HomeMy Public PortalAboutOrdinance 864ORDINANCE NO. 864
AN UNCODIFIED ORDINANCE OF THE CITY COUNCIL OF THE ITY
OF BEAUMONT, CALIFORNIA, ADOPTING THE DEVELOPME T
AGREEMENT BETWEEN THE CITY OF BEAUMONT AND
ROLLING HILLS INDUSTRIAL, LLC, IN CONNECTION WIT
THE ROLLING HILL RANCH SPECIFIC PLAN, AMENDMENT N I. 2
(PURSUANT TO GOVERNMENT CODE SECTIONS 65864-65869 5)
WHEREAS, in order to strengthen the public planning process, to encourag, private
participation in comprehensive planning, and the reduce the economic risks of develspment, the
Legislature of the State of California has adopted Sections 65864 through 65869.5 o the
Government Code which authorize the City of Beaumont (hereinafter referred to as ` City") to
enter into a Development Agreement; and
WHEREAS, the Beaumont City Council certifies that an Addendum to the
Ranch Environmental Impact Report No. EIR 03-1, certified by the Beaumont City
2000, has been prepared for the Beaumont Retail Partners Specific Plan, and the Cit
finds that the findings made in connection with said EIR Addendum are applicable
address the environmental implications associated with the subject actions; and
WHEREAS, the applicant, Rolling Hills Industrial, LLC, proposed and sub
City staff has reviewed and negotiated the Development Agreement between Rolling
Industrial, LLC, to govern the development of the Rolling Hills Ranch Specific Plan,
No. 2; and
WHEREAS, duly noticed public hearings were conducted on this matter as
law by the Planning Commission on May 11, 2004 and the City Council on May 18,
Planning Commission recommends that the City Council approve the proposed Dev
Agreement based upon the following findings:
1. The proposed agreement is consistent with the objectives, policies, g
uses and programs specified in the Beaumont General Plan;
2. The proposed agreement facilitates land uses which are compatible
authorized in, and the regulations prescribed for, the land use districts in whi
property is located;
3. The proposed agreement is in conformity with public convenience, g
and good land use planning practice;
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ORDINANCE NO. 864
Page 2
4. The proposed agreement will not be detrimental to the health, safety and general
welfare;
5. The proposed agreement will not adversely affect the orderly development of the
property or the preservation of property values;
6. The proposed agreement will facilitate quality master planned development which
will aid in the economic development of the City; and
7. The proposed agreement will not have an adverse impact on the environment.
WHEREAS, the City Council of the City of Beaumont has reviewed the reasons for the
recommendation of approval by the Planning Commission as described above.
THEREFORE, THE CITY COUNCIL OF THE CITY OF BEAUMONT DOES HEREBY
ORDAIN AS FOLLOWS:
SECTION 1: It has been determined that:
A. The provisions of the Development Agreement between the City and Rolling Hills
Industrial, LLC, are consistent with the General Plan; and
B. The Development Agreement complies with all applicable zoning, subdivision and
building regulations and with the Rolling Hills Ranch Specific Plan; and
C. The Development Agreement states the duration of the Agreement shall be a
period of 25 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,
dedication and improvement of land uses for public facility uses.
SECTION 2: The Development Agreement between the City and Beaumont Rolling Hills
Industrial, LLC attached hereto as Exhibit "A" is hereby approved and the Mayor of the City of
Beaumont is authorized and directed to execute said Development Agreement on behalf of the
City 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 a
newspaper of general circulation, printed and published in the City of Beaumont, in a manner
prescribed by law for publishing of ordinances of said City.
ORDINANCE NO. 864
Page 3
MOVED, PASSED AND ADOPTED THIS 1st DAY OF June
2004, BY THE FOLLOWING VOTE:
AYES: Mayor Dressel, Council Member Fox, Berg, DeForge, and Killough.
NOES: None.
ABSTAIN: None.
ABSENT: None.
,
ad./
• '. CITY OF : 1
AMENDMENT AND RESTATEMENT 01? DEVELOPMENT AGREEMENT
(Crossroads Industrial Park)
This Amendment and Restatement of Development Agreement (hereinafter
"Agreement") is entered into effective on the date it is recorded with the Riverside County
Recorder (hereinafter "Effective Date") by and between the City of Beaumont (hereinafter
"City") and Rolling Hills Industrial, LLC, a California limited liability company (hereinafter
"Owner"). This Agreement is entered into with reference to the following Recitals:
RECITALS
A. City and Owner's predecessor -in -interest entered into a Development Agreement
recorded on February 9, 1994 as Instrument No. 56818 of Official Records, Riverside County
Recorder (the "Development Agreement").
B. The Development Agreement applied to certain unimproved real property
consisting of approximately one hundred sixty (160) acres located in the City as described on
Exhibit "A" and shown on Exhibit `B" attached and incorporated herein by this reference (the
"Property").
C. Pursuant to the terms of the Development Agreement, City granted vested
development rights for the Property as provided in the approved Rolling Hills Ranch Specific
Plan and certified EIR-SCH No. 98101012 ("EIR") as a residential planned community.
D. Owner has entered into a legally binding contract to purchase the Property from
Hart Beaumont, LLC, a California limited liability company, and proposes to amend the Rolling
Ilills Specific Plan, the City's General Plan, and submit an Addendum to EIR-SCH
No. 98101012 to change the Specific Plan zoning and General Plan designation from a
residential community to an industrial warehouse/manufacturing complex to be known as
"Crossroads Industrial Park" (the "Project").
E. In order to strengthen the public planning process, to encourage private
participation in comprehensive planning, and to reduce the economic risks of development, the
Legislature of the State of California has adopted Sections 65864 through 65869.5 of the
Government code which authorize the City and the Owner to enter into this Agreement for
purposes of facilitating the development of the property as described herein.
F. The City, by adopting Resolution No. 1987-34, has adopted rules and regulations
establishing procedures and requirements for the consideration of this Agreement.
G. On June 29, 1993, the City Council approved the City of Beaumont Community
Facilities District No. 93-1 ("CFD No. 93-1" or the "CFD") as part of the City Comprehensive
Public Facilities Financing Program (the "City Program") pursuant to which the City determined
that it was appropriate to provide for certain public facilities and services in order 1:o implement
the General Plan and, further, that such facilities and services could best be facilitated through
the City issuing bonds secured by liens on real property to be developed within the City. City
and Owner determined that it is in the best interests of the City and Owner to participate in the
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CFD and, as part of such participation, to cooperate in the issuance of the bonds and the placing
of a lien upon the Property to secure repayment of a portion of the bonded indebtedness created
as a result of the establishment of the CFD.
H. This Agreement and the development of the Property pursuant to the Specific
Plan as amended are consistent with the General Plan as amended.
I. Prior to adopting this Agreement, City and Owner complied with all procedures
and requirements of the California Environmental Quality Act with respect to the Project and the
Agreement.
J. The terms and conditions of this Agreement have been extensively reviewed by
the City, its Planning Commission and its City Council and have been found to be fair, just and
reasonable, to be in the best interest of the citizens of the City, and to serve public health, safety,
and welfare, and the City Council has further found that the Development of the Property in
accordance with the General Plan, the General Plan EIR, the Specific Plan, the EIR and this
Agreement will provide substantial benefits to the City with respect to implementing City
policies and goals which promote community, economic, public infrastructure, and high quality,
managed development.
