HomeMy Public PortalAboutTown of Truckee Gray's Crossing Development AgreementTABLE OF CONTENTS
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RECITALS: ................................................................................................................................... 4
ARTICLE 1 : GENERAL PROVISIONS ................................................................................... 6
1.1 The Project. .............................................................................................................. 6
1.2 Phasing Plan ............................................................................................................. 6
1.3 Other Definitions ..................................................................................................... 9
1.4 Exhibits .................................................................................................................. 11
1.5 Term of Agreement and Effecti ve Date ................................................................ .11
1.6 Conflicting Provisions ........................................................................................... 11
1. 7 Vested Rights ......................................................................................................... 11
1.8 Assignment and Assumption ................................................................................. 12
1.9 Covenants Running With the Land ...................................................................... 12
1.10 Amendment to Agreement ................................................................................... 12
1.11 Notices .................................................................................................................. 13
1.12 Recordation of Agreement ................................................................................... 14
1.13 Applicable Law .................................................................................................... 14
1.14 Third Party Legal Challenge ................................................................................ 14
1.15 Legal Proceedings and Venue .............................................................................. 15
1.16 Force Majeure ...................................................................................................... 15
1.17 Operating Memorandum ....................................................................................... 15
ARTICLE 2: STANDARDS OF PROJECT DEVELOPMENT ............................................. 15
2.1 Permitted Uses and Development Standards ......................................................... 15
2.2 Changes to Existing Land Use Regulations ........................................................... 16
2.3 Phasing of Project .................................................................................................. 16
2.4 Obligations and Rights of Mortgage Lenders ........................................................ 17
2.5 Execution of Agreement ........................................................................................ 17
2.6 Affordable Housing Requirement .......................................................................... 17
2.7 Streets ................................................................................................................... 18
ARTICLE 3 : COMMUNITY BENEFITS OBTAINED
FROM TOWN APPROVAL OF DEVELOPMENT AGREEMENT .................................... 18
3.1 Reimbursement to Tahoe Truckee Unified School District .................................. 18
3.2 Sales and Use Tax Allocations /Locals' Opportunities .......................................... 18
3.3 Local Economic Opportunity ................................................................................. 19
3 .4 Buy Local Requirement ......................................................................................... 19
3.5 Local Recreational Benefits ................................................................................... 20
3.6 Mfordable Housing .............................................................................................. 21
3 .7 Transit Plan ............................................................................................................ 21
3.8 Dedication ofReal Property ................................................................................... 22
3.9 Use ofVillage for Community Events ................................................................... 23
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3.10 Performing Arts Center ......................................................................................... 23
3.11 Open Space Funding .............................................................................................. 24
3 .12 Substitute Community Benefits ............................................................................. 24
ARTICLE 4: ENTITLEMENT AND PERMIT PROCESSING, INSPECTIONS,
AND RELATED MATTERS ...................................................................................................... 24
4 .1 Town Approvals ..................................................................................................... 24
4 .2 Duty to Grant and Implement ............................................................................... 26
4 .3 Timely Processing .................................................................................................. 26
4 .4 Cooperation ............................................................................................................ 26
4 .5 Life of Subdivision Maps, Development Approvals , and Permits ........................ 26
4 .6 Applicable Fees ..................................................................................................... 26
ARTICLE 5: DEFAULT, TERMINATION, ENFORCEMENT, & OTHER
MISCELLANEOUS PROVISIONS ........................................................................................... 27
5.1 General Provisions ................................................................................................. 27
5.2 Annual Review ...................................................................................................... 28
5.3 Estoppel Certificates .............................................................................................. 28
5.4 Default by Landowner/Withholding of Building Permit ...................................... 29
5.5 Default by Town ................................................................................................... 29
5.6 Cumulative Remedies of Parties .......................................................................... 29
5.7 Termination Upon Completion of Development ................................................... 29
5.8 Effect of Termination on Obligations ................................................................... 30
5.9 Effect of Termination on Vested Rights ............................................................... 30
5.10 Partial Invalidity .................................................................................................... 30
5.11 Attorneys' Fees ....................................................................................................... 30
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DEVELOPMENT AGREEMENT
'If_s D EVELOPM ENT AGREEMENT ("Agreement") is entered into
this £ of March 2004, by and between the Town of Truckee , a municipal
corporation ("Town"), and Truckee Land LLC . a limited liability company
("Landowner"), pursuant to the provisions of the California Government Code
relating to d ev elopment agreements (Government Code §65864 , et seq.)
Recitals
A. In order to strengthen the public land use planning process, to
encourage private participation in the process, to reduce the economic risk of
development and to reduce th e waste of resources , the Legislature adopted the
Development Agreement Statutes (Government Code §§65864 , et seq. of the
Government Code).
B. The Development Agreement Statute permits cities to enter into
agreements with landowners for their mutual benefit in a manner not otherwise
available to the contracting parties . Such agreements , as authorized by the
Development Agreement Statutes , can assure landowners they may proceed
with projects assured that approvals granted by public agencies will not change
during the period of development of their projects. Cities are equally assured
that costly infrastructure and public facilities such as , but not limited to, roads,
sewers, utilities , transportation systems , and affordable housing will be
available at the time that proposed developments are completed and utilized.
C. This Agreement pertains to that certain development project
(the "Project") generally described as Gray's Crossing, a planned development
and golf resort to be developed on property more particularly described in
Exhibit "A" (the "Property" or "Subject Property") attached hereto and
incorporated herein by reference. The Project is more particularly described
in, and is the subject of, those certain land use approvals granted by the
Truckee Town Council on February 5, 2004 and February 19, 2004 , as listed in
Recital D below . All of the parties to this Agreement have, in good faith,
negotiated the terms hereof which carry out the legislative purpose set forth in
Recital B above . The parties to this Agreement mutually desire to achieve the
full development and completion of the Project. The completion of the Project
will allow the goals and policies of the Truckee General Plan and Gray's
Crossing Specific Plan to be complied with.
D. Town, in response to earlier applications and after public
hearings and environmental analysis, has granted the following approvals,
subject to approval of this Agreement:
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" R e s o l u t i o n N o . 2 0 0 3 - 5 4 c e r t i f y i n g t h e F i n a l E n v i r o n m e n t a l I m p a c t R e p o r t ;
a p p r o v i n g t h e u s e p e r m i t , p l a n n e d d e v e l o p m e n t , t e n t a t i v e m a p , a n d l o t l i n e
a d j u s t m e n t f o r t h e p r o j e c t , s u b j e c t t o c o n d i t i o n s ;
" R e s o l u t i o n N o . 2 0 0 3 - 5 3 a b a n d o n i n g p u b l i c u t i l i t y a n d a c c e s s e a s e m e n t s w i t h i n
t h e n o r t h h a l f o f S e c t i o n s 1 1 a n d 2 , T l 7 N , R l 6 E , M D B M , s u b j e c t t o c o n d i t i o n s ;
" R e s o l u t i o n N o . 2 0 0 3 - 5 6 a p p r o v i n g t h e G r a y ' s C r o s s i n g S p e c i f i c P l a n ;
" O r d i n a n c e N o . 2 0 0 3 - 0 7 a p p r o v i n g a n a m e n d m e n t t o t h e Z o n i n g M a p a n d
D e v e l o p m e n t C o d e t o m o d i f y t h e T r u c k e e Z o n i n g M a p a n d m o d i f y t h e S c e n i c
C o r r i d o r b o u n d a r i e s a s d e p i c t e d o n S h e e t 3 1 o f t h e Z o n i n g M a p s ;
" O r d i n a n c e N o . 2 0 0 3 - 0 8 a p p r o v i n g a D e v e l o p m e n t A g r e e m e n t b e t w e e n t h e T o w n
o f T r u c k e e a n d T r u c k e e L a n d , L L C .
E . I n s u p p o r t o f t h i s A g r e e m e n t , T o w n c o n c u r s i n a n d c e r t i f i e s t h e
F i n a l E n v i r o n m e n t a l I m p a c t R e p o r t ( F E I R ) a n d N o t i c e o f D e t e r m i n a t i o n f o r
t h e P r o j e c t a n d f i n d s t h a t n o s u b s e q u e n t o r s u p p l e m e n t a l e n v i r o n m e n t a l i m p a c t
r e p o r t , i n a d d i t i o n t o t h a t F E I R , i s n e c e s s a r y . I n r e a c h i n g t h i s d e t e r m i n a t i o n ,
t h e T o w n f i n d s t h a t t h e r e h a v e b e e n n o c h a n g e s p r o p o s e d t o t h e P r o j e c t b y t h e
a d o p t i o n o f t h i s A g r e e m e n t , w h i c h r e l a t e t o n e w s i g n i f i c a n t e n v i r o n m e n t a l
i m p a c t s n o t p r e v i o u s l y c o n s i d e r e d i n t h e F E I R .
