 60 years, (ii) provide
for the establishment of a property owners' association comprised of the
collective owners of any applicable common area and (iii) contain
provisions substantially in the following form:
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1) The property owners' association conditionally required herein shall, if
not then formed or in good standing, be activated, by incorporation or
otherwise, at the request of the City of Beaumont, and thereafter the
property owners' association shall unconditionally accept from the
City, upon demand, title to all or any part of the `common area,'
more particularly described on Exhibit " attached hereto, provided
that such common area is in substantially the same physical
condition and state of title as it was when conveyed by the applicant
to the City of Beaumont. 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 of Beaumont.
2) 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,' shall manage and continuously maintain
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. The property owners' association shall have the
right to assess the owners who default in the payment of a
maintenance assessment and upon the recordation of a notice of
default assessment, the property owners' association shall have a lien
securing payment of such assessment, which lien shall be
forecloseable by the property owners' association by power of sale in
the same manner as a deed of trust may be foreclosed. Such a
default assessment lien, once notice is recorded, shall be prior to all
other liens recorded subsequent to recordation of the notice.
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3) This Declaration shall not be terminated, substantially amended or
property de -annexed therefrom absent the prior written consent of the
Planning Director. A proposed amendment shall be considered
`substantial` if it materially affects the extent, usage or maintenance of
the `common area.'
4) 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."
c. Once approved, the declaration of covenants, conditions and restrictions
shall be recorded at the same time that the final map is recorded.
11. If the permanent master maintenance organization referenced in Condition of
Approval No. 9.a. is a private organization, the developer shall comply with the
following condition:
a. Prior to recordation of any final subdivision map or issuance of building
permits in the case of use permits and plot plans, the subdivider shall
submit the following documents to Planning Department for review,
which documents shall be subject to the approval of that Department and
the City Attorney:
1) A declaration of covenants, conditions and restrictions; and
2) A sample form of document for conveying title to the purchaser of
any individual lot or unit which provides that the declaration of
covenants, conditions and restrictions is incorporated therein by
reference.
b. The declaration of covenants, conditions and restrictions submitted for
review shall (i) provide for a term of not less than 60 years, (ii) provide
for the establishment of a property owners' association comprised of the
owners of each individual lot or unit and (iii) provide for ownership of
the common area by either the property owners' association of the owners
of each individual lot or unit as tenants in common and (iv) contain
provisions substantially in the following form:
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1) The property owners' association established herein shall manage and
continuously maintain the `common area,' more particularly described
on Exhibit " attached hereto, and shall not sell or transfer the
`common area' or any part thereof absent the prior written consent of
the Planning Director.
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2) The property owners' association shall have the right to assess the
owners of each individual lot or unit for the reasonable costs of
maintaining such `common area.' The property owners' association
shall have the right to assess the owners who default in the payment
of a maintenance assessment and upon the recordation of a notice of
default assessment, the property owners' association shall have a lien
securing payment of such assessment, which lien shall be
forecloseable by the property owners' association by power of sale in
the same manner as a deed of trust may be foreclosed. Such a
default assessment lien, once notice is recorded, shall be prior to all
other liens recorded subsequently to recordation of the notice.
3) This Declaration shall not be terminated, 'substantially' amended or
property de -annexed therefrom absent the prior written consent of the
Planning Director. A proposed amendment shall be considered
'substantial' if it materially affects the extent, usage or maintenance of
the 'common area.'
4) 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."
c. Once approved, the declaration of covenants, conditions and restrictions
shall be recorded at the same time the final map is recorded.
12. A commercial property owners association or appropriate entity shall be
developed separately for each commercial area including Planning Areas 4, 10,
14, 16 and 21 as shown on Figure 11 of the Specific Plan document. Criteria for
the commercial property owners association shall be developed in conjunction
with each commercial development. Each commercial property owners'
association will be developed prior to the issuance of certificates of occupancy
for the first building for each commercial area.
13. Prior to the recordation of any final subdivision map, or building permits being
issued in the case of conditional use permits and plot plans, the applicant shall
submit to the Planning Department the following documents which shall
demonstrate to the satisfaction of the City that the appropriate individual
property owners' associations will be established and will operate in accordance
with the intent of these conditions of approval;
a. The form of document to convey title; and
b. Covenants, Conditions and Restrictions to be recorded.
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14. Prior to issuance of a building permit for the construction of any use
contemplated by this approval, the applicant shall first obtain clearance from the
Planning Department that all pertinent conditions of approval of the specific
plan have been satisfied for the subject phase of development.