K. Prior to entering into this Agreement, City complied with all legal requirements
for notice, public hearings, findings, votes, and other procedural matters necessary as a condition
precedent to entering into this Agreement with Owner.
L. On , 2004, the City Council adopted Ordinance No.
approving this Agreement.
COVENANTS
NOW, THEREFORE, in consideration of the above recitals and of the mutual covenants
hereinafter contained and for other good and valuable consideration, the receipt and sufficiency
of which is hereby acknowledged, the parties agree as follows:
1. DEFINITIONS AND EXHIIBITS.
1.1 Definitions. The following terms when used in this Agreement shall be
defined as follows:
1.1.1 "Agreement" means this Amendment and Restatement of
Development Agreement.
1.1.2 "CFD" or "CFD No. 93-1" means Community Facilities District
No. 93-1 of the City of Beaumont.
1.1.3 "City" means the City of Beaumont, a municipality duly
incorporated under the laws of the State of California.
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1.1.4 "City Program" means the City Comprehensive Public Facilities
Financing Program which includes policies and procedures related to public infrastructure
financing which are or will be adopted and/or implemented on a City-wide and/or area of benefit
basis.
1.1.5 "Critical Facilities and Services" means facilities and services of
the City relating to law enforcement, fire protection, transportation, wastewater treatment and
parks, recreation and open space.
1.1.6 "Development" means the improvement of the Property for the
purposes of completing the structures, improvements and facilities comprising the Project
including, but not limited to: grading; the construction of infrastructure and public facilities
related to the Project whether located within or outside the Property; the construction of
buildings and structures; and the installation of landscaping. "Development" does not include
the maintenance, repair, reconstruction or redevelopment of any building, structure,
improvement or facility after the construction and completion thereof.
1.1.7 "Development Agreement" means that Development Agreement
recorded on February 9, 1994 as Instrument No. 56818 of Official Records, Riverside County
Recorder.
1.1.8 "Development Approvals" means all permits and other
entitlements for use subject to approval or issuance by City in connection with Development of
the Property including:
approvals;
(a) General Plan designations and amendments;
(b) Specific plans and specific plan amendments;
(c) Zoning;
(d) Tentative and final subdivision and parcel maps;
(e) Conditional use permits, public use permits and plot plans;
(t) Planned unit development and planned development
(g) Variances;
(h) Lot line adjustments;
(i) Grading and building permits; and
(j) Occupancy permits
1.1.9 "Development Exaction" means any requirements of the City in
connection with or pursuant to any Land Use Regulation or Development Approval for the
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dedication of land, the construction or improvement of public facilities, or the payment of fees
adopted by action of the City Council by its Resolution No. 1990-44, amended August 27,
1990/Resolution No. 1989-42, in order to lessen, offset, mitigate or compensate for the impacts
of development on the environment or other public interests; excepting therefrom development
exactions by agencies other than the City applied through the Land Use Regulations or
Development Approvals over which the City has no direct control, and Development Exactions
with respect to sewer connection fees.
1.1.10 "Development Plan" means the Existing Development Approvals
and the Existing Land Use Regulations applicable to Development of the Property.
1.1.11 "Effective Date" means the date this Agreement is recorded with
the County Recorder.
1.1.12 "EIR" means the Addendum to the Rolling Hills Specific Plan
Amendment No. 2 EIR-SCH No. 98101012.
1.1.13 "Existing Development Approvals" means all Development
Approvals approved or issued prior to the Effective Date. Existing Development Approvals
includes the Development Approvals identified on and incorporated herein as Exhibit "C,"
together with all other Development Approvals which are a matter of public record on the
Effective Date.
1.1.14 "Existing Land Use Regulations" means all Land Use Regulations
in effect on the Effective Date and all other Land Use Regulations which are a matter of public
record on the Effective Date.
1.1.15 "Land Use Regulations" means all ordinances, resolutions, codes,
rules, regulations and official policies of City governing the Development and use of land,
including, without limitation, the permitted use of land, the density or intensity of use,
subdivision requirements, the maximum height and size of proposed buildings, provisions for
reservation or dedication of land for public purposes, and the design, improvement and
construction standards and specifications applicable to the development of the Property. The
term "Land Use Regulations" does not include any City ordinance, resolution, code, rule,
regulation or official policy, governing:
(a) The conduct of businesses, professions, and occupations;
(b) Taxes and assessments;
(c) The control and abatement of nuisances;
(d) The granting of encroachment permits, extensions of time
and the conveyance of rights and interests which provide for the use of or the entry upon public
property;
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(e) The exercise of the power of eminent domain.
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1.1.16 "Owner" means Rolling Hills Industrial, LLC, a California limited
liability company, and its successors in interest to all or any part of the Property.
1.1.17 "Mortgagee" means a mortgagee of a mortgage, a beneficiary
under a deed of trust or any other security -device lender and their successors and assigns.
1.1.18 "Project" means the Development of the Property contemplated by
the Rolling Hills Specific Plan Amendment No. 2, the EIR and this Agreement ("Development
Plan") as such Plan may be further defined, enhanced, or modified pursuant to the provisions of
this Agreement.
1.1.19 "Property" means the real property described on Exhibit "A" and
shown on Exhibit "B" to this Agreement.
1.1.20 "Reservations of Authority" means the rights and authority
excepted from the assurances and rights provided to Owner under this Agreement and reserved
to City under Subsection 3.8.1 of this Agreement.
1.1.21 "Subsequent Development Approvals" means all Development
Approvals required by City or requested by Owner and approved by City subsequent to the
Effective Date in connection with Development of the Property.
1.1.22 "Subsequent Development Exaction" means all Development
Exactions applied to the Development Plan following the Effective Date of this Agreement.
1.1.23 "Subsequent Land Use Regulations" means any Land Use
Regulations adopted and effective after the Effective Date of this Agreement.
1.2 Exhibits. The following documents are attached to, and by this reference
made a part of, this Agreement.
Exhibit "A" -- Legal Description of the Property.
Exhibit "B" -- Map showing Property and its location.
Exhibit "C" -- Existing Development Approvals.
2. GENERAL PROVISIONS.
2.1 Binding Effect of Agreement. The Property and the parties hereto are
hereby made subject to this Agreement. Development of the Property is hereby authorized and
shall be carried out only in accordance with the terms of this Agreement.
2.2 Ownership of Property. Owner represents and covenants that it is the
equitable owner under contract to purchase the fee simple title to the Property from Hart
Beaumont, LLC.
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2.3 Term. The term of this Agreement shall commence on the Effective Date
and shall continue for a period of ten (10) years thereafter unless this term is modified or
extended pursuant to the provisions of this Agreement.
2.4 Assignment.
2.4.1 Right to Assign. Owner shall have the right to sell, transfer, or
assign the Property in whole or in part at any time during the term of this Agreement; provided,
however, that any such sale, transfer or assignment shall be made only with notice to the City
and shall include the assignment and assumption of the rights, duties and obligations arising
under or from this Agreement and be made in strict compliance with the following conditions
precedent:
(a) No sale, transfer or assignment of any right or interest
under this Agreement shall be made unless made together with the sale, transfer or assignment of
all or part of the Property.
