ATTACHMENT_5_EXHIBIT_A_DA_CITY_LEWIS
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RECORDING REQUESTED BY AND
WHEN RECORDED MAIL TO:
CITY CLERK
City of Grand Terrace
22795 Barton Road
Grand Terrace, CA 92313
No Recording Fee Required – Government Code § 27383 and Government Code § 6183
DEVELOPMENT AGREEMENT
between
THE CITY OF GRAND TERRACE
(“City”)
and
LEWIS LAND DEVELOPERS, LLC,
a Delaware limited liability company
Attachment 5
Exhibit A
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DEVELOPMENT AGREEMENT
THIS DEVELOPMENT AGREEMENT (this “Agreement”) is entered into on
__________, 2024, between the CITY OF GRAND TERRACE (the “City”), a municipal
corporation, and LEWIS LAND DEVELOPERS, LLC, a Delaware limited liability company
(the “Developer”), pursuant to Article 2.5 of Chapter 4 of Division 1 of Title 7, §§ 65864
through 65869.5 of the Government Code and Article XI, Section 2 of the California
Constitution. The City and the Developer (defined below) shall be referred to within this
Agreement jointly as the “Parties” and individually as a “Party.”
R E C I T A L S
A. Capitalized Terms. The capitalized terms used in these Recitals and throughout
this Agreement shall have the meaning assigned to them in Section 1. Any capitalized terms not
defined in Section 1 shall have the meaning otherwise assigned to them in this Agreement or
apparent from the context in which they are used.
B. Development of the Property. Concurrent with the approval of this Agreement,
the City has approved a [General Plan Amendment (Resolution No. _____ and Case No.
GPA-17-01), the Gateway at Grand Terrace Specific Plan (Ordinance No. _____ and Case
No. 00-17), a Zone Change (Ordinance No. _____ and Case No. 17-02), Tentative Subdivision
Map Nos. _______] and has certified a Final Environmental Impact Report (Resolution No.
_____ and State Clearinghouse No. 2021020110) for the area within the City owned by the
Developer described in Exhibit “A” (the “Property”), which permit the development of the
Property with residential development, commercial/retail development, parks and supporting
infrastructure.
C. Legislation Authorizing Development Agreements. To strengthen the public
planning process, encourage private participation in comprehensive planning and reduce the
economic risk of development, the Legislature of the State of California adopted the
Development Agreement Statute, authorizing the City to enter into an agreement with any person
having a legal or equitable interest in real property providing for the development of such
property and establishing certain development rights therein. The legislative findings and
declarations underlying the Development Agreement Statute and the provisions governing
contents of development agreements state, in Government Code §§ 65864(c) and 65865.2, that
the lack of public facilities, including, but not limited to, streets, sewerage, transportation,
drinking water, school, and utility facilities is a serious impediment to the development of new
housing, and that applicants and local governments may include provisions in development
agreements relating to applicant financing of necessary public facilities and subsequent
reimbursement over time.
D. Intent of the Parties. The Developer and the City have determined that the Project
is a development for which a development agreement is appropriate. The Parties desire to define
the parameters within which the obligations of the Developer, or its successors and assigns, for
infrastructure and public improvements and facilities will be met and to provide for the orderly
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development of the Property, assist in attaining the most effective utilization of resources within
the City and otherwise achieve the goals of the Development Agreement Statute.
E. Public Benefits of the Project. This Agreement provides assurances that the
public benefits identified below in this Recital E will be achieved in accordance with the terms of
this Agreement. The Project will provide local and regional public benefits to the City,
including, without limitation, the following:
1. Increased Tax Revenues. The Project will result in increased real property
and sales taxes and other revenues to the City.
2. Pedestrian Mobility. The Project encourages pedestrian mobility through
the provision of walking paths, through signage guiding pedestrians to nearby destinations and
through preservation of significant open space to create pleasant environments that will
encourage walking.
3. Pedestrian Connection. The Project will include a series of public
pedestrian trails throughout the Property.
4. Implement Circulation Element. The Project will include improvements
and contribute fees to improvements that will implement the Circulation Element of the General
Plan.
5. Regional Storm Drain Improvements. The Project will include substantial
regional storm drain improvements and detention basins that will improve flood control
protection for both the Project site and numerous other properties in the City.
6. Roadway and Utility Improvements. The project will include roadway
improvements to Taylor/Commerce Way and Van Buren Avenue, as well as extending sewer,
water, and dry utility infrastructure to the Project site.
