HomeMy Public PortalAboutOrdinance 869ORDINANCE NO. 869
AN UNCODIFIED ORDINANCE OF THE CITY COUNCIL OF THE ITY
OF BEAUMONT, CALIFORNIA, ADOPTING THE DEVELOPME T
AGREEMENT BETWEEN THE CITY OF BEAUMONT AND
PARDEE HOMES
(PURSUANT TO GOVERNMENT CODE SECTIONS 65864-65869..)
WHEREAS, in order to strengthen the public planning process, to encourag private
participation in comprehensive planning, and the reduce the economic risks of develo s ment, 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 ' ity") to
enter into a Development Agreement; and
WHEREAS, the Beaumont City Council adopted an Addendum to the Deut
Plan Environmental Impact Report, in conjunction with the approval of Pardee Hom
Specific Plan on May 4, 2004, and the City Council finds that the findings made in c
with said Addendum are applicable and adequately address the environmental implic
associated with the subject actions; and
WHEREAS, the applicant, Pardee Homes, proposed and submitted and City staff has
reviewed and negotiated the Development Agreement between Pardee Homes and t City, to
govern the carrying out of the Sundance Specific Plan in a manner that will ensure c:rtain
anticipated benefits to both the City and Pardee Homes; and
WHEREAS, duly noticed public hearings were conducted on this matter as
law by the Planning Commission on June 8, 2004 and the City Council on July 20, 2
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 w
authorized in, and the regulations prescribed for, the land use district
real property is located;
ch Specific
s' Sundance
nnection
tions
The proposed agreement is in conformity with public convenience, g
and good land use planning practice;
equired by
04, and the
lopment
neral land
th the uses
in which the
eral welfare
ORDINANCE NO. 869
Page 2
The proposed agreement will not be detrimental to the health, safety a d general
welfare;
The proposed agreement will not adversely affect the orderly develop ent of the
property or the preservation of property values;
The proposed agreement will facilitate quality master planned develop ent, the
Sundance Specific Plan, which will aid in the economic development • f the City;
and
The proposed agreement will not have an adverse impact on the env
r
nment.
WHEREAS, the City Council of the City of Beaumont has reviewed the rea • ns for the
recommendation of approval by the Planning Commission as described above.
THEREFORE, THE CITY COUNCIL OF THE CITY OF BEAUMONT DOE
ORDAIN AS FOLLOWS:
SECTION 1: It has been determined that:
The provisions of the Development Agreement between the City and
Homes are consistent with the General Plan; and
The Development Agreement complies with all applicable zoning, su.
building regulations and with the Sundance Specific Plan; and
The Development Agreement states the duration of the Agreement sh
period of 25 years, sets forth the uses of the property, and the density
of use, and sets forth the maximum height and size of proposed buildi
provides for the reservation, dedication and improvement of land use
facility uses.
SECTION 2: The Development Agreement between the City and Pardee Hi
attached hereto as Exhibit "A" is hereby approved and the Mayor of the City of Bea
authorized and directed to execute said Development Agreement on behalf of the Ci
the date when by law this Ordinance shall take effect.
SECTION 3: This Ordinance shall take effect thirty (30) days after its final
within fifteen (15) days after its passage the City Clerk shall cause a summary to be
newspaper of general circulation, printed and published in the City of Beaumont, in
prescribed by law for publishing of ordinances of said City.
HEREBY
ardee
division and
1 be a
and intensity
gs and
for public
mes
mont is
y on or after
passage and
ublished in a
manner
ORDINANCE NO. 869
Page 3
MOVED, PASSED AND ADOPTED THIS 17th DAY OF August
2004 BY THE FOLLOWING VOTE:
AYES: Mayor Dressel, Council Members Fox, DeForge, Berg, and Killough.
NOES: None.
ABSTAIN: None.
ABSENT: None.
ATTEST:
/ A 'AO
CITY CLERK
f
MAYO T 4C OF B AUMONT
RECORDING REQUESTED BY, AND
WHEN RECORDED, MAIL TO:
City Clerk
City of Beaumont
550 East Sixth Street
Beaumont, California 92223
EXEMPT: GOV'T CODE § 6103
(Space above this line for Recorder's use)
DEVELOPMENT AGREEMENT
NO.
BETWEEN
THE CITY OF BEAUMONT
AND
PARDEE HOMES
(SUNDANCE SPECIFIC PLAN)
(Pursuant to California Government Code Sections 65864 - 65869.5
and City of Beaumont Resolution No. 1987-34)
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, 2004
IN THE STATE OF CALIFORNIA
IN AND FOR THE COUNTY OF RIVERSIDE
NO. 262
Notice of Public Hearin
STATEOF CALIFORNIA
_County of Riverside } SS
I am a citizen of the United States and a
resident of the County aforesaid; I am
over the age of eighteen years, and not a
party to or interested in the above entitled
matter. I am the principal clerk of the
printer of
The Weekly Record Gazette
a newspaper of general circulation, printed
and published weekly in the City of Ban-
ning, County of Riverside and which
newspaper has been adjudged a newspa-
per of general circulation by the Superior
Court of the County of Riverside, State of
California, under date of
October 14, 1966 Case Number 54737
that the notice, of which the annexed is a
printed copy, has been published in each
regular and entire issue of said newspaper
and not in any supplement thereof on the
following dates -to -wit.