(b) Concurrent with any such sale, transfer or assignment, or
within thirty (30) business days thereafter, Owner shall notify the City in writing, of such sale,
transfer or assignment and shall provide the City with an executed release agreement, in a form
acceptable to the City, by the purchaser, transferee or assignee and providing expressly and
unconditionally that the purchaser, transferee, or assignee assumes all the rights, duties and
obligations of the Owner under this Agreement with respect to the property interest sold,
transferred or assigned.
(c) In the event there is a transfer of a portion of the Property,
then the Owner and the transferee may elect by written agreement to allocate between
themselves fee credits available or other benefits available to the Owner under this Agreement,
in any manner they see fit and such allocations shall be as set forth in the written agreement
between the Owner and the transferee, a copy of which agreement shall be filed with the City. In
the event the Owner and the transferee have not made a written allocation of such benefits, then
such benefits of the Agreement shall be allocated between the Owner and the transferee on a pro
rata by area of land, equivalent dwelling units, or other reasonable basis as determined in the sole
and reasonable discretion of the City.
Any sale, transfer or assignment not made in strict compliance with the
foregoing conditions shall constitute a default by the Owner under this Agreement.
Notwithstanding the failure of any purchaser, transferee or assignee to execute the agreement
required by Paragraph (b) of this Subsection 2.4.1, the rights, duties and obligations of this
Agreement shall be binding upon such purchaser, transferee or assignee until and unless such
agreement is executed.
A sale, transfer, or assignment of the Property, in whole or in part, shall
not, in and of itself, give City the right to apply subsequent Development Exactions or
Subsequent Land Use Regulations upon the Project.
2.4.2 Release of Transferring Owner. Notwithstanding any sale, transfer
or assignment, a transferring Owner shall continue to be obligated under this Agreement unless
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such transferring Owner applies for a release request and is given a release in writing by City,
which release shall be provided by City upon the full satisfaction by such transferring Owner of
the following conditions:
(a) Owner no longer has a legal or equitable interest in the
Property (or portion of the Property) sold, transferred or assigned.
(b) Owner has provided City with the release request notice
and executed release agreement required under Paragraph (b) of Subsection 2.4.1.
2.4.3 Subsequent Assignment. Any subsequent sale, transfer or
assignment after an initial sale, transfer or assignment shall be made only in accordance with and
subject to the terms and conditions of this Section.
2.4.4 Termination of Agreement With Respect to Individual Lots Upon
Sale to Public and Completion of Construction. The provisions of Subsection 2.4.1 shall not
apply to the sale or lease (for a period longer than one year) of any lot which has been
subdivided and is individually (and not in "bulk") sold or leased to a member of the public or
other ultimate user. Notwithstanding any other provisions of this Agreement, this Agreement
shall terminate with respect to any lot and such lot shall be released and no longer be subject to
this Agreement without the execution or recordation of any further document upon satisfaction
of both of the following conditions:
(a) The lot has been subdivided and individually (and not in
"bulk") sold or leased (for a period longer than one year) to a member of the public or other
ultimate user.
(b) A Certificate of Occupancy has been issued for a building
on the lot in accordance with the Development Plan and this Agreement.
2.5 Amendment or Cancellation of Agreement. This Agreement may be
amended or canceled in whole or in part only by written consent of the parties in the manner
provided for in Government Code Section 65868. This provision shall not limit any remedy of
City or Owner as provided by this Agreement.
2.6 Termination. This Agreement shall be deemed terminated and of no
further effect upon the occurrence of any of the following events:
(a) Expiration of the stated term of this Agreement as set forth in
Section 2.3.
(b) Entry of a final judgment setting aside, voiding or annulling the
adoption of the ordinance approving this Agreement.
(c) Completion of the Project in accordance with the terms of this
Agreement including issuance of all required occupancy permits and acceptance by the City and
applicable public agencies of all required dedications and public improvements.
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2.7 Notices
(a) As used in this Agreement, "notice" includes, but is not limited to,
the communication of notice, request, demand, approval, statement, report, acceptance, consent,
waiver, appointment or other communication required or permitted hereunder.
(b) All notices shall be in writing and shall be considered given either:
(i) when delivered in person to the recipient named below; or (ii) on the date of delivery shown
on the return receipt, after deposit in the United States mail in a sealed envelope as either
registered or certified mail with return receipt requested, and postage and postal charges prepaid,
and addressed to the recipient named below; or (iii) on the date of delivery shown in the records
of the telegraph company after transmission by telegraph to the recipient named below. All
notices shall be addressed as follows:
If to City:
and
If to Owner:
wit a copy to:
City Clerk
City of Beaumont
550 East Sixth Street
Beaumont, CA 92223-0158
City Manager
City of Beaumont
550 East Sixth Street
Beaumont, CA 92223-0158
Rolling Hills Industrial, LLC
3788 McCray Street
Riverside, CA 92506
Attn: Roger D. Prend
Hewitt & O'Neil LLP
19900 MacArthur Boulevard
Suite 1050
Irvine, CA 92612
Attn: Dennis D. O'Neil
(c) Either party may, by notice given at any time, require subsequent
notices to be given to another person or entity, whether a party or an officer or representative of a
party, or to a different address, or both. Notices given before actual receipt of notice of change
shall not be invalidated by the change.
3. DEVELOPMENT OF THE PROPERTY.
3.1 Rights to Develop. Subject to the terms of this Agreement, including the
Reservations of Authority, the Owner shall have a vested right to develop the Property in
accordance with, and to the extent of, the Development Plan. The City agrees to process in good
faith the balance of approvals needed to develop the Property in accordance with the
Development Plan. Once approved, all Subsequent Development Approvals shall be deemed
part of the Development Plan and subject to the vested rights set forth herein. Except as
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otherwise provided in this Agreement, the permitted uses of the Property, the intensity of use, the
maximum height and size of proposed buildings, and provisions for reservation and dedication of
land for public purposes shall be those set forth in the Development Plan. The Development
Plan entitles the Owner to develop industrial buildings consistent with the Business Park
designation in the amended General Plan, Rolling Hills Specific Plan Amendment No. 2, the
Addendum to the EIR and this Agreement.
3.2 Effect of Agreement on Land Use Regulations. Except as otherwise
provided under the terms of this Agreement, including the Reservations of Authority; the rules,
regulations and official policies governing permitted uses of the Property, the density and
intensity of use of the Property, the maximum height and size of proposed buildings, and the
design, improvement and construction standards and specifications applicable to development of
the Property shall be the Existing Land Use Regulations and the Development Plan. In
connection with any Subsequent Development Approval, the City shall exercise its discretion in
accordance with the Development Plan, and as provided by this Agreement including, but not
limited to, the Reservations of Authority. The City shall accept for processing, review and action
all applications for Subsequent Development Approvals, and such applications shall be
processed in the normal manner for processing such matters. The Addendum to the EIR-SCH
No. 98101012 shall satisfy the requirements of the California Environmental Quality Act for
processing Subsequent Development Approvals required under the Development Plan. All non -
discretionary land use entitlement approvals for development of the Project shall be conducted
administratively.