F. Public Hearings: Findings. In accordance with the requirements of the California
Environmental Quality Act (Public Resources Code § 21000, et seq. (“CEQA”)), appropriate
studies, analyses, reports and documents were prepared and considered by the Planning
Commission and the City Council. The City Council, after making appropriate findings,
certified, by Resolution No. _________ adopted on _________, a Final Environmental Impact
Report for the Project, more specifically identified as the [Final Environmental Impact Report
for the Gateway at Grand Terrace Specific Plan, State Clearinghouse No. _____, as having been
prepared in compliance with CEQA]. On _____________, the Planning Commission, after
giving notice pursuant to Government Code §§ 65090, 65091, 65092 and 65094, held a public
hearing on the Developer’s application for this Agreement and, upon the conclusion of the
hearing, found on the basis of substantial evidence that this Agreement is consistent with the
General Plan, Specific Plan and all other applicable policy plans of the City and recommended
the City Council introduce an ordinance to approve this Agreement (DA-_____). On
__________, the City Council, after providing the public notice required by law, held a public
hearing to consider the Developer’s application for this Agreement and, upon the conclusion of
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the public hearing found on the basis of substantial evidence that this Agreement is consistent
with the General Plan, Specific Plan and all other applicable policy plans of the City.
G. Mutual Agreement. Based on the foregoing and subject to the terms and
conditions set forth herein, Developer and City desire to enter into this Agreement.
NOW, THEREFORE, in consideration of the mutual promises and covenants herein
contained, and having determined that the foregoing recitals are true and correct and should be,
and hereby are, incorporated into this Agreement, the Parties agree as follows:
1. DEFINITIONS. The following words and phrases are used as defined terms
throughout this Agreement. Each defined term shall have the meaning set forth below.
1.1 Actual Cost. “Actual Cost” shall have the meaning set forth in the
Financing Plan.
1.2 Annual Review. “Annual Review” means the annual review of the
Developer’s performance of this Agreement in accordance with Section 12.1 of this Agreement
and Government Code § 65865.1.
1.3 Application(s). “Application(s)” means a complete application for the
applicable land use approvals meeting all of the current ordinances of the City provided that any
additional or alternate requirements in those ordinances enacted after the Effective Date which
affect the application shall apply only to the extent permitted by this Agreement.
1.4 Appraisal of Land Value. “Appraisal of Land Value” when referred to
herein shall mean the determination by an experienced and independent MAI appraiser retained
by City (Developer may veto any appraiser selected by City for good cause), in a written
appraisal at fair market value based upon comparable sales of unimproved land, and serviced by
the existing infrastructure, and with the development restrictions of the Specific Plan.
1.5 Authorizing Ordinance. “Authorizing Ordinance” means Ordinance
No. _____ approving this Agreement.
1.6 Building Permit. “Building Permit,” with respect to any building or
structure to be constructed on the Property, means a building permit for not less than the shell
and core of such building or structure issued by the City’s Building and Safety Department.
1.7 Certificate of Occupancy. “Certificate of Occupancy,” with respect to
a particular building or other work of improvement, means the final certificate of occupancy
issued by the City with respect to such building or other work of improvement.
1.8 CFD. “CFD” means a community facilities district formed by the City
pursuant to the CFD Act.
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1.9 CFD Act. “CFD Act” means the Mello-Roos Community Facilities
Act of 1982 (Government Code § 53311 et seq.), as it may be amended from time to time,
authorizing the imposition of special taxes to fund capital facilities and services.
1.10 CFD Agreement. “CFD Agreement” shall have the meaning set forth
in Section 5.2 below.
1.11 City. “City” means the City of Grand Terrace, California.
1.12 City Council. “City Council” means the governing body of the City.
1.13 City Manager. “City Manager” means the City Manager of City.
1.14 City’s Old Ball Field Property. “City’s Old Ball Field Property” means
that certain property consisting of approximately 2.5 acres located northwest of Veterans
Freedom Park (APN 1167-151-75) which is subject to the Exchange Agreement.
1.15 Claim or Litigation. “Claim or Litigation” means any challenge by
any third party (i) to the legality, validity or adequacy of the General Plan, Land Use
Regulations, this Agreement, Development Approvals or other actions of the City pertaining to
the Project, (ii) seeking damages against the City as a consequence of the foregoing actions, for
the taking or diminution in value of their property or for any other reason, or (iii) seeking
injunctive or declarative relief against the City as a consequence of the foregoing actions, or due
to the action or inaction of the Developer.