7/16/04
all in the year 2004
I certify (or declare) under penalty of per-
jury that the foregoing is true and correct.
signature
Date 7/16/2004
at Riverside, California.
This space for County Clerk's Filing Stamp
LEGAL NOTICE
NOTICE IS HEREBY
GIVEN, that the Beaumont
City Council conducted a
public hearing on Tuesday,
July 20, 2004 at approxi-
mately 6:00 p.m. in the
room 5 at the Beaumont
Civic Center, 550 E. 6th
Street, Beaumont,
California 92223, to receive
testimony and comments
from all interested persons
regarding the adoption of
the following matter(s):
Ordinance No. 869
AN UNCODIFIED ORDI-
NANCE OF THE CITY
COUNCIL OF THE CITY
OF BEAUMONT, CALI-
FORNIA, ADOPTING THE
DEVELOPMENT AGREE-
MENT BETWEEN THE
CITY OF BEAUMONT AND
PARDEE HOMES (PUR-
SUANT TO GOVERN-
MENT CODE SECTIONS
65864-65869.5)
Date: July 13, 2004
Shelby Hanvey
Deputy City Clerk
The Record Gazette
No. 262
7/16, 2004
TABLE OF CONTENTS
Page
1. DEFINITIONS 2
2. EXFIIBITS 3
3. MUTUAL BENEFITS 3
4. INTEREST OF THE DEVELOPER 3
5. BINDING EFFECT OF AGREEMENT 4
6. PROJECT AS A PRIVATE UNDERTAKING 4
7. TERM 4
8. HOLD HARMLESS 4
9. VESTED RIGHT 4
10. DEVELOPMENT OF THE PROJECT 5
10.1 Phasing and Timing of Development 5
10.2 Effect of Agreement on Land Use Regulations 5
10.3 Application Processing 5
10.4 Administrative Changes and Amendments 5
10.5 Mello -Roos Communities Facilities Districts; Other Assessment Di.tricts
or Financing Mechanisms 6
10.6 Public Services and Facilities 6
10.7 Other Governmental or Quasi -Governmental Permits
10.8 Consistency Between This Agreement and Current Laws
10.9 Assessments, Fees, Mitigation and Exactions
10.10 Reimbursement by the City
11. RULES, REGULATIONS, REQUIREMENTS AND OFFICIAL POLICIE
11.1 New Rules
11.2 State and Federal Laws
12. AMENDMENT OR CANCELLATION OF AGREEMENT
13. ENFORCEMENT
14. PERIODIC REVIEW OF COMPLIANCE WITH AGREEMENT
15. Events of Default
15.1 Default by the Developer
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8
8
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TABLE OF CONTENTS
Page
15.2 Default by the City 9
15.3 Specific Performance Remedy 9
16. INSTITUTION OF LEGAL ACTION 10
17. WAIVERS AND DELAYS 10
17.1 Waiver 10
17.2 Third Parties 10
17.3 Force Majeure 10
18. NOTICES 10
19. ATTORNEYS' FEES 11
20. TRANSFERS AND ASSIGNMENTS 11
20.1 Right to Assign 11
20.2 Release Upon Transfer 11
21. COOPERATION IN THE EVENT OF LEGAL CHALLENGE 11
22. EMINENT DOMAIN 11
23. AUTHORITY TO EXECUTE 11
24. ESTOPPEL CERTIFICATES 11
25. RECORDATION 12
26. PROTECTION OF MORTGAGE HOLDERS 12
27. SEVERABILITY OF TERMS 13
28. SUBSEQUENT AMENDMENT TO AUTHORIZING STATUTE 13
29. INTERPRETATION AND GOVERNING LAW 13
30. SECTION HEADINGS 13
31. INCORPORATION OF RECITALS AND EXHIBITS 13
32. RULES OF CONSTRUCTION AND MISCELLANEOUS TERMS 13
32.1 Gender 13
32.2 Time of Essence 13
32.3 Cooperation 13
33. TENTATIVE TRACT MAP EXTENSIONS 13
34. DEUTSCH DEVELOPMENT AGREEMENT 14
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DEVELOPMENT AGREEMENT
This DEVELOPMENT AGREEMENT ("Agreement") is entere• into to be
effective on , 2004, between PARDEE HOMES, a California co .oration (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 . e 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 de
Agreement.
B. Government Code Sections 65864 - 65869.5 authorize the
into binding development agreements with persons having a legal or equitable in
property for the development of such property, all for the purpose of strengtheni
planning process, encouraging private participation and comprehensive planning
the economic costs of such development. The City has implemented the law cont
sections by adopting Resolution No. 1987-34, titled "Establishing Procedures and
for Consideration of Development Agreements" (such Resolution, togeth
aforementioned Government Code Sections, are being referred to herein as the "
Agreement Law").