3.3 Assessments. Fees. Mitigation and Exactions. The City shall not impose
any future assessment, development fees, mitigation measure or exaction on the Project or any
portion thereof, except: (a) those existing assessments, development fees, mitigation measures
and exactions imposed as of the Effective Date; (b) such other fees, assessments and exactions as
may be adopted or imposed by the City in conformance with the requirements of Article XIII D
of the California Constitution, and (c) such other development impact fees or categories of
development impact fees which are imposed on other development projects in the City and are
adopted and levied in accordance with AB 1600. It is understood and agreed that payment of the
Beaumont Road and Bridge Benefit Mitigation Fee (`BRB Fee") adopted by the City Council of
City on February 18, 2003 as Ordinance No. 837 will fully satisfy Owner's obligation under the
Comprehensive Public Facilities Financing Program in accordance with Sections 4 and 4.2 of
the Development Agreement. For the term of this Agreement, the BRB Fee shall be established
at sixty-five cents ($0.65) per square foot of the Project buildable area to be paid at issuance of
building permits. The following City fees shall be paid at the rate applicable on the Effective
Date of this Agreement and for a period of six (6) years thereafter:
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City Impact Mitigation Fees:
• Traffic Signal
• Railroad Crossing
• Emergency Preparedness
• Southwest Properties Water
• Willow Springs Sewer
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The City sewer application and sewer connection fees shall be paid based on the current fee
schedule effective at the time of filing applications for building permits.
City shall recognize and apply a dollar -for -dollar in -lieu credit against any and all
fees, for and equal to the nexus value of improvements by the Developer, or funded by any CFD
or alternative financing mechanism including the Property, and for which the fees would
otherwise be imposed. City further agrees to use any fees paid with respect to development of
the Project to fund improvements which benefit the Project, to the fullest reasonable extent
available and applicable under the law.
3.4 Effect of Agreement on General Plan. The City and the Owner
acknowledge that the feasibility of the Development Plan and the value of the Property is
dependent in part upon the City permitting the Development of the Property in accordance with
the amended General Plan as set forth in the Existing Land Use Regulations and in accordance
with the City Program. Therefore, the City shall not further amend the General Plan in any
manner which would materially and adversely impact the Owner's Development or use of the
Property as provided in the Development Plan and this Agreement.
3.5 Timing of Development. The parties acknowledge that Owner cannot at
this time predict when or the rate at which phases of the Property will be developed. Such
decisions depend upon numerous factors which are not within the control of the Owner, such as
market conditions, interest rates, absorption, completion and other similar factors. Since the
California Supreme Court held in Pardee Construction Co. v. City of Camarillo (1984) 37 Ca1.3d
465, that the failure of the parties therein to provide for the timing of development resulted in a
later adopted initiative restricting the time of development to prevail over such parties'
agreement; it is the parties' intent to cure that deficiency by acknowledging and providing that
the Owner shall have the right to develop the Property in such order and at such rate and at such
times as the Owner deems appropriate within the exercise of its subjective business judgment,
subject only to any timing or phasing requirements set forth in the Development Plan.
3.6 Phasing Plan. Development of the Property shall be subject to all timing
and phasing requirements established by the Development Plan.
3.7 Changes and Amendments. The parties acknowledge that refinement and
further Development of the Project will require Subsequent Development Approvals and may
demonstrate that changes are appropriate and mutually desirable in the Existing Development
Approvals. In the event the Owner finds that a change in the Existing Development Approvals is
necessary or appropriate, the Owner shall apply for Subsequent Development Approvals to
effectuate such change and the City shall process and act on such application in accordance with
the Existing Land Use Regulations, except as otherwise provided by this Agreement including
the Reservations of Authority. If approved, any such change in the Existing Development
Approvals shall be incorporated herein as an addendum to Exhibit "C", and may be further
changed from time to time as provided in this Section. Unless otherwise required by law, as
determined in the City's reasonable sole discretion, a change in the Existing Development
Approvals shall be deemed "minor," shall not require a public hearing, and not require an
amendment to this Agreement, and shall be made administratively by the City at the request of
the Owner, provided such change does not:
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or,
(a) Alter the permitted uses of the Property as a whole; or,
(b) Increase the density or intensity of use of the Property as a whole;
(c) Increase the maximum height and size of permitted buildings; or,
(d) Delete a requirement for the reservation or dedication of land for
public purposes within the Property as a whole; or,
(e) Constitute a project requiring an environmental impact report
pursuant to Section 21166 of the Public Resources Code.
3.8 Reservations of Authority.
3.8.1 Limitations, Reservations and Exceptions. Notwithstanding any
other provision of this Agreement, the following Subsequent Land Use Regulations, and no
others, shall apply to the Development of the Property.
(a) Processing fees and charges reasonably imposed by City to
cover the reasonable estimated actual costs to the City of processing applications for
Development Approvals or for monitoring compliance with any Development Approvals granted
or issued provided that such fees and charges are applied uniformly or on an area off benefit basis
to development in the City.
(b) Procedural regulations relating to hearing bodies, petitions,
applications, notices, findings, records, hearings, reports, recommendations, appeals and any
other matter of procedure.
(c) Regulations and policies governing construction standards,
extensions of time and specifications including, without limitation, the City's Building Code,
Plumbing code, Mechanical Code, Electrical Code, Fire Code and Grading Code.
(d) Regulations which are not in conflict with the Development
Plan; however, any ordinance, resolution, regulation, or measure which is enacted, whether by
action of the City, by initiative, referendum, or otherwise, which relates to the rate, timing or
sequencing of the Development or construction of the Project, shall be deemed to be in conflict
with the Development Plan and shall therefore not be applicable to the Development of the
Property. Without limiting the foregoing, any limitation affecting timing of the availability of
permits, approvals, or other entitlements relating to subdivision maps, building permits, utility
connections, or other entitlements necessary for the Development of the Project shall be deemed
to be in conflict with the Development Plan and shall therefore not be applicable to Development
of the Property.
3.8.2 Subsequent Development Approvals. This Agreement shall not
restrict the City in acting on Subsequent Development Approvals and from applying Subsequent
Land Use Regulations which do not conflict with but which may provide definition to the
Development Plan, nor shall this Agreement prevent the City from denying or conditionally
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approving any Subsequent Development Approval on the basis of the Existing Land Use
Regulations or any Subsequent Land Use Regulation not in conflict with the Development Plan.
3.8.3 Modification or Suspension by State or Federal Law. In the event
that State or Federal laws or regulations, enacted after the Effective Date of this Agreement,
prevent or preclude compliance with one or more of the provisions of this Agreement, such
provisions of this Agreement shall be modified or suspended as may be necessary to comply
with such State or Federal laws or regulations, provided, however, that this Agreement shall
remain in full force and effect to the extent it is not inconsistent with such laws or regulations
and to the extent such laws or regulations do not render such remaining provisions impractical to
enforce.
