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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) 5/11/04 4000.88 H&O: #10638 v3 , 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 5/11/04 4000.88 H&O: #10638 v3 1 6 6 7 7 7 7 8 8 8 8 9 9 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 5/11/04 4000.88 H&O: #10638 v3 11 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 5/11/04 4000.88 HAA: #10638 v3 1 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 5/11/04 4000.88 H&O: #10638 v3 2 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 5/11/04 4000.88 H&0: #10638 v3 3 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 5/11/04 4000.88 11&O: 810638 v3 4 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 3/11/04 4000.88 H&c): #10638 v3 5 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. 5/11/04 4000.88 n&O: #10638 v3 6 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. 5/11/04 4000.88 H&O: 810638 v3 7 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. 5/11/04 4000.88 H&O: #10638 v3 8 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. 5/11/04 4000.88 H&O: #10638 v3 9 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. 5/11/04 4000.88 H&O: #10638 v3 10 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 5/11/04 4000.88 H&O: 410638 v3 11 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 5/11/04 4000.88 H&O: #10638 v3 12 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 5111/04 4000.88 H&O: #10638 v3 13 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 5/11/04 4000.88 FILO: #10638 v3 (All Signatures To Be Notarized) 14 5/11/04 4000.88 H&O: #10638 v3 EXHIBIT A LEGAL DESCRIPTION OF I'HE PROPERTY Exhibit A 5/11/04 4000.88 A&O: #10638 v3 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 5/11/04 4000.88 H&O: #10638 v3 Exhibit C