C. This Agreement is adopted pursuant to the Development Agr
D. Developer owns a portion of the property and is under a
contract to acquire the remainder of the property located in the City and mor
described on Exhibit "A" and as shown on Exhibit "B" attached and made a
Agreement (the "Property").
E. The Developer intends to develop the Property in accord.
Amendment to the Deutsch Specific Plan ("Sundance Specific Plan") as
Development Plan, as hereinafter defined (the "Project"). The Project is
intensive, especially in its initial phases, which, in order to make the Project eco
fiscally feasible, requires major commitment to and investment in public faciliti
and off-site infrastructure improvements prior to the construction and sale
residential and commercial buildings. This Agreement will facilitate the logica
development of the Project in the City.
F. The City has determined the Development Plan is consistent
General Plan and has approved the Development Plan in order to promote the heal
welfare of its citizens and protect the quality of life of the community and th
environment. The Development Plan consists of the Sundance Specific Plan, the
the Sundance EIR, and Tentative Tract Map Nos. 31468, 31469, 31470 and 3189
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ned in this
ity to enter
erest in real
g the public
nd reducing
ined in such
equirements
r with the
evelopment
ment Law.
inding legal
particularly
part of this
ce with the
part of the
ighly capital
omically and
s and on-site
r leasing of
and orderly
with the City
h, safety and
surrounding
ddendum to
approved by
the City Council of City on May 4, 2004 by Resolution No. 2004-23. As part of t e process of
approving the Development Plan, the City has prepared and reviewed, pursuant to t e California
Environmental Quality Act ("CEQA"), an Addendum to the Deutsch Specific Pl. n ER, with
respect to the potential significant impacts of the Project resulting from develo ment of the
Property. The City has determined based on that review that the Addendum to the EIR
adequately addresses the potential significant impacts of the Project, and that accor ingly neither
a supplemental nor subsequent environmental impact report is required for the Deve opment Plan
and/or this Agreement.
G. All of the proceedings relating to the approval of the Agreem
conducted in accordance with the Development Agreement Law and CEQA.
H. On , 2004, the City Council of the City adopt
No. approving this Agreement with the Developer.
L The terms and conditions of this Agreement have underg
review by the City and its City Council and have been found to be fair, just and re
the City has found and determined that the execution of this Agreement is in the b
the public health, safety and general welfare of the City and its residents and that
Agreement constitutes a present exercise of its police power.
AGREEMENT
In light of the foregoing Recitals, which are an operative part of thi
the parties agree as follows:
1. DEFINITIONS.
"Agreement" is this Development Agreement.
"Agreement Date" is the date this Agreement is approved by the Ci
"Alternative Financing Mechanism" has the meaning given t
Section 10.5 below.
"CEQA" is the California Environmental Quality Act, Public Re
section 21000 et seq.
"CFD" is a Community Facilities District formed pursuant to th
Community Facilities Act of 1982, California Government Code section 53312 et s
"City" is the City of Beaumont, California.
"City's Discretion" is discretion exercised by the City in accord
policies and principles set forth in the Development Plan, this Agreement and the
effect as of the Effective Date such that the approvals given by the City to t
pursuant to the exercise of such discretion shall not be unreasonably withheld or de
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nt have been
d Ordinance
ne extensive
onable, and
st interest of
opting this
Agreement,
y Council.
at phrase in
ources Code
Mello -Roos
9.
ce with the
rocedures in
e Developer
yed.
"Developer" is Pardee Homes, a California corporation, their subsi
and successors in interest to all or any part of the Property.
"Development Agreement Law" is California Government Code
et seq., and Resolution No. 1987-34, titled "Establishing Procedures and Req
Consideration of Development Agreements."
"Development Plan" is, collectively, the permits, conditions and ap
on Exhibit "C."
"Effective Date" is that date which is the later to occur of (a) the ex
time for filing a referendum petition relating to this Agreement if no such petition i
such period, or (b) the certification of the results of a referendum election are declar
this Agreement if a referendum petition is filed within the applicable period.
"EIR" is Addendum to the Deutsch Specific Plan Environmental I
certified by the City Council of City on January 14, 1991 (Resolution No. 1991-03)
"Project" is the proposed mixed-use development of the Property in
the Development Plan and associated amenities, including, without limitation,
off-site public and private improvements, and land uses consisting of residential (a
4,450 dwelling units), commercial, parks and schools, as the same may be fu
enhanced or modified pursuant to the provisions of this Agreement.
"Property" is the real property on which the Project is, or will
described on Exhibit "A" attached hereto and shown on Exhibit "B" attached hereto
2. EXHIBITS. The following documents are referred to in this Agreement, a
and incorporated herein by this reference:
Exhibit Designation
A
B
C
Descri tion
Legal Description of the Property
Map of the Property
List of Permits and Approvals
iary entities,
ons 65864
rements for
royals listed
iration of the
filed within
d approving
pact Report
luded within
on-site and
proximately
her defined,
e, located as
ached hereto
3. MUTUAL BENEFITS. This Agreement is entered into for the purpose of
the Development Plan for the Project in a manner that will secure certain as
Developer that the Property may be developed in accordance with the Developmen
Agreement, and certain benefits to the City as set forth in this Agreement. The
Developer agree that, due to the size and duration of the Project, the Agreement i
achieve those desired benefits.