F . T o w n a n d L a n d o w n e r h a v e t a k e n a l l a c t i o n s m a n d a t e d b y a n d
f u l f i l l e d a l l r e q u i r e m e n t s s e t f o r t h i n C h a p t e r 1 8 . 1 5 0 o f T i t l e 1 8 ( D e v e l o p m e n t
C o d e ) o f t h e M u n i c i p a l C o d e .
G . I n r e c o g n i t i o n o f t h e n e e d f o r a d d i t i o n a l a f f o r d a b l e h o u s i n g i n
t h e T o w n o f T r u c k e e , T o w n h a s r e q u e s t e d , a n d L a n d o w n e r h a s a g r e e d t o
p r o v i d e , a d d i t i o n a l a f f o r d a b l e h o u s i n g u n i t s t h r o u g h t h e T o w n ' s d e n s i t y b o n u s
p r o v i s i o n s i n t h e T o w n ' s D e v e l o p m e n t C o d e .
H . H a v i n g d u l y c o n s i d e r e d t h i s A g r e e m e n t a n d h a v i n g h e l d t h e
r e q u i s i t e n o t i c e d p u b l i c h e a r i n g s , T o w n f i n d s a n d d e c l a r e s t h a t t h e p r o v i s i o n s
o f t h i s A g r e e m e n t a r e c o n s i s t e n t w i t h t h e m a p s a n d t e x t o f t h e T o w n ' s G e n e r a l
P l a n a n d t h e c o n d i t i o n s o f a p p r o v a l o n t h e P r o j e c t .
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THEREFORE, the parties hereto agree as follows:
ARTICLE 1
GENERAL PROVISIONS
1.1 The Project. The Project, which is the subject of this Agreement
contemplates the development of the Subject Property as set forth in the
Specific Plan adopted by Resolution No. 2003-56, including without limitation
the following components:
Tentative Maps and Use Permit
Permitted Land Uses and Development Standards
Design Standards
Conditions of Approval
Trails Plan
The layout, site design, design standards and other components of the Project
shall be in the form generally depicted in the Specific Plan approved by
Resolution No. 2003-56. It is understood the Project may be developed in
phases, and Landowner wishes to secure assurances regarding the existing land
use regulations to be applied and the approvals to be granted to the Project
through entry into this Development Agreement, adopted by Ordinance No.
2003-08 . Zoning area maps are adopted by Ordinance No. 2003-07.
All of the above noted approvals are incorporated by reference herein as is
fully set forth and are on file in the Office of the Town Clerk for purposes of
reference. Failure to comply with the above approvals shall constitute a
violation of this Agreement.
The Town Council finds that the Project is consistent with the Town General Plan
and the Gray's Crossing Specific Plan. The Town Council further finds that any
tentative map processed to allow subdivision of the Project will comply with the
provisions of Government Code Section 66437.7 or any successor section thereto .
1.2 Phasing Plan. The Project shall be subject to the following Project
phasing requirements and time lines:
1. Within the first five (5) years of the Project the following
development will be substantially completed to the satisfaction of the Town in
the reasonable exercise of its discretion. If Phase I as set forth below is not
completed, other than for reasons beyond the reasonable control of Landowner,
this Agreement shall terminate:
a. 44 Cottages, which includes
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i. 29 affordable cottages and (10 deed restricted units).
b . 36 Attached Housing Units.
1. 13 Units at Median Income target group
11 . 12 Units at Moderate Income target group
111. 11 Units at Market Rate
c. 92 Rental Units
1. 50 Very Low Income target group
ii. 42 Low and Median Income target group
d. 40 Lodging Units .
e. 50% of village center completed (23,950 square feet)
f. 7 Studio Live/Work Lofts
g. 101 Single Family Lots Recorded
h . Trail Segment Numbers completed and open for public access:
1. Segment 1
11. Segment 2
111. Segment 4
IV. Segment 5
v. Segment 6
v1. Segment 7
vii. Segment 8
1. Off-Site Trail Connection to the Downtown
1. Either construct and open for the public
11. Or pay a construction and endowment fee approved by
the Town Engineer and Town Planner for the
construction of the trail.
J. Golf course or the recreation facility
2 . Within the first ten (10) years of the Project the following
development will be substantially completed to the satisfaction of the Town in
the reasonable exercise of its discretion. If Phase 2 as set forth below is not
completed, other than for reasons beyond the reasonable control of Landowner,
this Agreement shall terminate:
a. 23 Cottages (4 deed restricted units).
1. 10 Affordable
b . 45 Attached Housing Units.
1. 15 Units at Median Income target group
11. 16 Units at Moderate Income target group
111. 14 Units at Market Rate
c . All120 allowed lodging units completed.
d. 75% of village center completed (35,925 square feet)
e. 7 Studio Live/Work Lofts
f. 96 Single Family Lots Recorded
g. Golf course or the recreation facility
3. Within the first fifteen (15) years of the Project the following
development will be substantially completed to the satisfaction of the Town in
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the reasonable exercise of its discretion. If Phase 3 as set forth below is not
completed, other than for reasons beyond the reasonable control of Landowner ,
this Agreement shall terminate:
a. 22 Cottages.
1. 9 Affordable
b. 34 Attached Housing Units .
1. 9 Units at Median Income target group
11. 9 Units at Moderate Income target group
111 . 16 Units at Market Rate
d. 7 Live/Work Lofts
e. 211 Single Family Lots Recorded
f. Trail Segment Numbers completed and open for public access:
i. Segment 3
g. Off-site Trail Connection to Prosser Reservoir
1. Either construct and open for the public
11 . Or pay a construction and endowment fee approved by
the Town Engineer and Town Planner for the
construction of the trail.
h. Community Center per the Specific Plan or a Performing Arts
Center subject to the provisions set forth in Section 3.10 of this
Agreement.
For the purposes of this section, completion of a single-family lot shall refer to
the recordation of a fmal map creating the lot. Completion of a residential,
fractional, attached, cottage or rental unit shall refer to issuance of a temporary
or final certificate of occupancy. Affordable housing units constructed before
they are required under the Phasing Plan entitles Landowner to a credit against
other required affordable housing units provided the total amount of affordable
housing units is not reduced at Project buildout.
Phasing of the Project shall be implemented by the approval of multiple final
maps, or approval of one or more additional tentative maps and multiple final
maps, or such other combinations of approval procedures as are necessary to
implement the terms of this Agreement. Initial division of land may be
accomplished by p arcel map or tentative maps consistent with the approved
Specific Plan.
The Town has an interest in increasing the number of lodging units in the
lodge/hotel but acknowledges that it does not have "freeway orientation"
under the General Plan. This Agreement'requires the development of 120 units
by the end of Phase II. At the completion of Phase II Landowner (or its
successors in interest) and Town agree to negotiate in good faith to seek
alternatives and/or incentives, which would facilitate the maximum expansion
of the lodging property, up to 300 units if it is economically feasible.
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Landowner may, following the approvals for the lodging units as specified in
the Specific Plan, convert all or a portion of these units to interval ownership .
Town appro v al of any such conve rsion shall be ministerial , so long as the
following standards are met:
1. The interval ownership use will function in the same fashion as a high
quality conventional hotel , including but not limited to a front desk, concierge
service, a lobby, and a sundries store.
2 . At least sixty (60) percent of the rooms shall be available for transient
rental on a monthly basis and be charged the then applicable transient
occupancy tax on such occupancies .
3. Sufficient lodging units for transient rental use must be available at all
times to accommodate meetings , conventions , conferences , and destination
visitors. Landowner shall actively market the property for the uses outlined
above.
1.3 Other Definitions . As used in this Agreement, the following terms,
phrases and words shall have the meanings and be interpreted as set forth in
this Section.
1.3.1 Adopting Ordinance means Ordinance No . 2003-08 entitled:
"An Ordinance of the Town of Truckee Approving a Development Agreement
between the Town of Truckee and Truckee Land, LLC ."
1.3.2 Agreement or Development Agreement as used herein refers
to this Development Agreement.
1.3.3 Assumption Agreement as used herein means an agreement
approved by the Town, which binds any successor in interest to Landowner to
fulfill all o [Landowner obligations under the 1 and use entitlements and this
Agreement.