15. If and to the extent required by applicable law, an environmental assessment
shall be conducted for each subsequent development applications including, but
not limited to, parcel map, tract, change of zone, plot plan, use permit, variance
or specific plan amendment. Said environmental assessment shall, to the
greatest extent feasible under the California Environmental Quality Act
(CEQA), utilize the evaluation of impacts addressed in the EIR prepared for the
Potrero Creek Specific Plan.
16. Prior to the submittal of any subsequent development applications or the
issuance of any permits twenty (20) copies of the final specific plan document
shall be submitted to the Planning Department for distribution. The documents
shall include the final City Council resolution, the final Specific Plan conditions
of approval, and the Final EIR, and any corrections, modifications or additions
resulting from the hearing approval process.
17. The Potrero Creek Specific Plan shall remain unmodified (except for
modifications requested by the applicant and approved by the City) for 25 years
as indicated in the Phasing portion of the specific plan text. Should the entire
project not be built out in that period of time, the City shall be entitled to adopt
specific plan amendments for any portion of the project which has not been
constructed within 25 years.
18. The applicant (or its successor -in -interest, as the case may be) shall defend,
indemnify, and hold harmless the City of Beaumont, its agents, consultants,
officers, and employees from any third -party claim, action or proceeding against
the City of Beaumont or its agents, consultants, officers, or employees to attach,
set aside, void or annul an approval of the City of Beaumont, its advisory
agencies, appeal boards or legislative body concerning the Potrero Creek
Specific Plan. The City of Beaumont will promptly notify the applicant or its
successor of any such claim, action, or proceeding against the City of Beaumont
and will cooperate fully in the defense.
19. Applicant shall defend, indemnify and hold harmless the City of Beaumont and
its employees, agents, consultants, officers and contractors from any third -party
claim, action or proceeding related to the environmental documentation
pursuant to the California Environmental Quality Act associated with the
Potrero Creek Specific Plan.
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20. In conjunction with each tentative subdivision map, the applicant shall submit
sufficient information in the form of an environmental site assessment to ensure
that the subject area is devoid of any toxic and hazardous materials, or that
remediation has been accomplished or is underway where such substances have
been present. Completion of remediation of a subject area may be a tentative
map condition if, in the City's reasonable judgment, incompletely remediated
hazardous materials in such area would pose a hazard to residents of such area.
21. In accordance with Section 711.4 of the California Fish and Game Code, the
Applicant/subdivider is obligated to pay a filing fee to defray cost incurred by
the Department of Fish and Game in managing and protecting fish and wildlife
trust resources. The Applicant/subdivider is also obligated to pay a
documentary handling fee to defray costs incurred by the City of Beaumont in
implementing the Department of Fish and Game filing fee program. These fees
shall be paid to the County Clerk of the County of Riverside at the time of filing
a notice of determination pursuant to Section 21152 of the Public Resources
Code. Applicant shall not be entitled to exercise its rights under the Specific
Plan or the Development Agreement until such fees have been paid. The
amount of the fees shall be in accordance with legally adopted fees at the time
of the filing of the notice of determination.
LAND USE CONDITIONS
22. The Specific Plan may be developed up to a maximum yield of 11,870 dwelling
units. Densities for each Planning Area shown in Figure 11 of the Specific Plan
shall be determined through the appropriate development application, based
upon, but not limited to, the following:
a. Adequate availability of services;
b. Adequate access and circulation;
c. Sensitivity to land forms;
d. Innovation in housing types, design, conservation, or opportunities; and
e. Sensitivity to neighborhood design through appropriate lot and street
layouts.
Applicant shall, however, be permitted, through the density transfer provisions
contained in the Specific Plan, to achieve the overall maximum densities for
each village specified in the Specific Plan.
23. Lots created pursuant to this specific plan shall be in conformance with the
development standards of the SPA zone as established by this Specific Plan and
the corresponding Planning Area standards for each Planning Area.
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24. All grading within the specific plan shall be performed in accordance with the
following conditions and development criteria:
a. All grading shall take place in accordance with the City's adopted policies
in effect at the time permits are issued (unless such policies are materially
more burdensome than the policies in effect as of the date of the
adoption of the Development Agreement) and the grading criteria
contained in the Specific Plan.
b. Where cut and fill slopes are created in excess of 5 feet in vertical cut
height or 3 feet in vertical fill height, detailed landscaping and irrigation
plans shall be submitted to the City prior to approval of grading plans.
The plans will be reviewed for type and density of ground cover, seed
mix, plant materials, staking details, and sizes and irrigation systems.
25. Applicant shall incorporate the following defensible space concepts into the
design of projects which shall be included within all development plans and
reviewed and approved by the City Police Department prior to approval of
implementing projects:
a. Circulation for pedestrians, vehicles and police patrols.
b. Lighting of streets, walkways, bikeways, and commercial and industrial
areas.
c. Visibility of doors and windows from the street and between buildings.
d. Fencing heights and materials.