4. INTEREST OF THE DEVELOPER. The Developer represents that
owns a legal fee in a portion of the Property and an equitable interest in a portion o
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mplementing
ances to the
Plan and this
City and the
necessary to
e Developer
the Property.
5. BINDING EFFECT OF AGREEMENT. The terms and conditions of this Agreement
shall be binding upon and inure to the benefit of the parties and their successors and assigns as
set forth herein.
6. PROJECT AS A PRIVATE UNDERTAKING. It is specifically understood and
agreed that the development of the Project is a private and not a public sector development, that
neither party is acting as the agent of the other in any respect hereunder, and that each party is an
independent contracting entity with respect to the terms, covenants and conditions contained in
this Agreement. No partnership, joint venture or other association of any kind is formed by this
Agreement. The only relationship between the City and the Developer is that of a government
entity regulating the development of private property by the owner of the Property and the
equitable owner of the Deutsch Parcels.
7. TERM. The term of this Agreement shall be twenty-five (25) years following the
Effective Date. Expiration of the term of this Agreement shall not in any manner affect rights
which have otherwise vested under applicable law.
8. HOLD HARMLESS The Developer shall hold the City, its officers, agents, employees
and representatives harmless from liability for damage or claims for damage for personal injury,
including death and claims for property damage, arising on the Property from the wrongful or
negligent activities of the Developer or those of the Developer's contractors, subcontractors,
agents, employees or other persons acting on the Developer's behalf which relate to the Project.
In the event any person not a party or a successor to a party to this Agreement institutes any type
of action against the City with respect to this Agreement, City and Developer shall cooperate in
defending against the action, provided that City may, in its sole discretion, elect to tender the
defense of such action to the Developer. If the Developer accepts the tender, the Developer shall
thereafter hold City harmless from and defend City from all costs and expenses incurred in the
defense of such action, provided that City fully cooperates with the Developer in the defense of
such action. If the Developer declines the tender, then City shall have no further' obligation or
duty to defend the action.
9. VESTED RIGHT. By entering into this Agreement the City grants to the Developer a
vested right to develop the Property in accordance with the Development Plan. The City shall
not enact and enforce against the Project and the Development Plan an ordinance, policy, rule,
regulation or other measure which significantly alters the rate, type, manner, density, timing or
sequencing of the Project and the Development Plan. In addition to and not in limitation of the
foregoing, it is the intent of the Developer and the City that no moratorium, whether relating to
the rate, type, manner, density, timing or sequencing of the Project and whether or not enacted by
initiative or otherwise, except a moratorium imposed by the City to implement State or Federal
laws, statutes, regulations, policies or orders as provided in Section 11.2, affecting parcel or
subdivision maps, building permits, plot plans, special use permits, conditional use permits,
occupancy certificates or other entitlements to use or permits approved, issued or granted within
the City, or portions of the City, shall not apply to the Project to the extent such moratorium or
other limitation is in conflict with the Project and the Development Plan. Notwithstanding the
foregoing, should an ordinance, general plan or zoning amendment, measure, moratorium,
policy, rule, regulation or other limitation enacted by the citizens of the City through the
initiative process be determined by a court of competent jurisdiction to invalidate or prevail over
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all or any part of the Development Plan, the Developer shall have no recourse against the City
pursuant to this Agreement. The foregoing shall not be deemed to limit the Developer's right to
appeal any such determination of such ordinance, general plan or zoning amendment, measure,
policy, rule, regulation, moratorium or other limitation which purports to invalidate or prevail
over all or any part of this Agreement.
10. DEVELOPMENT OF THE PROJECT.
10.1 Phasing and Timing of Development. When or the order in which Project
phases will be developed, or whether it will be developed at all, depend upon numerous factors
which are not within the control of the Developer or City, such as market orientation and
demand, interest rates, availability of funding, competition and other similar factors.
Accordingly, to the extent permitted by the Development Plan and this Agreement, the
Developer shall have the right to develop the Project pursuant to the Development Plan in phases
in such order and at such times as the Developer, in its sole discretion, deems appropriate within
the exercise of its subjective business judgment; provided, however, that the City reserves the
right to review, condition and approve each phase through discretionary and ministerial
approvals consistent with this Agreement.
10.2 Effect of Agreement on Land Use Regulations. The rules, regulations and
policies governing permitted uses of property, the density and intensity of use of property, the
maximum height and size of proposed buildings and the design, improvement, construction and
development standards and specifications applicable to development of the Property are those
rules, regulations and policies in force as of the date of this Agreement, and those rules,
regulations and official policies which may hereinafter be adopted by the City in accordance with
Section 11.1 hereof, or State or Federal laws, statutes, regulations, policies or orders as provided
in Section 11.2.