1.3.4 CEQA means the California Environmental Quality Act,
§§21000, et seq ., of the Pubic Resources Code of the State of California.
1.3.5 Certificate of Occupancy means either a certificate issued after
inspections by the Town authorizing a person or persons in possession of
property to use a specified building, or Town approval of the final inspection
of an improvement plan, grading plan, or other pIan authorizing a person to
construct certain improves if a formal certificate is not issued.
1.3.6 Chief Building Official means the Chief Building Official of
the Town of Truckee, or his/her designee.
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1.3. 7 Development Parcel means the parcels within the boundaries
of the Specific Plan.
1.3.8 Development Standards means the Existing Land Use
Regulations and the regulations, standards, and Conditions of Approval in the
Specific Plan ..
1.3.9 Director or Community Development Director means the
Community Development Director of the Town of Truckee.
1.3.10 Effective Date means the effective date of the Adopting
Ordinances and Resolutions, March 20, 2004.
1.3.11 Existing Land Use Regulations mean the ordinances,
resolutions, regulations and General Plan adopted by the Town in effect on the
Effective Date including the Adopting Ordinances and Resolutions that govern
the permitted uses of land, the density and intensity of use and the timing of
development.
1.3.12 General Plan means the General Plan of the Town, as it exists
on the Effective Date, including the text and maps, as amended in connection
with the Project.
1.3.13 Landowner shall mean Truckee Land LLC, or any successor(s)
in interest.
1.3.14 Project means the anticipated development of the Subject
Property as set forth in Section 1.1 and as provided for in the provisions of this
Agreement, including all incorporated exhibits.
1.3.15 Project Developer shall mean Truckee Land LLC, or any
successor( s) in interest.
1.3.16 Project Standards mean the Development Standards as defined
above and herein.
1.3.17 Regulations, Standards, and Conditions of Approval mean
those certain regulations, standards, and Conditions of Approval of the Project
incorporated by reference herein.
1.3.18 Subject Property means the property described in Exhibit "A",
or the remaining portions thereof after releases from the provisions of this
Agreement have been executed as authorized by this Agreement.
1.3.19 Town means the Town of Truckee, or its designee.
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1.3.20 Town Council means the duly elected legislative body
governing the Town, or its designee.
1.3.21 Town Planner means the Town Planner, or his /her designee.
1.3.22 Truckee Housing Affordability Grid means the Housing
Affordability Grid for Median income adopted by the Town of Truckee .
1.4 Exhibits. The following are attached as exhibits to this Agreement.
Exhibit "A" -Legal Description of Subject Property
Exhibit "B"-Form Estoppel Certificate
Exhibit "C" -Affordable Housing Requirement
1.5 Term of Agreement and Effective Date. This Agreement shall
commence upon the effective date of the Adopting Ordinance approving this
Agreement and, so long as Landowner is in compliance with its provisions
(specifically but not limited to those involving project phasing as set forth in
Section 1.2), it shall continue in full force and effect for fifteen (15) years from
the Effective Date unless extended or terminated as provided herein.
This Agreement, upon mutual consent of both parties or as otherwise set forth
herein, may be extended pursuant to the applicable procedures provided by law
for an additional five (5) years for a total of twenty (20) years.
1.6 Conflicting Provisions. In the event of any conflict between the
provisions of this Agreement, including the Development Standards , and the
Existing Land Use Regulations , the terms of this Agreement shall control.
1.7 Vested Rights. It is agreed that the development rights, obligations,
terms and conditions specified in this Agreement are fully vested in the
Landowner and may not be changed, modified, invalidated or otherwise
limited by the Town, whether by administrative action, legislative action, or, to
the extent allowed by law , vote of the electorate through initiative, referenda
and/or other voting process, except as may be expressly permitted by and in
accordance with the terms and conditions of this Agreement , or as are
expressly consented to by Landowner or any approved successor in interest.
To the maximum extent permitted by law , Town shall take any and all actions
as may be necessary or appropriate to ensure that the vested rights allowed by
this Agreement can be enjoyed by Landowner. Town shall not support, adopt,
or enact any ordinance, resolution, land use regulation or other measure, or
take or fail to take any other action, which would violate the provisions or
intent of any Project Approvals or Town Approvals necessary or appropriate to
implement this Agreement. Should such vested rights not be exercised during
the terms of this Agreement by the Landowner by undertaking and completing
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the contemplated Development Projects, then such vested rights shall not
survive beyond the term of this Agreement and any applicable extensions.
Should, in the future within the term of this Agreement, any or all of the
Project be destroyed by fire, earthquake, or other similar causes , then
Landowner, or its successors, shall have a continuing vested right to rebuild or
repair such damaged or destroyed property within the term of this Agreement
to continue the vested uses granted hereunder.
1.8 Assignment and Assumption. Subject to Town Council approval,
which shall not be unreasonably withheld, Landowner shall have the right to
sell , assign, or transfer this Agreement including with all the rights , title and
interests therein to any person or entity who at any time during the term of the
Agreement succeeds to any interest in any portion of the Subject Property,
such rights, title and interest being appurtenant to the Subject Property and all
part and portions thereof. Provided , however, that Town Council approval
shall not be required for sales, assignments or transfers of this Agreement with
all the rights, title and interests therein to the direct affiliates of Landowner -
Gray's Crossing, LLC and/or Gray's Station, LLC and/or Tahoe Mountain
Club, LLC or a related entity or subsidiary of East West Partners or Crescent
Real Estate Equities Partnership. An assignment or transfer to a reputable ,
experienced hotel operator for the 1 odging facility, to a reputable, employee
housing entity as to the employee housing facility, and to a reputable,
experienced commercial developer as to the Gray's Crossing village center
shall not require Town consent --provided such assignees execute an
Assumption Agreement and meet the minimum criteria for ownership and
operation of each such component of the Project as reasonably established by
the Town Council. The conditions and covenants set forth in this Agreement
and incorporated herein through exhibits shall run with the land and the
benefits and burdens shall bind and inure to the benefit of the parties and their
successors . Notwithstanding any such assignment, Landowner shall be entitled
to all of the rights, title and interest hereunder with respect to the property
retained by Landowner. Landowner or its related entities shall remain
responsible for operation of the golf course.
1.9 Covenants Running With the Land. Each and every purchaser,
assignee or transferee of an interest in the Subject Property, or any portion
thereof, shall be obligated and bound by the terms and conditions of this
Agreement, and shall be the beneficiary thereof and a party thereto, but only
with respect to such portion thereof, sold, assigned or transferred to it. Any
such purchaser, assignee or transferee shall observe and fully perform all of the
duties and obligations of the Landowner contained in this Agreement, as such
duties and obligations pertain to the portion of the Subject Property sold,
assigned, or transferred to it.
1.10 Amendment to Agreement. This Agreement, as it pertains to any
portion of the Subject Property, may be amended by mutual consent of the
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Town and Landowner, or, if the portion has been purchased, assigned or
transferred, by mutual consent of Town and such purchaser, assignee or
transferee, in writing, in accordance with the provisions of Government Code
§65868, provided that:
1.10.1 The Town Council must approve all amendments to this
Agreement, subject to a noticed public hearing as required by law, except
amendments to this Agreement described in Sections 1.11.2 and 1.11.3.
1.1 0.2 The Planning Commission shall have the authority to approve
major changes to the Specific Plan in accordance with Section 18.84.070 of the
Development Code.
1.1 0.3 The Cornnmnity Development Director shall have the authority
to approve minor changes to the Specific Plan in accordance with Section
18.84.070 of the Development Code. Additionally, the Community
Development Director in his or her discretion may authorize minor
modifications to the phasing plan and affordable housing requirements in the
Specific Plan and this Agreement, so long as the resulting change is in
substantial compliance with and accomplishes the purposes of the Town
Housing Policies, the Specific Plan, and this Agreement. Any amendment shall
affect only the provisions of this Agreement and those portions of the Project
directly affected by the amendment. Amendments must be reported to the
Planning Commission at a regular scheduled meeting within thirty (30) days of
the amendment.
1.10.4 In the event of a subsequent discovery by one or both of the parties
of a health and safety issue which creates a compelling public necessity to amend
this agreement as required by Section 18.150.050 A of the Town Development
Code, Town and Landowner shall negotiate an appropriate amendment or
amendments to this Agreement to address any such public necessity."