3.8.4 Intent. The parties acknowledge and agree that the City is
restricted in its authority to limit its police power by contract and that the foregoing limitations,
reservations and exceptions are intended to reserve to the City all of its police power which
cannot be so limited. This Agreement shall be construed, contrary to its stated terms if
necessary, to reserve to the City all such power and authority which cannot be restricted by
contract.
3.9 Provision of Real Property Interests by City. Except as otherwise
provided herein, in any instance where the Owner is required, pursuant to a condition of approval
of the Development of the Property, to construct any public improvement on land not owned by
the Owner; the Owner shall attempt in good faith to provide or cause to be provided at its sole
cost and expense the real property interests necessary for the construction of such public
improvements. In the event the Owner is unable, after exercising reasonable efforts, including,
but not limited to, the rights under Sections 1001 and 1002 of the Civil Code, to acquire the real
property interests necessary for the construction of such public improvements, the City shall, if
necessary, in accordance with the procedures established by law, use its power of eminent
domain to acquire such required real property interests. The Owner shall pay all costs associated
with such acquisition and condemnation proceedings, including City administration and legal
costs. In the event of the advance funding of costs, City shall endeavor to provide a mechanism
for Owner to recover such costs, including an adjustment for the cost of moneys advanced, from
other owners of property benefiting from such improvements on a fair -share basis.
3.10 Regulation by Other Public Agencies. It is acknowledged by Owner and
the City that other public agencies not within the control of the City may possess authority to
regulate aspects of the Development of the Property separately from or jointly with the City and
this Agreement does not limit the authority of such other public agencies acting separately from
or jointly with the City. The City agrees to cooperate with and use its reasonable efforts in
support of the Owner's efforts to obtain any required approvals from such other public agencies
which may be necessary for the Development of Property in accordance with the Development
Plan.
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3.11 Tentative Tract Map Extension. Existing tentative subdivision or tentative
parcel maps in connection with the Development of the Property shall be effective for the longer
of the following periods of time:
(a) The period of time within which tentative subdivision or tentative
parcel maps may be finalized on property which is not affected by a development agreement
entered into pursuant to Government Code Sections 65864 through 65869.5; or
(b) A term of ten (10) years from the Completion Date, provided that
Owner may apply for and City may grant two (2) additional one-year extensions.
The terms of any tentative subdivision or tentative parcel map hereafter approved
in connection with the Development of the Property pursuant to this Agreement shall be the
longer of the following periods of time:
(a) The period of time within which tentative subdivision or tentative
parcel maps may be finalized on property which is not affected by a development agreement
entered into pursuant to Government Code Sections 65864 through 65869.5: or
(b) Pursuant to Government Code Section 66452.6(a), an initial terra
of ten (10) years from the approval of the tentative map, provided that Owner may apply for and
City may grant two (2) additional one-year extensions and further provided that the total term of
any such tentative map shall not exceed the term of this Agreement.
4. PUBLIC IMPROVEMENTS AND FINANCING.
4.1 Streets and Highways.
4.1.1 Generally. The City has approved the conceptual Circulation Plan
included within the Specific Plan. Except as otherwise expressly provided herein, as
Development of the Project proceeds and construction of various components of the Circulation
Plan are required to serve the Project, the Owner shall dedicate to the City those specified streets
and highways and related improvements to be constructed thereon which are designated as
"public" streets and highways within the Circulation Plan of the Amended Specific Plan and
subsequent Development Approvals; and the Owner shall construct or cause to be constructed
the specified improvement for the streets and highways depicted within the Circulation Plan of
the Amended Specific Plan and subsequent Development Approvals as development of the
Property proceeds. It is understood that such dedication and construction of the identified
circulation improvements will proceed incrementally as reasonably determined by the City based
upon traffic demands and in accordance with the phasing of the actual development of the
Project. The City reserves the right to make changes to the Circulation Plan if the City
determines in its sole reasonable judgment based upon traffic studies that such changes are
necessary in order to accommodate projected traffic demands. Such changes shall in no event
materially and adversely impact the Development Plan or the benefits to accrue to the Owner
thereunder. The City agrees to use its best efforts to facilitate the construction of the circulation
improvements in accordance with this Agreement.
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4.2 Water Service. The City agrees that it will use its best efforts to cause the
Project to be served with potable water for industrial, commercial and municipal uses. Such
service shall be facilitated by the City Program in accordance with the Amended General Plan,
Specific Plan Amendment No. 2, the Addendum to the EIR and the Cooperative Water
Agreements between the City and the Beaumont -Cherry Valley Water District and among the
City, the Beaumont -Cherry Valley Water District and the San Gorgonio Pass Water Agency.
4.3 Drainage Facilities. The Parties acknowledge the necessity of
constructing and/or improving drainage facilities needed for the Development of the Project in
accordance with the Development Plan. The City and the Owner shall use their best efforts to
coordinate the drainage facility improvements with adjacent property owners and all public
agencies which have jurisdiction over the construction and/or improvement of drainage facilities
needed for the Development of the Project in accordance with the Development Plan.
4.4 CFD Implementation and Participation. The City has formed CFD 93-1
and issued the bonds pursuant thereto in accordance with the formation documents of the CFD
and the City Program. Owner shall cooperate in causing the Property to be encumbered by a lien
securing payment of the special tax necessary to support repayment and/or refunding of the
Series 1993 B Bonds or subsequently approved bonded indebtedness of the CFD authorized by
the Owner and approved by the City.
4.5 New CFD. If City determines it to be in the City's best interest, Owner
shall cooperate with City in the initiation and formation of assessment or other financing districts
(including, without limitation, a community facilities district under applicable laws and
ordinances). The new CFD shall be authorized to levy a special tax on the Property to provide
funding for infrastructure improvements and other development impact and mitigation fees as
provided in this Agreement.
4.6 Financing Generally of Public Improvements. In addition to specific
obligations with respect to the financing of public improvements as set forth in this Agreement
and the City Program, the City and the Owner agree, whenever feasible as determined in the sole
discretion of the City, to facilitate and utilizing various methods of public finance for the
construction of the public streets, wastewater treatment and wastewater reclamation facilities,
storm drains, and other public improvements and infrastructure located within the Project or
required to serve the Project. It is contemplated that the Owner and the City will consider
various public financing programs, including tax-exempt lease -purchase, the formation of
community facility districts, formation of assessment districts through the Municipal
Improvement Act of 1913 and the Improvement Bond Act of 1915, the issuance of Industrial
Development Bonds, the formation of maintenance districts and the formation of Benefit
Districts and Infrastructure Financing Districts.
The City shall use its best efforts to adopt ordinances and/or resolutions providing
for the collection of mitigation fees for the construction of sewer facilities, storm drains, street
improvements, and other infrastructure facilities which serve the Project and other developments
within the City, which ordinances or resolutions shall provide for the collection of mitigation
fees with respect to property which receives the benefits of the various public facilities, and
reimbursement to other properties which have paid or been assessed for the acquisition and
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construction necessary to complete the various improvements in excess of a proportionate share
based upon the fair assessment of the relative benefits of the various properties as set forth in the
City Program.
The City further agrees to cooperate with the Owner and any school districts
serving the Project in reaching acceptable mitigation and reimbursement agreements with respect
to the amount of school impact mitigation fees and, when appropriate, the waiver of school
impact mitigation fees for Development of the Project which does not impact school facilities, as
determined by the Beaumont Unified School District.