10.3 Application Processing. In connection with any approval which the City is
permitted or has the right to make under this Agreement relating to the Project and the
Development Plan, or otherwise under its rules, regulations and official policies, the City shall
exercise the City's discretion or take action in a manner which is as expeditious as reasonably
possible.
10.4 Administrative Changes and Amendments. The parties acknowledge that
further planning and development of the Project may demonstrate that refinements and changes
are appropriate with respect to the details of the Project or interpretation of the Development
Plan. If and when the parties find that minor changes or adjustments are necessary or
appropriate to the Project or the Development Plan, they shall, unless otherwise required by law,
effectuate such changes or adjustments through administrative amendments approved by the
Director of Planning, which, after execution, shall be attached hereto as addenda and become a
part hereof, and may be further changed and amended from time to time as necessary, with
approval by the Director of Planning as may be requested by the Developer. Minor changes or
amendments shall be those which are consistent with the overall intent of the Development Plan
and this Agreement and which do not materially alter the overall nature, scope, or design of the
Project. Any such minor administrative changes or amendments shall not be deemed to be an
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amendment to this Agreement under Government Code Section 65868 and, unless otherwise
required by law, no such administrative amendments shall require prior notice or hearing.
10.5 Mello -Roos Communities Facilities Districts; Other Assessment Districts or
Financing Mechanisms. Pursuant to Chapter 2.5 (commencing with section 53312) Part 1,
Division 2, Title 5 of the Government Code of the State of California, commonly known as the
"Mello -Roos Community Facilities Act of 1982," the Developer may, at its sole election, petition
the City Council of the City or a joint powers agency in which the City is a member to establish a
Community Facilities District ("CFD"), in accordance with the City's policies in existence on the
Effective Date. Alternatively, or in addition thereto, the Developer may request that the City
initiate and complete proceedings under the Municipal Improvement Act of 1911, the Municipal
Improvement Act of 1913, the Improvement Bond Act of 1915, the Landscaping and Lighting
Act of 1972, or any and all other available public financing mechanism, to provide public
conduit financing for the construction of public infrastructure improvements on the Property
("Alternative Financing Mechanisms"). If so requested by the Developer, the City shall
cooperate with the Developer (or, for matters beyond its control, shall use its best efforts) in
taking all steps necessary to cause the CFD or Alternative Financing Mechanisms to issue bonds
for such purposes. If the Property is included within a CFD or Alternative Funding Mechanism
with other surrounding properties, the special taxes or special assessments burdening the various
properties so included shall be apportioned on a fair share basis related to the benefit derived by
each of such properties in accordance with City policies at the time such property is included.
10.6 Public Services and Facilities. The Project and Development Plan requires an
integrated roadway system, and other public facilities including parks, schools, storm drains, and
water and sewer facilities. City will reasonably assist Developer in obtaining public facilities
and services for the Project on a timely basis in keeping with the pace of development of the
Property. To the extent that the Developer constructs, installs or provides financing for public
facilities or other public infrastructure improvements that benefit lands outside of the Property,
the City shall use best reasonable efforts to adopt such ordinances, mitigation fees, liens or
assessments as are necessary to provide credits, reimbursements, or in-kind funding to the
Developer for the fair share of the benefits conferred upon such lands other than the Property by
such public facilities or infrastructure improvements.
10.7 Other Governmental or Quasi -Governmental Permits. The Developer shall
apply for such other permits and approvals as may be required by other govemmental or
quasi -governmental agencies having jurisdiction over the Project (such as public utilities or
utility districts, or other federal or state agencies) to the extent required for the development of,
or provision of, services and facilities to the Project as set forth in the Development Plan. The
City shall cooperate with and assist the Developer in obtaining such permits and approvals, and,
where necessary in making application for such approvals or permits. The Developer shall be
solely responsible for all costs and shall be responsible for the processing of all such permits.
10.8 Consistency Between This Agreement and Current Laws. The City represents
that as of the date of the execution of this Agreement, there are no rules, regulations, ordinances
or official policies of the City that would interfere with the development of the Project according
to the Development Plan.
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10.9 Assessments, Fees, Mitigation and Exactions. The City shall not impose any
future assessment, fee, mitigation measure or exaction on the Property, the Project or the
Development Plan or any portion thereof, except (a) those existing and proposed assessments,
fees, mitigation measures and exactions in existence on the date of this Agreement, (b) such
other fees, assessments and exactions as may be adopted or imposed by the City in conformance
with the requirements of Article XIII D of the California Constitution, (c) such other
development impact fees or categories of development impact fees which are adopted on a City
or County -wide basis or as required as a condition to obtaining County funding; and (d) such
other development impact fees or categories of development impact fees which are imposed on
other development projects in the City and are adopted and levied based on a benefit assessment.
Fees payable to City shall be at rates applicable on the date the fee is paid. City shall recognize
and apply a dollar -for -dollar in -lieu credit against any and all fees, for and equal to the cost of
improvements and/or dedications made in the development of the Project by the Developer, or
funded by any CFD or Alternative Financing Mechanism including the Property, and for which
the fees would otherwise be imposed. City further agrees to use any fees paid with respect to
development of the Project to fund improvements which benefit the Project, to the fullest
reasonable extent available and applicable under the law.