26. In the event that, during or following grading of the project site or portions
thereof, economic or other conditions prevent the Applicant from continuing
with the project within a reasonable amount of time, as determined by the City,
the City shall so notify the Applicant who shall contact the City Planning
Department to identify necessary activities that the Applicant must implement to
protect public safety and minimize/prevent environmental degradation,
particularly due to wind and water erosion. The Applicant shall be required to
reimburse the City for the cost of activities to satisfy this condition.
27. Prior to the submittal of the first implementing tentative subdivision map or
within one year of approval of the Specific Plan, whichever occurs first, a
complete architectural design manual shall be submitted for the approval of the
Planning Commission. This manual shall set forth the architectural standards for
the entire Potrero Creek Specific Plan and the various products and phases
thereof. The focus of the design manual shall be upon the establishment of a
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project -wide architectural ethic, and the creation o. guidelines which will assure
adherence to the goals of the project to create a quality community. Upon
approval of the Planning Commission, the design manual shall become part of
the Specific Plan regulations and shall be adhered to in all development in the
project and each planning area. The precise content of the design manual will
be determined by the Planning Director. Direct staff costs in the review of the
architectural manual shall be borne by the applicant, on a cost -recovery basis to
the City.
28. Prior to the submittal of the first implementing tentative subdivision map or
within one year of approval of the Specific Plan, whichever occurs first, a
complete landscape design manual shall be submitted for approval of the
Planning Commission. The focus of the design manual shall be upon the
development of guidelines which will be applicable to all of the project's product
types and development phases and to ensure that the project is landscaped in a
manner which is harmonious with the site's natural setting and aesthetic
character. Furthermore, the design manual shall be sensitive to and reflect the
mitigation measures contained in the EIR relative to biologically sensitive
interfaces. The precise content of the landscape design manual shall be
determined by the Planning Director, and shall include plans for walls and
fences project -wide and standards for minimum plant material and tree sizes.
Direct staff costs associated with the review of the landscape design manual shall
be borne by the Applicant on a cost -recovery basis to the City.
29. Density transfer within the various components of the project and planning areas
shall be subject to the limitations contained in the Administrative section of the
Potrero Creek Specific Plan. In conjunction with any request to transfer density,
the Applicant shall submit a report outlining the status of the entire project in
terms of (a) areas developed and undeveloped, (b) density previously
transferred, and (c) quantitative impact on remaining development entitlement
allocations.
30. Each Applicant shall use its best efforts to ensure that all construction
contractors and subcontractors properly dispose of all wastes generated in
permitted landfills or with a licensed recycling company. If any improper
dumping of construction waste occurs, the Applicant of the portion of the
Specific Plan area from which such wastes were taken shall guarantee
reimbursement to the City of costs incurred by it associated with clean up,
proper disposal, any necessary revegetation and legal penalties and remedies.
31. Construction areas shall be fenced as required by the City to preclude the
creation of an attractive nuisance and to limit access to and disturbance of
sensitive habitat areas.
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PHASING CONDITIO
32. Construction of the development permitted hereby, including recordation of final
subdivision maps, may be conducted progressively in stages, provided adequate
vehicular access, infrastructure and public services are provided for all dwelling
units and non-residential land uses in each stage of development, and further,
provided that such phase of development conforms substantially with the intent
and purpose of the Specific Plan Master Phasing Program and subsequent
amendment as determined by the Planning Director.
PARKS AND RECREATION CONDITIONS
33. Development of the property shall be accompanied by the concurrent phased
dedication and improvement of not less than 141 acres of parks, as specified in
the Park and Recreation Plan of the Potrero Creek Specific Plan. That phased
dedication shall be to the City for maintenance by a Community Services
District, and shall occur in six increments:
a. Prior to the issuance of any occupancy permits for Phase 1A of the
development, Applicant shall dedicate to the City the 10 -acre Recreation
Lake and 18 -acres of Neighborhood parks as shown as Figures 26 and 27
of the Potrero Creek Specific Plan.
b. Prior to the issuance of any occupancy permits for Phase 1B of the
development, applicant shall dedicate 18 -acres of the Sports Park
described as Figure 27.
c. Prior to the issuance of any occupancy permits for Phase 2A of the
development, applicant shall dedicate to the City 16 acres of
Neighborhood parks as shown at Figure 26.
d. Prior to the issuance of any occupancy permits for Phase 2B of the
development, applicant shall dedicate to the City 16 acres of
Neighborhood parks and 10 acres of the Sports Park, as shown on Figures
26 and 27.
e. Prior to the issuance of any occupancy permits for Phase 3A of the
development, applicant shall dedicate to the City 11 acres of
Neighborhood parks and the 15 acre Equestrian Center as shown on
Figure 26.
f. Prior to the issuance of any occupancy permits for Phase 3B of the
development, applicant shall dedicate to the City 8 acres of Neighborhood
parks and 19 acres of Community Trails as shown on Figure 26.