4.7 Subdivision Security. Owner shall be relieved from the requirement for
posting subdivision security, including payment and performance bonds, for any and all
infrastructure improvements for which construction funding is provided by sales of bonds of
Improvement Area No. 4 of CFD 93-1. In the event that Owner has posted subdivision security
prior to the sale of such CFD bonds then Owner shall be entitled to the immediate release of such
subdivision security upon receipt of CFD bond proceeds intended for the bonded facilities.
4.8 No Cross -Collateralization. City has informed Owner that it intends to
sell and deliver bonds of the CFD pursuant to provisions of the Marks -Roos Local Bond Pooling
Act of 1985, Government Code § 6584, et seq. City agrees that no special taxes shall be levied
on the Property within Improvement Area No. 4 to (i) replenish a bond reserve fund applicable to
bonds of any other Improvement Area of the CFD, (ii) provide any funds to secure against the
default or possible default of debt service payments to bondholders of any other Improvement
Area of the CFD, or (iii) provide any other benefit for any Improvement Area in the CFD save
and except for the benefit of Improvement Area Nos. 6A and 6B. However, the reserve fund
established for the bonds of the Marks -Roos Local Bond Pool shall be available to cover
delinquencies in any Improvement Area, notwithstanding the restriction on replenishment
thereof.
In the event the City does not finance any of the required public infrastructure
improvements in the City Program through a public financing mechanism, the City shall
cooperate with the Owner in obtaining the necessary permits for such improvements and entering
into owner participation agreements and/or reimbursement agreements, as appropriate, to
facilitate the construction and funding of the improvements and the repayment of Owner on a
fair -share basis based on a benefit analysis from payments received from other benefiting
owners.
5. REVIEW FOR COMPLIANCE.
5.1 Periodic Review. The City Planning Director shall review this Agreement
annually, within a period of ninety (90) days following the anniversary of the Effective Date, in
order to ascertain the good faith compliance by the Owner with the terms of the Agreement. The
Owner agrees to pay the City for administrative and legal costs which are reasonable, customary
and related to such review; provided that the charge to Owner for each annual review shall not
exceed $800, while the land is undeveloped, or $2,000, once development has commenced, both
fees adjusted for 1995 and subsequent years based on the increase in the Engineering News -
Record Cost Index for Los Angeles over its value on January 1, 1994.
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5.2 Special Review. The City Council or the City Planning Commission may
order a special review of compliance with this Agreement at any time at no cost to Owner. The
City Planning Director shall conduct such special reviews.
5.3 Procedure.
(a) During either a periodic review or a special review, the Owner
shall be required to demonstrate good faith compliance with the terms of this Agreement. The
burden of proof on this issue shall be on the Owner.
(b) Upon completion of a periodic review or a special review, the City
Planning Director shall submit a report to the City Council setting forth the evidence concerning
good faith compliance by the Owner with the terms of this Agreement and shall present the
recommended finding on that issue in writing.
(c) If the City Council finds on the basis of substantial evidence that
the Owner has complied in good faith with the terms and conditions of this Agreement, the
review shall be concluded.
(d) If the City Council makes a preliminary finding that the Owner
may not have complied in good faith with the terms and conditions of this Agreement, including
failure to pay CFD special taxes in a timely manner, the City Council shall commence
proceedings as provided in Section 5.4 and Section 5.5. Notice of possible default as provided
under Section 6.4 of this Agreement shall be given to Owner prior to or concurrent with,
proceedings under Section 5.4 and Section 5.5.
5.4 Proceedings Upon Modification or Termination. If, upon a finding under
Section 5.3, the City determines to proceed with modification or termination of this Agreement,
the City shall give written notice to the Owner of its intention to do so. The notice shall be given
at least thirty (30) calendar days prior to the scheduled hearing and shall contain:
(a) The time and place of the hearing;
(b)
modify the Agreement; and,
(c)
of the nature of proceeding.
A statement as to whether or not City proposes to terminate or to
Such other information as is reasonably necessary to inform Owner
5.5 Hearing on Modification or Termination. At the time and place set for the
hearing on modification or termination, the Owner shall be given an opportunity to be heard.
The Owner shall be required to demonstrate good faith compliance with the terms and conditions
of this Agreement. The burden of proof on this issue shall be on the Owner. If the City Council
finds, based upon substantial evidence that the Owner has not complied in good fitith with the
Agreement, and that the decision of the City Council is in the best interest of the City, then
pursuant to authority of Government Code Section 65865.1 the City Council may extend,
terminate or modify this Agreement and impose such conditions as are reasonably necessary to
protect the interests of the City and the participants of CFD No. 93-1, subject to first complying
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with the requirement of Section 6.3 hereof. The decision of the City Council shall be final,
subject only to judicial review pursuant to Section 1094.5 of the Code of Civil Procedure.
5.6 Certificate of Agreement Compliance. If, at the conclusion of a periodic
or special review, the Owner is found to be in compliance with this Agreement, the City shall,
upon request by the Owner, issue a Certificate of Agreement Compliance ("Certificate") to the
Owner stating that after the most recent periodic or special review and based upon the
information known or made known to the City Planning Director and the City Council that
(i) this Agreement remains in effect and (ii) the Owner is not in default. The Certificate shall be
in recordable form, shall contain information necessary to communicate constructive record
notice of the finding of compliance, shall state whether the Certificate is issued after a periodic
or special review and shall state the anticipated date of commencement of the next periodic
review. The Owner may record the Certificate with the County Recorder.
Whether or not the Certificate is relied upon by assignees or other transferees or
The Owner, the City shall not be bound by a Certificate if a default existed at the time of the
periodic or special review, but was concealed from or otherwise not known to the City Planning
Director or the City Council.
6. DEFAULT AND REMEDIES.
6.1 Remedies in General. In general, each of the parties hereto may pursue
any remedy at law or equity available for the breach of any provision of this Agreement.
6.2 Specific Performance. The parties acknowledge that money damages and
remedies at law generally are inadequate and specific performance is a particularly appropriate
remedy for the enforcement of this Agreement and should be available to all parties. Due to the
size, nature and scope of the Project, it may not be practical or possible to restore the Property to
its natural condition once implemented, and the Owner or the City may be foreclosed from other
choices related to the Development of the Property or portions thereof, in accordance with the
Development Plan and the City's Program. The Owner and the City have invested significant
time and resources and performed extensive planning and processing of the Project in agreeing to
the terns of this Agreement and will be investing significant time and resources with respect to
the Development of the Project in reliance upon the terms of this Agreement, and it is not
possible to determine the sum of money which would adequately compensate the Owner or the
City for such efforts.
6.3 Suspension of Agreement for Default of Owner. The City may suspend
Owner's rights under this Agreement for any failure of the Owner to perform any material duty
or obligation of the Owner under this Agreement or to pay CFD special taxes in a timely manner
or to comply in good faith with the terms of this Agreement (hereinafter referred to as "default");
provided, however, the City may suspend this Agreement pursuant to this Section only after
providing written notice to the Owner of the default setting forth the nature of the default and the
actions, if any, required by the Owner to take such actions and cure such default within sixty (60)
days after the effective date of such notice or, in the event that such default cannot be cured
within such sixty (60) day period but can be cured within a longer time, has failed to commence
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the actions necessary to cure such default within such sixty (60) day period and to diligently
proceed to complete such actions and cure such default.