10.10 Reimbursement by the City. Pursuant to Government Code Section 65865.2,
the City hereby agrees that as future development fees, assessments and exactions are imposed
on future projects which have benefited from the fees, assessments and exactions paid by the
Developer, the City shall promptly reimburse the Developer to the extent that such fees,
assessments and exactions paid by Developer benefited lands outside of the Property, but only to
the extent that the City actually receives or collects such fees, assessments or exactions for a
period of ten years from the date the fee was paid.
11. RULES, REGULATIONS, REQUIREMENTS AND OFFICIAL POLICIES.
11.1 New Rules. This Agreement shall not prevent the City from applying the
following new rules, regulations, requirements and policies, if applied on a City-wide or area of
benefit basis:
11.1.1 Processing fees and charges imposed by the City which cover only the
estimated actual costs to the City of processing applications for development approvals, for
monitoring compliance with any development approvals or for monitoring compliance with
environmental impact mitigation measures.
11.1.2 Procedural regulations relating to hearing bodies, petitions, applications,
notices, findings, records, hearings, reports, recommendations, appeals and any other matter of
procedure, provided that such changes in procedural regulations do not have the effect of
materially interfering with the benefits conferred by this Agreement.
11.1.3 Regulations governing construction standards and specifications
including, without limitation, the City's Building Code, Plumbing Code, Mechanical Code,
Electrical Code and Fire Code.
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11.1.4 Regulations which are necessary to protect public health and safety,
provided that to the maximum extent possible such regulations shall be designed, construed and
applied in a manner to preserve the benefits of this Agreement.
11.1.5 New or increased fees or categories of fees imposed as a condition of
development, for the purpose of defraying all or a portion of the cost of public facilities (as
defined in Government Code Sections 66000 et seq.) related to development projects.
11.1.6 Regulations which are in conflict with the Development Plan or this
Agreement if such regulations have been consented to in writing by the Developer.
11.2 State and Federal Laws. In the event that State or Federal laws or regulations
enacted after this Agreement is executed prevent or preclude compliance with one or more of the
provisions of this Agreement, such provisions of this Agreement shall be modified or suspended
as may be necessary to comply with such State or Federal laws or regulations; provided,
however, that this Agreement shall remain in full force and effect to the extent it is not
inconsistent with such laws or regulations and to the extent such laws or regulations do not
render such remaining provisions impractical to enforce.
12. AMENDMENT OR CANCELLATION OF AGREEMENT. This Agreement may be
amended or canceled in whole or in part only by mutual consent of the parties in the manner
provided for in Government Code Section 65868.
13. ENFORCEMENT. Unless amended or canceled as provided in Section 12 above, or
modified or suspended pursuant to Government Code Section 65869.5, this Agreement is
enforceable by either party hereto notwithstanding any change in any applicable general or
specific plan, zoning, or subdivision regulation or standard adopted by the City (or by the voters
of the City unless found by a court of competent and final jurisdiction to prevail over this
Agreement) which alters or amends the Development Plan or is inconsistent with this
Agreement.
14. PERIODIC REVIEW OF COMPLIANCE WITH AGREEMENT. The City shall
review this Agreement at least once every year from the date this Agreement is executed.
During each periodic review, each party is required to demonstrate good faith compliance with
the teens of this Agreement. Such periodic review shall be conducted administratively by the
City Manager and any appropriate department heads designated by the City Manager to perform
such periodic review. If the City Manager finds that the Developer is not in good faith
compliance with this Agreement, the Developer shall have the right to appeal such finding to the
City Council. The City Council on appeal shall not hold a public hearing to review a finding that
the Developer is not in good faith compliance with this Agreement unless so requested by the
Developer in writing at the time of the submission of such appeal. The City shall notify the
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.
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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 steps reasonably
necessary to bring itself into compliance as required and thereafter diligently pursue such steps to
completion, then the City shall be deemed to be in default under the terms of this Agreement and
if such failure persists after thirty days prior written notice, the Developer may terminate this
Agreement or seek specific performance as set forth in Section 15.3.
15.3 Specific Performance Remedy. Due to the size, nature and scope of the Project,
it will not be practical or possible to restore the Property to its natural condition following
development of all or any portion of the Property. After such development, the Developer may
be foreclosed from other choices it may have had to utilize the Property. The Developer has
invested significant time and resources and performed extensive planning and processing of the
Project in agreeing to the terms of this Agreement and will be investing substantially more time
and resources in implementing the Project in reliance upon the 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 prevent
either party from seeking recovery of appropriate damages in the event that the terms of this
Agreement are breached. The City and the Developer acknowledge that if the Developer is in
default of its obligations under this Agreement, the City shall have the right to refuse to issue any
permits or other approvals to which the Developer would not otherwise have been entitled but
for this Agreement.