1.11 Notices. All notices, requests, demands, and other
communication given or required to be given hereunder shall be in writing and
sent by pre-paid first-class United States Mail, or by nationally recognized
overnight mail service such as FedEx, duly addressed to the parties as follows:
Ifto Town: Town Manager and
Town Community Development Director
Town of Truckee
Town Hall
10183 Truckee Airport Road
Truckee, CA 96161
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And to:
If to Landowner:
And to:
Dennis Crabb , Truckee Town Attorney
Rollston, Henderson, Rasmussen
& Crabb
591 Tahoe Keys Blvd., Ste. D8
South Lake Tahoe , CA 96150
Truckee Land LLC
c/o East West Partners
ATTN: Roger Lessman or
Rick McConn
10164 Donner Pass Road , Ste . 3
Truckee, CA 96161
James L. Porter Jr.
Porter · Simon
40200 Truckee Airport Road
Truckee, CA 96161
1.12 Recordation of Agreement. The Town Clerk shall, within ten ( 10)
days after the execution of this Agreement, record this Agreement in the
official records ofNevada County.
1.13 Applicable Law. This Agreement shall be construed and enforced in
accordance with the laws of the State of California.
1.14 Third Party Legal Challenge. In the event any legal action or special
proceeding is commenced by any person or entity, other than a party to this
Agreement or a subsequent landowner not party to this Agreement as defined
herein, challenging this Agreement or any provision herein, including, but not
limited to, challenges to any subsequent Town Approvals granted pursuant to
this Agreement and/or compliance of this Agreement or any subsequent Town
Approvals with the California Environmental Quality Act and/or the Town
General Plan, the parties agree to cooperate with each other in good faith to
defend said legal action or special proceeding. Landowner shall be liable for
its own legal expenses and costs and shall defend, indemnify, and hold
harmless the Town and its agents, officers and employees from all costs of any
claim, action, or proceeding against the Town to attack, set aside, void, or
annul the approval of the Town, including payment of the Town's reasonable
attorneys' and expert witnesses' fees incurred in such defense, if any. The
Effective Date and/or any terms, schedules, phases and/or any other Project
related time periods set forth in this Agreement, including subsections 1.2 and
1.6 shall, in the event of such litigation, also be automatically extended for that
period of time the final implementation of this Agreement is delayed, or is
effectively delayed, due to the pendency of that litigation and/or need to defend
the litigation before Project financing can be committed.
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1.15 Legal Proceedings and Venue. Venue and jurisdiction for all
proceedings pertaining to this Agreement shall be in the Superior Court for the
County ofNevada.
1.16 Force Majeure. In addition to any applicable specific provisions of
this Agreement, delay in performance or non-performance by Landowner shall
not be deemed to be a default under this Agreement where such delays or
nonperformance are due to events or circumstances beyond Landowner's
reasonable control including, but not limited to, the following: a war waged as
a result of a formal declaration of war by the Congress of the United States, a
war or military action in response to acts of terrorism, acts of terrorism,
insurrection, strikes, walk-outs , riots, floods, earthquakes, fires, casualties, acts
of God, governmental restriction imposed or mandated by governmental
entities other than the Town, enactment of conflicting state or federal laws or
regulations, new or supplementary environmental regulation enacted by the
state or federal government , litigation, including third-party challenges,
shortages of materials or supplies and/or market conditions adverse to
Landowner and/or the Project. An extension of time required due to the
occurrence of any oft he events set forth in this Section shall be granted in
writing by the Town for the period of the enforced delay, or longer, as may be
mutually agreed upon, but in no case shall the cumulative extensions add more
than five (5) years to the fifteen year term of this Agreement or three (3) years
to any single phase.
1.17 Operating Memorandum. This Agreement may be amended only in
accordance with the provisions of Government Code Section 65868. Provided,
however Town and Landowner may implement or clarify provisions of this
Agreement through the execution of an "Operating Memorandum" approved by
the Town and Landowner, from time to time during the Term.
Any such Operating Memoranda shall be automatically deemed incorporated as
an Exhibit to this Agreement. In the event a provision in any Operating
Memorandum conflicts with this Agreement, the Agreement shall control. The
Community Development Director is authorized to approve any Operating
Memorandum or amendment thereto on behalf of the Town, but may request
Town Council review and approval of any proposed Memorandum, if he or she
deems it necessary or desirable . Amendments to the Operating Memorandum
must be reported to the Planning Commission at a regular scheduled meeting
within thirty (30) days of the amendment.
ARTICLE2
STANDARDSOFPROJECTDEVELOPMENT
2.1 Permitted Uses and Development Standards. The permitted uses
and the density and intensity of uses of the Subject Property shall be those set
15
forth in the Specific Plan and Conditions of Approval. The maximum height
and size of any proposed buildings; provisions for reservation and dedication
of land; the construction, installation and extension of public improvements;
development guidelines and standards; the implementation program for
processing of subsequent entitlements ; and the other regulations, standards,
and conditions of development for the Subject Property shall be the Existing
Land Use Regulations except as modified and added onto by the Specific Plan
and as otherwise agreed to herein. If conflicts occur between the Existing
Land Use Regulations and the requirements of the Specific Plan, the
requirements of the Specific Plan shall control , and if conflicts occur between
the Specific Plan and the requirements of this Agreement, the requirements of
this Agreement shall control.
2.2 Changes to Existing Land Use Regulations. Only the following
changes to the Existing Land Use Regulations adopted in the future shall apply
to the development of the Project and/or the Subject Property:
2.2.1 Except as otherwise expressly provided in this Agreement only
Town land use regulations, ordinances, policies, programs, or resolutions that
are not in conflict with the terms and conditions established by this Agreement
and which do not burden the development allowed by this Agreement may be
adopted after the Effective Date.
2.2.2 Town land use regulations, ordinances, policies, programs, or
resolutions adopted after the Effective Date which may be in conflict with the
Existing Land Use Regulations, but the application of which to the
development of the Project or the Subject Property has been consented to in
writing by the Landowner either through this Agreement or by a later separate
document.
2.3 Phasing of Project. The Project shall be developed in phases, as more
fully set forth in Section 1.2 of this Agreement. Subject to compliance with
Section 1.2, the parties agree that Landowner shall be able to develop in
accordance with Landowner's own time schedule as such schedule must exist
from time to time in Landowner's sole discretion and subjective business
judgment. Furthermore, in the event of an Initiative or other land use
restriction or growth control mechanism approved by voters in the Town of
Truckee that purports to limit, control or allocate building rights or building
permits, Landowner shall receive priority for any allocation of building rights
and permits from year to year until Landowner has been allocated all of the
permits authorized for the Project. This section is written and included
specifically to avoid the result in Pardee Construction Co. v. City of
Camarillo, 37 Cal.3d 465 (1984).
Nothing in this Agreement shall exempt Landowner from completing work as
required by a subdivision agreement, road improvement agreement or similar
16
agreement , permit , or license consistent with and m accordance with the
provisions of this Agreement.
2.4 Obligations and Rights of Mortgage Lenders. The holder of any
mortgage , deed of trust or other security arrangement with respect to the
Subject Property, or any portion thereof, shall not be obligated under this
Agreement to construct or complete improvements or to guarantee such
construction or completion, but shall otherwise be bound by all of the terms
and conditions of this Agreement which pertain to the Subject Property or such
portion thereof in which it holds an interest. Any such holder who comes into
possession of the Subject Property, or any portion thereof, pursuant to a
foreclosure of a mortgage or a deed of trust, or deed in lieu of such foreclosure ,
shall take the Subject Property, or such portion thereof, subject to this
Agreement and any pro rata claims for payments or charges against the Subject
Property, or such portion thereof, which accrue prior and subsequent to the
time such holder comes into possession. Nothing in this Agreement shall be
deemed or construed to permit or authorize any such holder to devote the
Subject Property, or any portion thereof, to any uses, or to construct any
improvements thereon , other than those uses and improvements provided for or
authorized by this Agreement, subject to all of the terms and conditions of this
Agreement.
2.5 Execution of Agreement. Landowner shall execute this Agreement
within thirty (30) days after the Effective Date of the approving ordinance or
this Agreement shall be null and void and the approving ordinance shall b e
deemed repealed by operation of law.
2.6 Affordable Housing Requirement. Under the Town General Plan ,
Landowner is required to provide at least 100 affordable housing units;
however, the Town has requested additional affordable housing units ,
including 28 units of employee housing for the Old Greenwood project, to be
provided through the Town's density bonus provisions in Chapter 18.32
(Affordable Housing) of the Town Development Code. The affordable
housing requirements for the Project shall be as specified in the Project
Conditions of Approval , the approved Specific Plan and Exhibit "C" "" to this
Agreement, attached and made a part hereof by reference. Landowner and
Town, as part of the annual review required by Section 4.2 of this Agreement,
shall determine the effectiveness of this section and shall make any necessary
adjustments by entry into an Operating Memorandum to meet the objectives
set forth in this section.