1.16 Commencement of Construction. “Commencement of Construction”
means that a building or grading permit for any construction on the Property has been issued by
the City and the permitted activity has commenced pursuant to the permit.
1.17 DDA. Disposition and Development Agreement dated December
19, 2016 amended by (i) that certain Amendment No. 1 to Disposition and Development
Agreement dated February 27, 2017, (ii) that certain Amendment No. 2 to Disposition and
Development Agreement dated April 28, 2017; (iii) Amendment No. 3 to Disposition and
Development Agreement dated November 27, 2023.; (iv) Amendment No. 4 to Disposition and
Development Agreement dated April 23, 2024 and (v) Amendment No. 4 to the Disposition and
Development Agreement dated _______, 2024.
1.18 Dedicate or Dedication. “Dedicate” or “Dedication” means to offer
fee title, an easement or other equitable interest to the subject land to the City, other
governmental agency or a public utility.
1.19 Default. “Default” refers to any material default, breach, or violation
of a provision of this Development Agreement as defined in Section 13 below. “City Default”
refers to a Default by the City, while “Developer Default” refers to a Default by the Developer
and, in each case for both parties, includes any material default, breach or violation of any
provision of the DDA, Exchange Agreement, Subdivision Improvement Agreement or
Reimbursement Agreement.
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1.20 Developer. “Developer” shall mean Lewis Land Developers, LLC or
its successors and assigns.
1.21 Developer’s New Ball Park Property. “Developer’s New Ball Park
Property” means that certain property owned by Developer consisting of approximately 4.97
acres which is northwest of the terminus of Taylor Street (APN 1167-151-71) which is subject to
the Exchange Agreement.
1.22 Development or Develop. “Development” or “Develop” means the
improvement of the Property for purposes of effecting the structures, improvements and facilities
required or permitted by the Development Plan, including, without limitation: grading, the
construction of infrastructure and public facilities related to the Project, whether located within
or outside the Property; the construction of structures and buildings; the installation of
landscaping; and the operation, use and occupancy of, and the right to maintain, repair, or
reconstruct, any private building, structure, improvement or facility after the construction and
completion thereof, provided that such repair, or reconstruction takes place during the Term of
this Agreement on parcels subject to this Agreement.
1.23 Development Agreement Statute. “Development Agreement Statute”
means §§ 65864 through 65869.5 of the Government Code as it exists on the Effective Date.
1.24 Development Approvals. “Development Approvals” means all
site-specific (meaning specifically applicable to the Property only and not generally applicable to
some or all other properties within the City) plans, maps, permits, and entitlements to use of
every kind and nature. Development Approvals include, but are not limited to, specific plans,
site plans, tentative and final Subdivision Maps, vesting Tentative Subdivision Maps, variances,
zoning designations, conditional use permits, grading, building and other similar permits, the
site-specific provisions of general plans, environmental assessments, including environmental
impact reports, and any amendments or modifications to those plans, maps, permits, assessments
and entitlements. The term Development Approvals does not include rules, regulations, policies,
and other enactments of general application within the City.
1.25 Development Impact Fees. “Development Impact Fees” or “DIF”
means all manner of monetary consideration, other than a tax or assessment, charged by the City
in connection with mitigating the Project’s specific impacts and the development of the public
facilities related to the Project, including those fees, calculated on the basis of the number of
residential units, equivalent dwelling units or square footage of non-residential development to
be constructed. Development Impact Fees do not include Processing Fees.
1.26 Development Plan. “Development Plan” means the Existing
Development Approvals, Future Development Approvals and Existing Land Use Regulations.
1.27 DIF Improvement. “DIF Improvement” means a capital improvement
that is authorized to be funded with a DIF.
1.28 Director. “Director” means the City’s Director of Community
Development or equivalent official.
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1.29 Effective Date. “Effective Date” means the date this Agreement
becomes effective as set forth in Section 3.1.
1.30 Eligible Facilities. “Eligible Facilities” means the Proposed Project
Facilities and other public facilities, fees and contributions for public facilities, as described in
the Financing Plan.
1.31 Estoppel Certificate. “Estoppel Certificate” means an executed
certificate in the form attached hereto as Exhibit “H.”
1.32 Exaction. “Exaction” means a Dedication, payment of Development
Impact Fees or other monetary contribution and/or construction of public infrastructure required
by the City to serve the Property. Processing Fees are not an Exaction.