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16. INSTITUTION OF LEGAL ACTION. In addition to any other rights or remedies,
either party may institute legal action to cure, correct or remedy any default, to enforce any
covenants or agreements herein, to enjoin any threatened or attempted violation hereof, to
recover damages for any default or to obtain any other remedies consistent with the purpose of
this Agreement. Any such legal action shall be brought in the Superior Court of the State of
California for the County of Riverside. The parties hereto waive any right to trial by jury.
17. WAIVERS AND DELAYS.
17.1 Waiver. Failure by a party to insist upon the strict performance of any of the
provisions of this Agreement by the other party, and failure by a party to exercise its rights upon
a default by the other party hereto, shall not constitute a waiver of such party's right to demand
strict compliance by such other party in the future.
17.2 Third Parties. Nonperformance shall not be excused because of a. failure of a
third person except as provided in Section 17.3 below.
17.3 Force Majeure. Neither party shall be deemed to be in default for failure or
delay in performance of any of its obligations under this Agreement if caused by floods,
earthquakes, other Acts of God, fires, wars, riots or similar hostilities, strikes, other labor
difficulties, government regulations or other causes beyond either of the parties' control. If any
such event shall occur, the term of this Agreement and the time for performance by the
Developer of any of its obligations hereunder or pursuant to the Development Plan shall be
extended by the period of time that such events prevent or delay development of the Project.
18. NOTICES. All notices required or provided for under this Agreement shall be in writing
and delivered in person and deposited in the United States mail, postage prepaid and addressed
as follows:
To the City: The City of Beaumont
550 East Sixth Street
Beaumont, California 92223
Attn: City Manager
With a copy to: Mr. Joseph Aklufi
Aklufi & Wysocki
3403 Tenth Street, Suite 610
Riverside, CA 92501
To the Developer: Pardee Homes
1181 California Ave., Suite 103
Corona, CA 92881
Attn: Michael Taylor
With a copy to: Hewitt & O'Neil LLP
19900 MacArthur Blvd., Suite 1050
Irvine, California 92612
Attn: Dennis D. O'Neil, Esq.
Any party may change its address stated herein by giving notice, in writing, to the other parties.
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19. ATTORNEYS' FEES. If legal action is brought by either party against the other for
breach of this Agreement, or to compel performance under this Agreement, the prevailing party
shall be entitled to an award of reasonable attorneys' fees and costs.
20. TRANSFERS AND ASSIGNMENTS.
20.1 Right to Assign. The Developer shall have the right to sell, assign or transfer this
Agreement and any and all of its rights, duties and obligations hereunder, in whole or in part, to
any person or entity at any time during the 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, or a portion thereof. The assignment shall not be effective
without the City's prior approval, which shall not be unreasonably withheld, to ensure that the
assignment will not prevent the orderly development of the Project consistent with the
Agreement or Development Plan. In the event of any such assignment, the transferee shall
thereafter be solely liable for the performance of all obligations of the Developer relating to the
portion of the Property, or interest therein, so transferred. Such transferee or the Developer shall
notify the City, in advance, and in writing of their intent to transfer such obligations.
20.2 Release Upon Transfer. Upon the sale, transfer or assignment of the
Developer's rights and interests under this Agreement as 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 this Agreement or any portion thereof, the parties hereby agree to cooperate in
defending such action, subject to the provisions of Section 8. In the event of any litigation
challenging the effectiveness of this Agreement, or any portion hereof, this Agreement shall
remain in full force and effect while such litigation, including any appellate review, is pending.
22. EMINENT DOMAIN. No provision of this Agreement shall be construed to limit or
restrict the exercise by the City of its power of eminent domain.
23. AUTHORITY TO EXECUTE. The person or persons executing this Agreement on
behalf of the Developer warrant and represent that they have the authority to execute this
Agreement on behalf of the Developer and warrant and represent that they have the authority to
bind the Developer to the performance of its obligations hereunder.
24. ESTOPPEL CERTIFICATES. The City shall at any time upon not less than thirty (30)
days' prior written notice from the Developer execute, acknowledge and deliver to the Developer
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a statement in writing (i) certifying that this Agreement is unmodified and in full force and effect
(or, if modified, stating the nature of such modification and certifying that this Agreement, as so
modified, is in full force and effect); (ii) certifying the amounts of the fees, assessments and
exactions that have been received from the Developer and what amounts, if any, remain
outstanding; and (iii) acknowledging that there are not, to the City's knowledge, any defaults if
any are claimed. Any such statement may be conclusively relied upon by any prospective
purchaser, lender or joint venture partner.
25. RECORDATION. This Agreement and any amendment or cancellation hereto shall be
recorded in the Official Records of the County of Riverside, by the City Clerk within the period
required by Section 65868.5 of the Government Code.
26. PROTECTION OF MORTGAGE HOLDERS. The parties hereto agree that this
Agreement shall not prevent or limit the Developer, in any manner, at the Developer's sole
discretion, from encumbering the Property or any portion thereof or any improvement thereon by
any mortgage, deed of trust or other security device securing financing with respect to the
Property. The City acknowledges that the lenders providing such financing may require certain
interpretations, estoppel certificates and modifications to this Agreement and agrees upon
request, from time to time, to meet with the Developer and representatives of such lenders to
negotiate in good faith any such request for interpretations, estoppel certificates or modifications.