All affordability target groups shall be consistent with the Town of Truckee
Housing Affordability Grid by Household Size for Very Low, Low, Median,
and Moderate income levels . In order to qualify for the purchase of any
affordable units provided by Landowner under this Agreement the individual
or family shall be a resident of the eastern slope portion of Nevada or Placer
17
County and shall be employed by or own a business within that area. For
purposes of this Agreement the area is bounded by Soda Springs , the Sierra
County line, Hirschdale, Brockway Summit, and Cabin Creek Road.
2. 7 Streets . Offers of dedication for streets and acceptance of such offers by
Town shall be in accordance with those Town requirements and Town street
acceptance formulas in effect on the Effective Date . Notwithstanding the
foregoing , acceptance of offers of dedication for streets , including
maintenance , shall be at the sole discretion of the Town Council regardless of
Town policies regarding acceptance of streets. Landowner reserves the right to
improve or to pay Town to improve dedicated streets to higher standards than
those required or maintained by Town.
ARTICLE 3
COMMUNITY BENEFITS OBTAINED FROM TOWN APPROVAL OF
DEVELOPMENT AGREEMENT
3.1 Reimbursement to Tahoe Truckee Unified School District. As a
benefit to the community, Landowner has entered into a written agreement
with the Tahoe Truckee Unified School District for reimbursement of monies
paid by the District to Landowner for the acquisition of property upon which
the Alder Creek Middle School is being constructed, which agreement
Landowner agrees to honor pursuant to terms and conditions contained therein .
3.2 Sales and Use Tax Allocations/Locals' Opportunities. Landowner
shall require that its general contractors and major subcontractors exercise their
option to obtain a Board of Equalization sub-permit for the job site and allocate
all eligible use tax payment to the Town. Prior to beginning the project and
absent circumstances beyond Landowner's reasonable control , Landowner
shall ensure that its general contractors and major subcontractors provide
Town with either a copy of the sub-permit or a statement that use tax does not
apply to their portion oft he job. The Town will use best efforts to provide
Landowner and/or Landowners' contractors and subcontractors with the
information and materials necessary to exercise the above use tax option.
3.2.1 Landowner will use the Direct Payment Process established
under State Revenue and Taxation Code §7051.3 and, absent circumstances
beyond Landowner's reasonable control , Landowner shall ensure that the local
share of Landowner's use tax payments under the direct payment permit
process is allocated to the Town. Landowner will provide Town with either a
copy of the direct payment permit or a statement certifying ineligibility to
qualify for the permit. Landowner will inform commercial tenants about the
direct payment permit process and encourage their participation if qualified.
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3.3 Local Economic Opportunity. It is in the best interest of both the
Landowner and the Town to create economic and job opportunities for local
residents through the construction and operation of the Projects. Employment
of local residents will not require the creation of new housing , will reduce the
turn over of employees, and maximize the number of dollars retained and
recirculated within the Town . In order to meet the objectives of this section in
a manner consistent with state and federal laws including discrimination , right
to travel , and interstate commerce, Landowner agrees, to its use best efforts to
take the following steps to encourage economic and job opportunities for local
residents:
3.3.1 Bid Process. Landowner will instruct its general contractors
and major subcontractors to solicit local contractors and subcontractors to
participate in the bid process . For example, to further the objectives of this
Section as stated above, Landowner must instruct its general contractors and
major subcontractors to coordinate with any local or regional contractors
association to solicit bids from qualified local contractors and subcontractors
consistent with this subsection. Landowner and Town, as part of the annual
review required by this Agreement , shall determine the effectiveness of this
section and shall make any necessary adjustments by entry into an Operating
Memorandum to meet the objectives set forth in this section .
3.3.2 Local Labor. Landowner will instruct its general contractors
and major subcontractors to use their best efforts to identify, hire and retain
locall abor. Locall abor shall include, but is not limited to, in the fallo wing
order of preference, to the maximum extent legally permissible, persons living
in Truckee, the greater Martis Valley area and the eastern portions of Nevada,
Placer and Sierra counties. For example, Landowner must instruct its general
contractors and major subcontractors to coordinate with any local or regional
contractors association to utilize qualified local labor consistent with this
subsection. Landowner and Town, as part of the annual review required this
Agreement , shall determine the effectiveness o f this section's objectives and
shall make any necessary adjustments by entry into an Operating
Memorandum to meet the objectives set forth in this section.
3.3.3 Local Employment Opportunity. Landowner will use best
efforts to inform local contractors , laborers and residents of potential job
opportunities with the Project.
3.4 Buy Local Requirement. In an effort to benefit the merchants within
the Town of Truckee, Landowner will use best efforts to purchase building
materials used within the Project locally, provided, however (a) such materials
are available in the Truckee area and (b) the cost of the local materials is no
. more than 5% over the cost of purchasing outside of the Town. Implementation
and compliance with this requirement will be achieved through the annual
review process described below in Paragraph 4.2.
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3.5 Local Recreational Benefits. Local residents shall receive the
following recreational benefits . The scope and manner of implementation of
each specific benefit described below shall be accomplished by Operating
Memorandum .
3.5.1 Trail segments identified for public use on the Trails Plan in the
Conditions of Approval will be constructed and maintained at Landowner
expense and shall be available for public use year-round .
3.5.2 Subject to weather and reasonable rules concerning access
created and enforced by Landowner, winter use of the golf cart paths by the
public and residents of the Project will be available for non-motorized uses,
including cross-country skiers, snowshoers, and other uses that are not
detrimental to the golf course or the Project. The public and residents of the
Project may use the golf cart paths during summer months for non-motorized
uses during non-golf hours, subject to weather and reasonable rules of use,
provided that any use is not detrimental to the golf course or the Project. If
alternative and equivalent access is provided by Landowner, some cart paths
may be closed to the public and project residents by Landowner. This
restriction shall not limit Landowners use of the golf cart paths.
3.5.3 The Gray's Crossing Golf Course shall be made permanently
available for use by the general public, local residents, school golf teams, and
lodging guests one day per week on a fee basis , holidays excluded. The
specific day shall be determined from time to time by Landowner. Landowner
shall offer and actively market golf packages to lodging guests during, at a
minimum, the day of public play. This provision shall be specifically
included in any approved Assumption Agreement.
3.5.4 Residents of the Project, including the affordable and employee
housing units, may for a fee have access and the right to use the Project Fitness
Facility unless the rental complex has access to a fitness facility . Additionally,
if a fitness element is not available as part of the Project lodging facility ,
lodging guests have the opportunity to use the Project Fitness Facility on a fee
basis .
3.5.5 Off-Site Trails. As part of the first phase of this Agreement,
Landowner agrees to construct and maintain a trail link from the existing
Pioneer Commerce Center trail to Euer Valley Road near downtown Truckee
as a part of the "Downtown Trail Link". Except as set forth in the maintenance
agreement, Landowner shall be indemnified by the Town for any and all
claims, losses and damages that arise as a result of public use of the off-site
Downtown Trail Link. If for whatever reason Town is not able to obtain
easement rights and accept the right-of-way, and if Landowner is unable to
construct the Downtown Trail Link, then a specific fee based on the Town
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Engineer's cost estimate of the cost of trail construction plus 25 % --shall be
paid by Landowner as an endowment/maintenance amount under conditions
acceptable to the Town Manager, to fund the future development of the
Downtown Trail Link by a local entity such as the Truckee Trails Foundation.
If a trail entity and funding mechanism is established Town-wide , this off-site
trail maintenance obligation shall terminate.
3.5 .6 As part of the third phase of this Agreement, Landowner agrees
to participate in its fair share of the construction costs as determined by the
Town Engineer of an off-site trail from the Project to Prosser Reservoir. If the
Prosser Reservoir segment of the trail is not constructed by the end of the third
phase of this Agreement, Landowner shall then pay a mitigation fee not to
exceed $200,000 plus inflationary construction cost increases from the date of
this Agreement as established by the Engineering News Record or any
successor publication thereto based upon the Town Engineers determination of
Landowners fair share of the cost of construction of the trail from the Project
to Prosser Reservoir plus 25%. The funds shall be paid by Landowner into an
endowment/maintenance account for the future development of the Prosser
Reservoir Trail by a local entity, such as the Truckee Trails Foundation. If the
Prosser Reservoir Trail is not constructed within five (5) years of said
payment, the money shall be refunded to Landowner unless the Town makes
Government Codes 6000 et seq . findings to support the delay and uses the
funds for trail development.