1.33 Excess Costs. “Excess Costs” means Actual Costs incurred by the
Developer for Proposed Project Facilities, including DIF Improvements, in excess of the
corresponding total DIF obligations for the Project or otherwise exceeding the Developer’s
obligation for a Proposed Project Facility as further described in Exhibit “D” hereto.
1.34 Exchange Agreement. “Exchange Agreement” means the
Agreement for Exchange of Real Property and Joint Escrow Instructions dated ____, 2024
between Developer and City providing for a land swap of the City’s Old Ball Field Property and
Developer’s New Ball Field Property.
1.35 Existing Development Approvals. “Existing Development Approvals”
means only the Development Approvals listed on Exhibit “B.”
1.36 Existing Land Use Regulations. “Existing Land Use Regulations”
means those Land Use Regulations applicable to the Property in effect on the Effective Date.
1.37 Financing and Conveyancing Map. Financing and Conveyancing
Map” means a map within the meaning of the Subdivision Map Act, as further defined in Section
9.5 hereof.
1.38 Financing Plan. “Financing Plan” means Exhibit “G” attached hereto.
1.39 Force Majeure. “Force Majeure” shall have the meaning set forth in
Section 19.2 below.
1.40 Future Development Approvals. “Future Development Approvals”
means those Development Approvals applicable to the Property that are consistent with this
Agreement and approved by the City after the Effective Date such as Subdivision Maps,
subdivision improvement agreements and other more detailed planning, engineering or
construction approvals.
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1.41 General Plan. “General Plan” means the City’s General Plan as it
exists on the Effective Date, and as expressly amended by future amendments applicable to the
Property, if permitted, by Section 11 below.
1.42 Goals and Policies for Financing. “Goals and Policies for Financing”
or “Goals and Policies” means the City’s [Community Facilities District Goals and Policies] in
effect as of the Effective Date.
1.43 Grading Permit. “Grading Permit” means a permit issued by the
City’s Building and Safety Department, and/or Engineering Department, as applicable, which
allows the excavation or filling, or any combination thereof, of earth on the Property.
1.44 Infrastructure Plan. “Infrastructure Plan” means Exhibit “C” attached
hereto, which describes the Proposed Project Facilities, the timing of their construction and the
respective responsibilities of the Developer, City and other Specific Plan area landowners with
respect thereto.
1.45 Innocent Owner. “Innocent Owner” shall have the meaning set forth
in Section 13.8 below.
1.46 Land Use Regulations. “Land Use Regulations” means those
ordinances, laws, statutes, rules, regulations, initiatives, policies, requirements, guidelines,
constraints, codes or other actions of the City and each department of the City which affect,
govern, or apply to the Property or the implementation of the Development Plan or this
Agreement. Land Use Regulations include the ordinances and regulations adopted by the City
which govern permitted uses of land, density and intensity of use and the design of buildings,
applicable to the Property, including, but not limited to, the General Plan, the Specific Plan,
zoning ordinances, development moratoria, implementing growth management and phased
development programs, ordinances establishing development exactions, subdivision and park
codes, any other similar or related codes and building and improvements standards, mitigation
measures required in order to lessen or compensate for the adverse impacts of a project on the
environment and other public interests and concerns or similar matters.
1.47 Local Agency. “Local Agency” means any public agency authorized
to levy, create or issue any form of land secured financing over all or any part of the Property,
including, but not limited to, the City.
1.48 Lot. “Lot” means any of the parcels legally created within the Project
as a result of any approved final subdivision, parcel or tract map, pursuant to the Subdivision
Map Act or recordation of a condominium plan pursuant to Civil Code § 1352 .
1.49 Master Tract Map. “Master Tract Map” (or “A Map”) means Tract
Map No. _____ and any other large scale tract map covering all Planning Areas which may
include all infrastructure necessary to Develop the tract and a phasing plan as to the development
of the infrastructure and the subsidiary subdivisions within the tract. The Master Tract Map is a
subdivision map within the meaning of the Subdivision Map Act and shall meet the requirements
of the Act and of this Agreement.
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1.50 Mortgage. “Mortgage” means a mortgage, deed of trust, sale and
leaseback arrangement or other transaction in which all, or any portion of, or any interest in, the
Property is pledged as security.
1.51 Mortgagee. “Mortgagee” refers to the holder of a beneficial interest
under a Mortgage.
1.52 Municipal Code. “Municipal Code” means the City’s Municipal Code
as it existed on the Effective Date and as it may be amended from time to time consistent with
the terms of this Agreement.