6.4 Termination of Agreement for Default of City. The Owner may terminate
this Agreement only in the event of a default by the City in the performance of a material term of
this Agreement and only after providing written notice to the City of default setting forth the
nature of the default and the actions, if any, required by the City to take such actions and cure
such default within sixty (60) days after the effective date of such notice or, in the event that
such default cannot be cured within such sixty (60) day period but can be cured within a longer
time, has failed to commence the actions necessary to cure such default within such sixty (60)
day period and to diligently proceed to complete such actions and cure such default.
7. THIRD PARTY LITIGATION.
7.1 General Plan Litigation. The City has determined that this Agreement is
consistent with its General Plan and that the General Plan meets all requirements of law. The
Owner has reviewed the General Plan and concurs with the City's determination. The City shall
have no liability under this Agreement for any fiulure of the City to perform under this
Agreement or the inability of the Owner to develop the Property in accordance with the
Development Plan as the result of a judicial determination that on the Effective Date, or at any
time thereafter, the General Plan, or portions thereof are invalid or inadequate or not in
compliance with law.
7.2 Third Party Litigation Concerning Agreement. The Owner shall defend, at
its expense, including attorneys' fees, indemnify, and hold harmless the City, its agents, officers,
employees and subcontractors or independent contractors from any claim, action or proceeding
against the City, its agents, officers, or employees to attack, set aside, void, or annul the
approval, enforcement or operation of this Agreement. The City shall promptly notify the Owner
of any such claim, action or proceeding, and the City shall cooperate in the defense. If the City
within sixty (60) days of being so notified of any claim, action or proceeding fails to notify the
Owner of any such claim, action or proceeding, or if the City fails to cooperate in the defense,
the Owner shall not thereafter be responsible to defend, indemnify, or hold harmless the City.
The City may in its sole discretion participate in the defense of any such claim, action or
proceeding.
7.3 Indemnity. In addition to the provisions of 7.2 above, the Owner shall
indemnify and hold the City, its agents, officers, employees, subcontractors and independent
contractors free and harp less from any liability whatsoever, based or asserted upon any act or
omission of the Owner, its agents, officers, employees, subcontractors and independent
contractors, for property damage, bodily injury, or death (Owner's employees included) or any
other element of damage of any kind or nature, relating to or in any way connected with or
arising from Owner's acts or omissions related to the Development of the Property, including,
but not limited to, the study, design, engineering, construction, completion, failure and
conveyance of the public improvements save and except claims for damages arising through the
active negligence or willful misconduct of the City. The Owner shall defend, at its expense,
including attorneys' fees, the City, its agents, agents, employees, subcontractors and independent
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contractors in legal action based upon such alleged acts or omissions. The City may in its
discretion participate in the defense of any such legal action.
7.4 Environmental Assurances. The Owner shall indemnify and hold the City,
its agents, officers, employees, subcontractors and independent contractors free and harmless
from any liability, based or asserted, upon any act or omission of Owner, its agents, officers,
employees, subcontractors, predecessors in interest, successors, assigns and independent
contractors for any violation of any federal, state or local law, ordinance or regulation relating to
industrial hygiene or to environmental conditions on, under or about the Property, including, but
not limited to, soil and groundwater conditions, and the Owner shall defend, at its expense,
including attomeys' fees, the City, its agents, officers, employees, subcontractors and
independent subcontracts in any action based or asserted upon any such alleged act or omission.
The City may in its discretion participate in the defense of any such action.
7.5 Reservation of Rights. With respect to Sections 7.2, 7.3 and 7.4 herein,
the City reserves the right to either (i) approve the attorneys) which the Owner selects, hires or
otherwise engages to defend the City hereunder, which approval shall not be unreasonably
withheld, or (ii) if the Owner fail to provide such defense to the City, conduct its own defense,
provided, however, that the Owner shall reimburse the City forthwith for any and all reasonable
expenses incurred for such defense, including reasonable attorneys' fees, upon billing and
accounting therefor.
7.6 Survival. The provisions of this Section 7.1 through 7.6, inclusive, shall
survive the termination of this Agreement.
8. MORTGAGEE PROTECTION.
The parties hereto agree that this Agreement shall not prevent or limit the Owner, in any
manner, at the Owner's sole discretion, from encumbering the Property or any portion thereof or
any private 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 Agreement interpretations and modifications and
agrees upon request, from time to time, to meet with the Owner and representatives of such
lenders to negotiate in good faith any such request for interpretation or modification. The City
will not unreasonably withhold its consent to any such requested interpretation or modification
provided such interpretation or modification is consistent with the intent and purposes of this
Agreement. Any Mortgagee of the Property shall be entitled to the following rights 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.
(b) The Mortgagee of any mortgage or deed of trust encumbering the
Property, or any part thereof, which Mortgagee, has submitted a request in writing to the City in
the manner specified herein for giving notices, shall be entitled to receive written notification
from the City of any default by the Owner in the performance of the Owner's obligations under
this Agreement.
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(c) If the City timely receives a request from a Mortgagee requesting a
copy of any notice of default given to the Owner under the terms of this Agreement, the City
shall provide a copy of that notice to the Mortgagee within ten (10) days of sending the notice of
default to the Owner. The Mortgagee shall have the right, but not the obligation, to cure the
default during the remaining cure period allowed such party under 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.
9. MISCELLANEOUS PROVISIONS.
9.1 Recordation of Agreement. This Agreement and any amendment or
cancellation thereof shall be recorded with the County Recorder by the Clerk of the City within
the period required by Section 65868.5 of the Government Code.
9.2 Entire Agreement. This Agreement sets forth and contains the entire
understanding and agreement of the parties, and there are no oral or written representations,
understandings or ancillary covenants, undertakings or agreements which are not contained or
expressly referred to herein. No testimony or evidence of any such representations,
understandings or covenants shall be admissible in any proceeding of any kind or nature to
interpret or determine the terms or conditions of this Agreement.
9.3 Severability. 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 perform taking into consideration the purposes of this Agreement.
9.4 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. This Agreement shall be construed as a whole according to its fair language and
common meaning to achieve the objectives and purposes of the parties hereto, and the rule of
construction to the effect that ambiguities are to be resolved against the drafting party shall not
be employed in interpreting this Agreement, all parties having been represented by counsel in the
negotiation and preparation hereof.
9.5 Section Headings. All section headings and subheadings are inserted for
convenience only and shall not affect any construction or interpretation of this Agreement.
9.6 Singular and Plural. As used herein, the singular of any word includes the
plural.
9.7 Obligations Run With the Land. If at any time during the term of this
Agreement, an ownership interest in the Property is transferred to another entity, (i) any
obligation under this Agreement which relates to or depends on the area of land owned shall be
apportioned to the underlying ownership interest (by area of land) as though the successor owner
had been an original party to this Agreement and (ii) all obligations which are not subject to
apportionment shall additionally become an obligation of such successor owner.