The City will not unreasonably withhold its consent to any such requested interpretation,
estoppel certificate or modification provided the same is consistent with the intent and purposes
of this Agreement. The holder(s) of any mortgage, deed of trust or other security instrument
encumbering the Property (each, a "Mortgagee") shall have the following rights and privileges:
26.1.1 Neither entering into this Agreement nor a breach of this Agreement shall
defeat, render invalid, diminish or impair the lien of any mortgage on the Property made in good
faith and for value, unless otherwise required by law.
26.1.2 Any Mortgagee which has submitted a request in writing to the City in the
manner specified herein for giving notices, shall be entitled to receive written notification from
City of any default by the Developer in the performance of the Developer's obligations under
this Agreement.
26.1.3 If the City timely receives a request from a Mortgagee requesting a copy
of any notice of default given to the Developer under the terms of this Agreement, the City shall
provide a copy of that notice to the Mortgagee within ten (10) days of sending the notice of
default to the Developer. Mortgagee's not party to this Agreement. If the cure period for a
default by the Developer set forth in Section 15.1 above has expired and such default has not
been cured, the Mortgagee shall be provided with an additional thirty (30) day period after the
expiration of such cure period in which to commence all steps reasonably necessary to bring the
Developer in compliance as required under this Agreement and thereafter diligently pursue such
steps to completion. During such cure period, and if the default is ultimately cured, the City
shall not terminate this Agreement.
26.1.4 Any Mortgagee who comes into possession of the Property, or any part
thereof, pursuant to foreclosure of the mortgage or deed of trust, or deed in lieu of such
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foreclosure, shall take the Property, or part thereof, subject to the terms of this Agreement.
Notwithstanding any other provision of this Agreement to the contrary, no Mortgagee shall have
an obligation or duty under this Agreement to perform any of the Developer's obligations or
other affirmative covenants of the Developer hereunder, or to guarantee such performance;
provided, however, that to the extent that any covenant to be performed by the Developer is a
condition precedent to the performance of a covenant by City, the performance thereof shall
continue to be a condition precedent to City's performance hereunder, and further provided that
any sale, transfer or assignment by any Mortgagee in possession shall be subject to the
provisions of this Agreement.
27. SEVERABILITY OF TERMS. If any term, provision, covenant or condition of this
Agreement shall be determined invalid, void or unenforceable, the remainder of this Agreement
shall not be affected thereby to the extent such remaining provisions are not rendered impractical
to enforce.
28. SUBSEQUENT AMENDMENT TO AUTHORIZING STATUTE. This Agreement
has been entered into in reliance upon the provisions of the Development Agreement Law in
effect as of the Agreement Date. Accordingly, subject to Section 11.2 above, to the extent a
subsequent amendment to the Development Agreement Law would affect the provisions of this
Agreement, such amendment shall not be applicable to the Agreement unless necessary for this
Agreement to be enforceable or unless this Agreement is modified pursuant to the provisions set
forth in the Agreement and Government Code Section 65868 in effect on the Agreement Date.
29. INTERPRETATION AND GOVERNING LAW. This Agreement andany 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 J and
attached Exhibits "A" through "E" 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.
33. TENTATIVE TRACT MAP EXTENSIONS. In accordance with the provisions of
Section 66452.6 of the California Government Code, tentative subdivision tract map(s) or
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tentative parcel map(s), heretofore or hereafter approved in connection with development of the
Property, shall be granted an extension of time for the term of this Agreement.
34. DEUTSCH DEVELOPMENT AGREEMENT. This Agreement shall supersede that
certain Development Agreement between the City and Highland Farms, Aleisian Farms and
Banning Farms (Deutsch) dated April 25, 1991 and recorded on May 24, 1991 in the Office of
the Riverside County Recorder ("Deutsch Development Agreement"), except for any obligation
Developer may have to provide access to the City's sewer system to those properties located on
Eighth Street as may be required under the terms of the Deutsch Development Agreement.
The parties have executed this Development Agreement on the date and year first
written above.
"City"
THE CITY OF BEAUMONT, a
municipal corporation of the State of California
"Developer"
PARDEE HOMES, a California corporation
By:
By:
Title
Title
SIGNED AND CERTIFIED THAT A COPY OF
THIS DOCUMENT HAS BEEN DELIVERED TO
THE MAYOR OF THE CITY COUNCIL
By:
Lynn Chance, City Clerk
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EXHIBIT A
LEGAL DESCRIPTION OF I'HE PROPERTY
Exhibit A
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EXHIBIT B
MAP OF THE PROPERTY
Exhibit B
EXHIBIT C
LIST OF PERMITS AND APPROVALS
Sundance Specific Plan
Tentative Tract Map Nos. 31468, 31469, 31470 and 31893
Addendum to the Sundance Specific Plan EIR
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Exhibit C