3 .6 Affordable Housing. In recogrutwn of Landowner's commitment to
provide additional affordable housing units as required by the Town, the Town
Council will consider in good faith entering a Joint Community Facilities
Agreement ("JCFA") with the Truckee Donner Public Utility District or other
public entity as authorized under Government Code section 53316.2, for
financing by a Mello-Roos Community Facilities District ("CFD"). Upon
approval and implementation of any such JCF A, as an additional benefit for
the community, Landowner will donate a sum equal to 1. 7% of the amount of
Town-related infrastructure financed through the JCF A to the Town to develop
a First Time Homebuyer Down Payment Assistance Program.
3 .6.1 To facilitate Landowners development of additional affordable
housing units , and in partial recognition of Landowner's commitment of
additional affordable housing units, some with 30-year deed restrictions, Town
agrees to consider in good faith sponsorship of "63-20 financing" for the
Project rental housing complex so long as there is no cost or liability to Town.
3.7 Transit Plan. Landowner is required by the conditions of approval to
operate and maintain shuttles serving owner, residents, lodging guests,
employees of the project and the public. Town and Landowner agree that there
will be impacts on the Town's public transit system as a result of the Project.
However, that impact is best addressed on a Town-Wide basis with each new
21
development contributing its fair share to offset such impacts . With regard to
its Project Landowner shall prepare and submit to the Town Manager for
approval a transit plan identifying methods , equipment and a funding source to
ensure the Project transit plan will be implemented and provide service to
Downtown, Ski Resorts, local attractions and a connection to other public and
private transit providers . Town Manager approval shall not be unreasonably
withheld. Landowner shall become and remain a member of the Truckee-
North Tahoe Transit Management Association for the duration of this
Agreement, so long as the Association exists . Landowner shall receive a credit
against Landowner 's fair share obligation for Landowner's Project transit
services available to the public.
Further, Landowner shall cooperate with Town and all other interested parties to
develop a Town-wide transit plan and shall pay Landowner's fair share of
offsetting the impacts of the project on the Town's transit system using an
equitable formula , which is applicable to all new development within the Town.
In the event that Landowner and Town cannot agree on the amount to be paid that
decision will be resolved by binding arbitration under California Code of Civil
Procedure Section 1280 et seq . or such other procedure upon which the parties
mutually agree.
3.8 Dedication of Real Property. Landowner shall make an irrevocable offer of
dedication of the parcels commonly known as APN Nos. 19-410-09 and 19-410-
22 (the Commercial Triangle and the 9.5-acre parcel adjacent to the middle
school) to the Town or its assignee who may accept title after the following
conditions have been met: (1) the parcels shall be available to the community for
a public or public-benefiting, non-commercial use not inconsistent or
incompatible with the Project as reasonably determined by Landowner, with the
use determined as part of a collaborative community process, and (2) this
commitment and offer expires five years from the Effective Date unless the
Truckee community determines the uses for the two sites within five years, and if
the uses include buildings, unless the buildings are substantially constructed
within seven years. Any subsequent change of use requires the consent of
Landowner.
This Section of the Agreement shall have no force or effect and Landowner shall
not be required to provide the benefits set forth in these Sections if (1) not more
than 100 days after the Town Council approves the Project, a petition for writ of
mandate or complaint is filed under CEQA, the State Planning and Zoning Law,
the Subdivision Map Act, or other State law, that requests the Court to issue an
order or writ requiring or directing the Town to rescind or overturn its approval of
any or all of the entitlements for the Project, or (2) a referendum petition with a
sufficient number of qualified signatures is submitted within the time required by
law regarding the Town Council's approval of any or all ofthe entitlements for
the Project.
22
3.9 Use of Village for Community Events. The Project as approved will
contain public space suitable and useable for commw1ity gatherings and
events . T hat space is generally depicted on a diagram in the Specific PIan.
Landowner will make the space available to Town four (4) times per year for
community events , subject to Landowners reasonable rules and regulations
regarding use of its property by members of the public.
Town , or its designee, shall provide Landowners with a IJ1inimum of sixty (60)
days notice of any proposed community event and shall coordinate production
oft he event with Landowner. T own or its designee shall, to the m aximwn
extent allowed by law, hold harmless, indemnify, and defend Landowner from
liability arising from public use of the space during and as a result of the event.
Town or its designee shall provide Landowner evidence of general liability
insurance for the event satisfactory in form and amount to Landowner in the
reasonable exercise of its discretion. Landowner and Town may agree upon
community events under these conditions in addition to the four per year
required by this Agreement.
3.10 Performing Arts Center. Landowner's entitlements include
authorization to construct a seven thousand two hundred (7,200) square foot
multi-use community building. Town believes it would be beneficial to the
Project and the Town to have that facility become a Performing Arts Center if
sufficient community support exists.
To facilitate that determination, Landowner agrees to make the multi-use
community building space in the Gray's Crossing Village available for a
Performing Arts Center or other agreed use as determined by the community and
Landowner. Landowner agrees to participate in the development of a conceptual
design for a community Performing Arts Center and further agrees to work with
the community towards development of a Center, including cooperation in any
capital campaign and hosting meetings of interested persons and experts in the
field. Unless extended by Landowner, this commitment expires four years from
the Effective Date unless construction funding is obtained and the capital for a
Center is raised in four years. This Section and Section 3.11 of this Agreement
shall have no force and effect and Landowner shall not be required to provide the
benefits set forth in these Sections if (1) not more than 100 days after the Town
Council approves the Project, a petition for writ of mandate or complaint is filed
under CEQA, the State Planning and Zoning Law, the Subdivision Map Act, or
other State law, that requests the Court to issue an order or writ requiring or
directing the Town to rescind or overturn its approval of any or all of the
entitlements of the Project, or (2) a referendwn petition with a sufficient nwnber
of qualified signatures is submitted within the time required by law regarding the
Town Council's approval of any or all of the entitlements of the Project and
approved by a sufficient nwnber of qualified voters.
23
3.11 Open Space Funding. As an additional benefit for the community and to
establish a mechanism to fund the acquisition of open space, Landowner agrees to
record a transfer fee covenant to apply to each market-rate residential lot /unit in
the Project which will require that on sale or transfer of a residential lot or unit a
transfer fee equal to one-quarter of one percent (0 .25%) of the consideration paid
on sale shall be paid to the Truckee Donner Land Trust (or to an existing non-
profit which will assign its ri ght to the proceeds to the Truckee Donner Land
Trust) for a period of fifteen years. The transfer fee covenant will contain
language similar to transfer fee covenants recorded on Landowner's other
projects. The covenant shall provide for the payment or assignment of this fee to
the Truckee Donner Land Trust for a period of fifteen years after the Effective
Date . Said fund shall be used for the acquisition and maintenance of open space
in the immediate Truckee area that benefits the citizens of Truckee. After a
period of 15 years, the 0.25 % on each sale shall inure to the benefit of the Tahoe
Mountain Resorts Foundation, which non-profit corporation will use and
administer those funds for the following purposes: to provide educational
opportunities with respect to such community activities as recreational programs,
performing arts programs , local libraries, civic and cultural programs , historical
preservation, and support of other initiatives to promote health and welfare of
citizens ofthe communities in and around the Town of Truckee and the Martis
Valley and surrounding communities, as well as support and protect open space,
recreational, scenic and historic lands in the Truckee/Donner region. This Section
3.11 offering shall be subject to and conditioned upon no lawsuit being filed and
no referendum being approved by the voters as described in Section 3 .10 of this
Agreement.
3.12 Substitute Community Benefits. In the event it is determined by the
parties that some or all of the community benefits to be provided under this
Agreement are economically impossible due to voter imposed growth controls,
this Agreement may be amended to substitute other feasible forms of
community benefit after a noticed public hearing called for the purpose of
considering any proposed substitutions .
ARTICLE4
ENTITLEMENT AND PERMIT PROCESSING, INSPECTIONS,
AND RELATED MATTERS
4.1 Town Approvals. This Agreement vests only zoning and Specific
Plan approvals. With regard to all other discretionary project approvals, the
Town agrees, subject to reasonable conditions and requirements equivalent to
those imposed on similar Town Approvals, to grant and implement the land
use approvals in the Specific Plan, as reasonably necessary or desirable to
accomplish the goals, objectives, policies, standards, and plans described in
24
this Agreement, and in the previously-approved land uses. Town Approvals
shall include any applications, permits and approvals required to complete the
infrastructure and improvements necessary to develop the Subject Property
(collectively, the "hnprovements"), in accordance with this Agreement subject
to the limitations set forth in this Agreement.