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34. Prior to the dedication of any park and recreation areas the applicant shall
submit and the Planning Director shall approve for each dedication a detailed
development plan for proposed park and recreation improvements. Each
development plan shall include:
a. Site Plan
b. Grading Plan
c. Landscape, Lighting and Irrigation Plan
d. Architectural Plans, where appropriate
e. Detailed Cost Estimates
f. Other Plans as determined appropriate by the Planning Director
35. The park sites required through Condition No. 33 shall be delivered in a finished
condition, with grading, utilities and public infrastructure improvements fully in
place. In addition, applicant shall be solely responsible for all improvements at
each of the park sites stipulated in Condition No. 33 in accordance with Figures
26 and 27, Table 6 of the Specific Plan, and the Public Facilities Financing Plan
referred to in Condition No. 40. Each completed park site shall be delivered
prior to issuance of occupancy permits for the respective phase of the Specific
Plan.
36. Prior to recordation of the first implementing subdivision map, applicant shall
obtain City and LAFCO approval for the formation of a Community Services
District or other appropriate financing mechanism to ensure the perpetual
maintenance of dedicated lands for parks and recreational purposes, and for
maintenance of other landscaped areas contained within public rights-of-way, or
held in fee title by the City of Beaumont. In lieu of a Community Services
District, applicant may provide or obtain approval for an alternate financing
mechanism for such purposes reasonably acceptable.
37. The two passive neighborhood parks as shown on Figure 26 of the Specific Plan
shall be improved and dedicated to the City prior to the issuance of occupancy
permits for Phase IIIA. Improvements shall be limited to pedestrian and
equestrian trail access and barriers designed to preclude motorized vehicles from
these sensitive areas.
CIVIC CENTER CONDITIONS
38. Prior to the issuance of grading permits for Phase 1A of the development,
applicant shall dedicate to the City 6 acres for use as Civic Center site, as shown
on Figure 11.
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39. Applicant is not responsible for the improvements, if any, to be constructed at
the Civic Center site as described in Condition 38.
INFRASTRUCTURE CONDITIONS
40. Within one (1) year of the approval of the Specific Plan, the Applicant shall
submit a Public Facilities Financing Plan (PFFP) for review by the Planning
Director. The plan shall provide engineering cost estimates for the backbone
infrastructure facilities for each master phase of development and shall include
an estimate of development costs for the following public improvements:
a. Roads
b. Public Parks
c. Right -of -Way Landscaping
d. Wastewater Collection and Treatment Systems
e. Domestic and Reclaimed Water Systems
f. Utilities
g. Drainage and Flood Control Facilities
h. Environmental Mitigation for Public Improvements
Subsequent to the review of the Planning Director, the PFFP shall be presented
to the City Council for approval.
41. Prior to the issuance of grading permits for Phase I.A. (and not in any event
later than the tenth anniversary of annexation of the Property into the City) the
applicant shall have secured all necessary financing and complied with statutory
requirements necessary to finance and construct the Phase I improvements
identified in the approved Public Facilities Financing Plan. In the event of non-
compliance with this condition or non-compliance with Condition No. 40, the
City shall so notify Applicant, who shall have ninety days to perform such
condition. If Applicant fails to perform such condition within such ninety day
period, an administrative hearing shall be held before the City Council within 45
days. If upon hearing relevant testimony the City Council determines non-
compliance with said conditions, the City Council may cause nullification of the
Specific Plan approval with appropriate findings.
42. Drainage and flood control facilities and improvements shall be provided in
accordance with Riverside County Flood Control and Water Conservation
District requirements.
43. An amendment to CEQA required the preparation of a program to ensure that
all mitigation measures are fully and completely implemented. The
Environmental Impact Report (EIR) prepared for the Potrero Creek Specific
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Plan imposes certain mitigation measures on the project. Certain conditions of
approval for the Potrero Creek Specific Plan constitute self contained
reporting/monitoring programs for certain mitigation measures. At the time of
approval of subsequent development applications, further environmental
reporting/monitoring programs may be required if additional mitigation is
determined to be necessary through further environmental review. The
mitigation monitoring program for the Potrero Creek Specific Plan EIR is
hereby incorporated and performance of the mitigation measures set forth
therein is a condition of approval of the Specific Plan.
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