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Notwithstanding the foregoing, no Owner of a single lot which has been finally subdivided and
sold to such Owner as a member of the general public or otherwise as an ultimate user shall have
any obligation under this Agreement.
9.8 Time of Essence. Time is of the essence in the performance of the
provisions of this Agreement as to which time is an element.
9.9 Waiver. Failure by a party to insist upon the strict performance of any of
the provisions of this Agreement by the other party, or the failure by a party to exercise its rights
upon the default of the other party, shall not constitute a waiver of such party's right to insist and
demand strict compliance by the other party with the terms of this Agreement thereafter.
9.10 No Third Party Beneficiaries. This Agreement is made and entered into
for the sole protection and benefit of the parties and their successors and assigns. No ether
person shall have any right to action based upon any provision of this Agreement.
9.11 Force Majeure. Neither party shall be deemed to be in default where
failure or delay in performance of any of its obligations under this Agreement is caused by
floods, earthquakes, other Acts of God, fires, wars, riots or similar hostilities, strikes and other
labor difficulties beyond the party's control, (including the party's employment force),
government regulations, court actions (such as restraining orders or injunctions), or other causes
beyond the party's control. If any such events shall occur, the term of this Agreement and the
time for Performance by either party of any of its obligation hereunder may be extended by the
written agreement of the parties for the period of time that such events prevented such
performance, provided that the term of this Agreement shall not be extended under any
circumstances for more than five (5) years.
9.12 Mutual Covenants. The covenants contained herein are mutual covenants
and also constitute conditions to the concurrent or subsequent performance by the party
benefitted thereby of the covenants to be performed thereunder by such benefitted party.
9.13 Successors in Interest. The burdens of this Agreement shall be binding
upon, and the benefits of this Agreement shall inure to, all successors in interest to the parties to
this Agreement. All provisions of this Agreement shall be enforceable as equitable servitudes
and constitute covenants running with the land. Each covenant to do or refrain from doing some
act hereunder with regard to Development of the Property: (i) is for the benefit of and is a burden
upon every portion of the Property; (ii) runs with the Property and each portion thereof; and,'
(iii) is binding upon each party and each successor in interest during ownership of the Property
or any portion thereof.
9.14 Counterparts. This Agreement may be executed by the parties in
counterparts, which counterparts shall be construed together and have the same effect as if all of
the parties had executed the same instrument.
9.15 Jurisdiction and Venue. Any action at law or in equity arising under this
Agreement or brought by a party hereto for the purpose of enforcing, construing or determining
the validity of any provision of this Agreement shall be filed and tried in the Superior Court of
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the County of Riverside, State of California, and the parties hereto waive all provisions of law
providing for the filing, removal or change of venue to any other court.
9.16 Project as a Private Undertaking. It is specifically understood and agreed
by and between the parties hereto that the Development of the Project is a private undertaking,
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 Owner is that of a
government entity regulating the development of private property and the owner of such
property.
9.17 Further Actions and Instruments. Each of the parties shall cooperate with
and provide reasonable assistance to the other to the extent contemplated hereunder in the
performance of all obligations under this Agreement and the satisfaction of the conditions of this
Agreement. Upon the request of either party at any time, the other party shall promptly execute,
with acknowledgment of affidavit if reasonably required, and file or record such required
instruments and writings and take any actions as may be reasonably necessary under the terms of
this Agreement to carry out the intent and to fulfill the provisions of this Agreement or to
evidence or consummate the transactions contemplated by this Agreement_
9.18 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.
9.19 Attorneys' Fees. In the event of any action or proceeding brought by
either party against the other under this Agreement, the prevailing party shall be entitled to
recover its reasonable attorneys' fees and all fees, costs and expenses incurred for prosecution,
defense, consultation or advice in such action or proceeding. In addition to the foregoing the
prevailing party shall be entitled to its reasonable attorneys' fees and all fees, costs and expenses
incurred in any post judgment proceedings to collect or enforce the judgment. This provision is
separate and several and shall survive the merger of this Agreement into any judgment on this
Agreement.
9.20 Agent for Service of Process. In the event the Owner is not: a resident of
the State of California or it is an association, partnership or joint venture without a member,
partner or joint venturer resident of the State of California, or it is a foreign corporation, then in
any such event, the Owner shall file with the City Planning Director, upon its execution of this
Agreement, a designation of a natural person residing in the State of California, giving his or her
name, resident and business addresses, as its agent for the purpose of service of process in any
court action arising out of or based upon this Agreement, and the delivery to such agent of a
copy of any process in any such action shall constitute valid service upon the Owner. If for any
reason service of such process upon such agent is not feasible, then in such event the Owner may
be personally served with such process out of the County of Riverside, State of California and
such service shall constitute valid service upon the Owner. The Owner is amenable to the
process so served, submits to the jurisdiction of the Court so obtained and waives any and all
objections and protests hereto.
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9.21 Authority to Execute. The person or persons executing this Agreement on
behalf of the Owner warrants and represents that he/they have the authority to execute this
Agreement on behalf of his/their corporation, partnership or business entity and warrants and
represents that he/they has/have authority to bind the Owner to the performances of its
obligations hereunder.
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[Signature page follows]
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the day
and year first set forth above.
CITY:
CITY OF BEAUMONT
By:
Mayor, City of Beaumont
Attest:
City Clerk of the City of Beaumont
OWNER: ROLLING HILLS INDUSTRIAL, LLC, a
California limited liability company
APPROVED AND AUTHORIZED:
HART BEAUMONT, LLC, a California
limited liability company
By:
Title:
4130/04 9086.18
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By: McCray Street Development LLC,
a California limited liability company,
its managing member
By:
Roger D. Prend
EXHIBIT "A"
DESCRIPTION OF PROPERTY
The Northeast quarter of Section 8, Township 3 South, Range 1 West, San Bernardino Meridian,
in the City of Beaumont, County of Riverside, State of California.
Excepting therefrom those portions thereof conveyed to the County of Riverside by deed
recorded October 29, 1915 in Book 433, Page(s) 13; and in Book 433, Page(s) 7, both of Deeds,
records of Riverside County, California.
Also excepting therefrom those portions conveyed to the State of California, by deeds recorded
November 27, 1936 in Book 302, Page(s) 598; and October 25, 1957 in Book 2168, Page(s) 172,
both of Official Records of Riverside County, California.
Also excepting therefrom that portion conveyed to the County of Riverside by Grant Deed
recorded June 4, 1990 as Instrument/File No. 203972 and re-recorded July 19, 1996 as
Instrument/File No. 269400 and by Quitclaim Deed recorded December 5, 1996 as
Instrument/File No. 460740, all of Official Records of Riverside County, California.
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EXHIBIT "B"
MAP OF THE PROPERTY
B-1
EXHIBIT "C"
EXISTING DEVELOPMENT APPROVALS
• General Plan Amendment No. 04 -GPA -03
• Rolling Hills Specific Plan Amendment No. 2 (Crossroads Industrial Park)
• Addendum to Environmental Impact Report (SCH No. 98101012)
• Amendment and Restatement of Development Agreement (Crossroads Industrial Park)
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