4.1.1 Best Interests. By approving the amendment to the Zoning Map, the
planned development, the use permit, the Tentative Map(s), the Specific Plan
the Lot Line Adjustment and this Agreement, Town has made a final policy
decision and finding that the Project components should be approved subject to
reasonable conditions and doing so is in the best interests of the public health,
safety and general welfare and, specifically, in the best interests of the Town of
Truckee. All subsequent Town Approvals shall be deemed to be methods to
implement those final policy decisions and Project Approvals and future
discretionary reviews shall be limited as set forth above so long as the
application for that approval is consistent with this Agreement.
4.1.2 FEIR Applies to Subsequent Town Approvals. The parties
agree that the FEIR for the Gray's Crossing Specific Plan, certified by the
Truckee Town Council on February 5, 2004 by Resolution No . 2003-56, is
intended to be used in connection with each of the Town Approvals needed
for the Project consistent with §21083 .3 of the Public Resources Code and
§ 15183 of the CEQA Guidelines which streamlines the review of the
Project and reduces the need to prepare repetitive environmental studies .
Consistent with the CEQA policies and requirements applicable to the
FEIR, the FEIR will be used to the fullest extent allowed by law in
connection with the processing of any Town Approval in conformance with
the CEQA mandate that, with limited exceptions , projects which are
consistent with the development density established by a community plan,
for which an FEIR was prepared, shall not require additional environmental
review. Additional environmental review may only be required, by Town,
in strict conformity with §21083.3 of the Public Resources Code and
§ 15183 of the CEQA Guidelines .
4.1.3 Agreement is between Landowner and Town of Truckee.
This Agreement is between Landowner and the Town of Truckee. Unless
otherwise provided by law or provisions of this Agreement, this Agreement
does not apply to other special districts or governmental agencies not party
to this Agreement and whose permit or approval authority is not exercised
through, by or on behalf of the Town of Truckee. This Agreement has no
effect on the rules, regulations and fees of other special districts or
governmental agencies that may have independent permit or approval
authority over the project and whose permit or approval authority is not
exercised through, by, or on behalf of the Town of Truckee .
25
4.2 Duty to Grant and Implement. Town's obligation to grant and
implement the Town Approvals set forth above shall not infringe upon the
Town's right to withhold Approvals for a failure by the Landowner to conform
to the requirements of this Agreement.
4.3 Timely Processing. Subject to compliance with the prov1s10ns of
applicable law , the aforementioned Town Approvals and any environmental
review required thereon shall be granted and approved by the Town on a
timely basis ; provided that applications for such approvals are submitted to the
Town during the tem1 of this Agreement; and provided further that there is no
uncured default under the terms and conditions of this Agreement with respect
to the portion of the Subject Property for which such approval is sought. Town
may hire and/or retain, at Landowner expense, appropriate personnel and
consultants if required to process all Town Approvals as set forth below.
4.3.1 Building Permits. The Town shall process and check all
building plans in good faith and in a timely marmer in accordance with Town
procedures and policies in effect at the time of submittal of the building permit
and plans. Upon request of the Landowner, the Town shall inform Landowner
of the necessary submission requirements for each application for a building
permit or other entitlement for use in advance.
4.3.2 Inspections . The Town shall perform all required inspections
in good faith and in a timely marmer in accordance with Town procedures and
policies in effect at the time of inspection request.
4.4 Cooperation. The Town agrees to cooperate with Landowner in timely
securing all permits which may be required by the Town or any other
governmental agency having jurisdiction over the Project.
4.5 Life of Subdivision Maps, Development Approvals, and Permits.
The term of any subdivision map, tentative map , vesting tentative map, final map
or any other map , pursuant to Government Code Section 66452.6, permit (except
building permits and grading permits), rezoning or other land use entitlements
approved as a Project Approval or subsequent Town Approval shall automatically
be extended for a minimum term equal to the Term of this Agreement consistent
with the terms this Agreement. The term of this Agreement and of any
subdivision map, tentative map, vesting tentative map , final map or any other map
or any other Town Approvals shall not include any periods of time during which
the Project is delayed by unforeseen circumstances beyond the control of
Landowner.
4.6 Applicable Fees . Notwithstanding the Existing Land Use Regulations ,
mitigation fees and fee rates and all other fees and fee rates and assessments
charged by the Town on the Project at the time of building or other ministerial
26
permits are issued shall be those fees and fee rates in effect at time of permit
issuance, provided such fees and fee rates are not adopted and applicable solely
to the Subject Property except where such fees and rates are necessary to off-
set the actual and reasonable cost to the Town of processing the Town
approvals. All development fees imposed on the Project by Town under the
authority of Government Code Section 66000 et seq. or any successor section
thereto shall comply with the provision of Government Code Section 66006 or
any successor section thereto .
ARTICLES
DEFAULT, TERMINATION, ENFORCEMENT, & OTHER
MISCELLANEOUS PROVISIONS
5.1 General Provisions. Subject to extensions of time by mutual consent
in writing, failure or delay by any party to perform any term or provision of
this Agreement, shall constitute a default; provided, however, that so long as
Landowner has obtained an Assumption Agreement, Landowner shall not be in
default for the failure of some other person or entity to perform any term or
provision of this Agreement, and no party to this Agreement shall be in default
as the result of the failure of a previously-released party to perform any term or
provision of this Agreement.
In the event of alleged default or breach of any terms or conditions of this
Agreement, the party alleging such default or breach shall give the other party
not less than sixty (60) days notice in writing specifying the nature of the
alleged default and the manner in which said default may be cured. During
any such sixty (60) day period, the party charged shall not be considered in
default for purposes of termination or institution of legal proceedings .
After notice and expiration of the sixty (60) day period, if such default has not
been cured or is not being diligently cured in the manner set forth in the notice,
the other party may give notice of its intent to terminate this Agreement
pursuant to California Government Code § 65 868 and any regulations of the
Town implementing said Government Code section. Following notice of
intent to terminate, or prior to instituting legal proceedings, the matter shall be
scheduled for consideration and review in the manner set forth in Government
Code §§65865 , 65867, and 65868 and Town regulations implementing said
sections by the Town within thirty (30) calendar days.
Following consideration oft he evidence presented in said review before the
Town and an additional thirty (30) day period to cure, either party alleging the
default by the other party may institute legal proceedings or may give written
notice of termination of this Agreement to the other party; provided, however,
a Landowner may only gives uch notice with respect to such portion o fthe
Subject Property in which such defaulting Landowner then owns an interest.
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Evidence of default may also arise in the course of a regularly scheduled
periodic review of this Agreement pursuant to Government Code §65865.1. If
either party determines that the other is in default following the completion of
the normally scheduled periodic review, said party may give written notice of
termination of this Agreement specifying in said notice the alleged nature of
the default , and potential actions to cure said default where appropriate. If the
alleged default is not cured in sixty (60) days or within such longer period
specified in the notice, or the defaulting party waives its right to cure such
alleged default, this Agreement may be terminated by Town or Landowner.
5.2 Annual Review. The Town, acting through the Community
Development Director or his designee, shall, at least every twelve (12) months
during the term of this Agreement, commencing twelve (12) months from the
Effective Date of this Agreement, determine the extent of good faith
substantial compliance by Landowner with the terms of this Agreement. Such
periodic review shall be limited in scope to compliance with the terms of this
Agreement pursuant to California Government Code §65865.1. Each said
annual review shall be completed within approximately thirty (30) days of the
anniversary of the first meeting, unless said period is extended by mutual
consent of the Town and Landowner, or as the result of circumstances beyond
the reasonable control of Town and Landowner. Failure to complete said
review within the prescribed period shall be deemed a finding of good faith
and substantial compliance. Notice of such annual review shall include the
statement that any review may result in notice of termination of this
Agreement as provided for herein. A finding by Town of good faith
compliance by Landowner with the terms of the Agreement shall conclusively
determine said issue up to and including the date of said review.
The Town shall deposit in the mail or fax to Landowner a copy of all staff
reports and, to the extent practical, related exhibits concerning contract
performance at least seven (7) calendar days prior to such periodic review.
The Landowner shall be entitled to appeal any determination of the Town staff
to the Town Council. Any appeal has to be filed within twenty (20) days of
receipt by Landowner of all staff reports, exhibits and other documents
concerning contract performance from which the appeal is taken. Landowner
shall be permitted an opportunity to be heard orally and in writing regarding its
performance under this Agreement before the Town Council.
5.3 Estoppel Certificates.
5.3.1 Town shall, at any time and upon not less than twenty (20) days
prior written notice from Landowner, execute, acknowledge and deliver to
Landowner, lender, investor, or other party identified by Landowner a
statement in writing in substantial compliance with Exhibit "B" attached to this
Agreement.
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5.3.2 If Town does not execute , acknowledge and deliver the
statement required by subsection 5 .3.1 within the tim e period set forth therein,
the party requesting such statement shall provide the Town with a second
notice by telecopy/facsimile transmission . The failure by Town to deliver such
statement within ten (1 0) calendar days after such telecopy/facsimile notice
shall be conclusive evidence that this Agreement is in full force and effect, that
there are no uncured defaults in the performance of the Agreement by
Landowner or of any Town ordinances , regulations and policies regulating the
use and development of the property subject to this Agreement.
5.4 Default by Landowner/Withholding of Building Permit. Town may,
in the reasonable exercise of discretion , refuse to issue a building permit for
any structure within the Property if Landowner has failed and refuses to
complete any requirement reasonably required for such permit issuance or
Landowner is in violation of this Agreement.
5.5 Default by Town. Once a complete application has been provided by
Landowner and all other applicable legal requirements have been met, if Town
does not accept, review, approve or i ssue necessary d evelopment p ermits or
entitlements for use in a timely fashion as defined by this Agreement, or as
otherwise agreed to by the parties, or the Town otherwise defaults under the
terms of this Agreement, after notice from Landowner as set forth herein Town
agrees that Landowner shall not be obligated to proceed with or complete the
Project or the next phase thereof, until any such default by Town has been
cured.
5.6 Cumulative Remedies of Parties. In addition to any other rights or
remedies , Landowner or the Town may institute legal or equitable proceedings
to cure, correct or remedy any default, to specifically enforce any covenant or
agreement herein , to enjoin any threatened or attempted violation of the
provisions of this Agreement, or to obtain a judgment to determine the rights
and responsibilities of the parties hereunder. Prior to initiating any such legal
action, the party intending to seek such relief shall first give the other ten (10)
days written notice of its intent to seek such judicial relief and the reasons
therefore. Upon the request of the other party receiving such notice , both
parties shall then, within five (5) days thereafter, meet and confer in good faith
to attempt to resolve such dispute. If such dispute is not then resolved, the
complaining party may then pursue judicial relief. The Superior Court of the
County of Nevada situated in Truckee shall have jurisdiction for such judicial
challenges .
5. 7 Termination Upon Completion of Development. This Agreement
shall terminate upon the expiration of the term or when the Subject Property
has been fully developed and all of the Landowner's obligations in connection
therewith are satisfied as determined by the Town, provided that if there are
29
then an y still applicable pro visions of this Agreement any such shall be
deemed to survive the termination of this Agreement and shall remain binding
on the parties. Upon termination of this Agreement, the Town shall record a
notice of such termination in a form satisfactory to Landowner and the Town
acknowledging that the Agreement has been terminated .
5.8 Effect of Termination on Obligations. Termination of this
Agreement as to the Subject Property or any portion thereof shall not affect
any of the Landowner's obligations to comply with the Town's General Plan
and the terms and conditions of any applicable zoning, or subdivision map or
other land use entitlements approved with respect to the Subject Property, any
other covenants or any other development requirements specified in this
Agreement intended to continue after the termination of this Agreement, or
obligations to pay assessments, liens , fees, or taxes .
5.9 Effect of Termination on Vested Rights. Upon any early termination
of this Agreement prior to the execution of the full term , the entitlements,
conditions of development , limitations on fees and all other terms and
conditions of this Agreement shall no longer be vested hereby with respect to
the property affected by such termination and the Town shall no longer be
limited, by this Agreement, to make any changes or modifications to such
entitlements, conditions or fees applicable to such property.
5.10 Partial Invalidity. If for any reason whatsoever, any term , obligation
or condition of this Agreement or the application thereof to any person , entity
or circumstance, is to any extent held or rendered invalid, unenforceable or
illegal , then such term, obligation or condition: (a) shall be deemed to be
independent of the remainder of this Agreement and to be severable and
divisible therefrom , and its invalidity, u nenforceability or illegality shall not
affect , impair or invalidate the remainder of this Agreement or any part
thereof; and (b) the remainder of this Agreement not affected, impaired or
invalidated will continue to be applicable and enforceable to the fullest extent
permitted by law against any person, entity or circumstance other than those as
to which it has been held or rendered invalid, unenforceable and illegal.
5.11 Attorneys' Fees. Should any legal action be brought by either party for
breach of this Agreement or to enforce any provision herein, the prevailing
party shall be entitled to reasonable attorneys' fees, court costs and other costs
as may be fixed by the Court. Attorneys' fees shall include attorneys' fees on
any appeal , and in addition a party entitled to attorneys' fees shall be entitled to
all other reasonable costs for investigating such actions, taking depositions and
discovery, and all other necessary costs incurred in the litigation. "Reasonable
attorneys' fees," if awarded to Town, shall be assessed at market rate in the
event that representation was provided to the Town at below market rate.
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EXHIBIT B
ESTOPPEL CERTIFICATE
TO :
[Person or Entity by Developer or Landowner].
1. The Town of Truckee , a municipal corporation of the State of California
("Town") is a party to that certain Development Agreement , dated ______ , 2004, and
also entered into and executed by East West Partners and its direct affiliates ("Landowner").
2. The Development Agreement confers certain rights and imposes certain
obligations on Landowner and Town.
3. There are no uncured defaults in the performance of all of Landowner's
obligations under the Development Agreement, and Landowner has fully performed all such
obligations required to be performed as of the date of this Estoppel Certificate.
4. There are no uncured notices of violations of any Town ordinance, regulation, or
policy pertaining to the use and development of the property described in, and subject to, the
Development Agreement, nor is Town aware of any such violations.
5. The Development Agreement is in full force and effect, and Landowner is fully
entitled to all of the rights, benefits and entitlements set forth in the Development Agreement.
Exhibit C
Affordable Housing Requirement
I. Housing Unit Type and Affordability
A. R ental Unit s
1. 50 unit s Very Low Income Target Group
2 . 21 units Low Income Target Group
3. 21 Units Median Income Target Group
B. Attached
1. 18 units Median Income Target Group for Family of 3
2 . 19 units Median Income Target Group for Family of 4
3. 19 units Moderate Income Target Group for Family of3
4. 18 units ofModerate Income Target Group for Family of 4
C. Cottages
1. 8 units Median Income Target Group for Family of 3
2. 31 units Median Income Target Group for Family of 4
3. 9 units Moderate Income Target Group for Family of 3
4. 11 units Moderate Income Target Group for Family of 4
1
II. Housing-Restrictions
A. 30 Year Restriction on Rental Units
B. 30 Year Restriction on For Sale Units
C. Locals First Restriction for 97 Bonus Units
III. Development Agreement
A. First 5 Years
1. 29 Cottages, (10 deed restricted units), unless the market dictates
otherwise.
a) 50% Median Income target group
b) 50% Moderate Income target group
2. 25 Attached Housing Units, (3 deed restricted), unless market dictates
otherwise.
a) 50% Median Income target group
b) 50% Moderate Income target group
3. 92 Rental Units
a) 50 Very Low Income target group
b) 42 Low and Median Income target group
A minimum of the aforementioned items shall be completed within the first 5
years.
B. Second 5 Years
1. 15 Cottages (9 deed restricted units), unless market dictates otherwise.
a) 50% Median Income target group
b) 50% Moderate Income target group
2
2. 31 Attached Housing Units , (2 deed restricted), unless market dictates
otherwise .
a) 50% Median Income target group
b) 50% Moderate Income target group
Again, a minimum of the aforementioned items shall be completed within 10
years of the life of the agreement.
C. Last 5 Years
1. 15 Cottages (9 deed restricted units), unless market dictates otherwise.
a) 50% Median Income target group
b) 50% Moderate Income target group
2 . 18 Attached Housing Units, (3 deed restricted), unless market dictates
otherwise.
a) 50% Median Income target group
b) 50% Moderate Income target group
The last 5 years of the agreement will require the development to be completed as
described above, unless an extension of time is approved by both the Town
Council and the applicant.
3
0 TO WN OF TR UCK EE
RECEIVED
200~ APR 21 PH 12: 21