1.53 New Ball Field Improvements. “New Ball Field Improvements” means
the improvements required to be made by Developer pursuant to Section 3.3.3 of the Exchange
Agreement which improvements are detailed on Schedule 2 of the Exchange Agreement.
1.54 Non-Defaulting Party. “Non-Defaulting Party” shall have the meaning
set forth in Section 13.1 below.
1.55 Owner. “Owner” means the Developer and/or any successors during
the period of time that each such person or entity owns fee title to any portion of the Property
and subject to the terms of this Agreement.
1.56 Planning Area. “Planning Area” or “PA” means each of the twenty-
two (22) planning areas described in the Specific Plan.
1.57 Planning Commission. “Planning Commission” means the City’s
Planning Commission.
1.58 Property. “Property” means the _____ acres of land, more or less,
described in Exhibit “A” hereto.
1.59 Processing Fees. “Processing Fees” means the City’s normal fees for
processing, environmental assessment/review, tentative tracts/parcel map review, plan checking,
site review, site approval, administrative review, building permit (plumbing, mechanical,
electrical, building), inspection and similar fees imposed to recover the City’s costs associated
with processing, review and inspection of applications, plans, specifications, and construction,
etc.
1.60 Project. “Project” means the Development of the Property pursuant to
this Agreement and Development Plan.
1.61 Proposed Project Facilities. “Proposed Project Facilities” means those
public improvements required for the Development of the Property pursuant to the Existing
Development Approvals or as otherwise identified by the City and Developer for construction in
conjunction with each Development, as described in the Infrastructure Plan.
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1.62 Reimburse or Reimbursement. “Reimburse” or “Reimbursement”
means the provision by the City of cash or credit in return for land, improvements, goods or
services provided by Developer.
1.63 Reimbursement Agreement. The agreement to reimburse the City for
the costs and fees it has incurred related to this Project, approved on November 14, 2023.
1.64 Reservations of Authority. “Reservation of Authority” shall have the
meaning set forth in Section 11 below.
1.65 Schedule of Development Performance. “Schedule of Development
Performance” means the schedule for the construction of the public facilities attached as Exhibit
“J”.
1.66 Specific Plan. “Specific Plan” means the Gateway at Grand Terrace
Specific Plan approved by the City Council by Ordinance No. _____, adopted on ___________.
1.67 Soccer Field. “Soccer Field” shall mean that certain real property
owned by the City commonly known as the Richard Rollins Community Park at 22795 De Berry
Street in Grand Terrace (APN 1178-091-01-000) used as a soccer field.
1.68 Soccer Field Improvements. “Soccer Field Improvements” shall mean
improvements to be constructed by Developer as set forth on Exhibit “K” within the time
specified on Exhibit “K.”
1.69 Specific Mandatory Public Improvements. “Specific Mandatory Public
Improvements” means the public improvements to be constructed by Developer as set forth in
Exhibit “J.”
1.70 Subdivision Map. “Subdivision Map” (or “B Map”) means the
subsidiary subdivision maps for the Development of any Planning Area or portion thereof which
shall be consistent with the conditions of the Master Tract Map and shall contain its own phasing
plan for the installation of the infrastructure and other improvements within the subdivision. All
Subdivision Maps shall meet the applicable requirements of the Subdivision Map Act.
1.71 Subdivision Improvement Agreement. Subdivision Improvement
Agreement” means a subdivision improvement agreement as mandated by the Subdivision Map
Act for recordation of any final Subdivision Maps.
1.72 Subdivision Map Act. “Subdivision Map Act” means Government
Code § 66412 et seq. as implemented by Title 17 of the Municipal Code.
1.73 Taxes. “Taxes” means general or special taxes, including, but not
limited to, CFD special taxes, special assessments, ad valorem property taxes, sales taxes,
transient occupancy taxes, utility taxes or business taxes of general applicability citywide which
do not burden the Property disproportionately to similar types of development in the City and
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which are not imposed as a condition of approval of a development project. Taxes do not
include Development Impact Fees or Processing Fees.
1.74 Term. “Term” means that period of time during which this Agreement
shall be in effect and bind the Parties pursuant to Section 3 below.
1.75 Zoning Code. “Zoning Code” means Title 18 of the Municipal Code
as it existed on the Effective Date except (i) as amended by any zone change relating to the
Property approved concurrently with the approval of this Agreement, and (ii) as the same may be
further amended from time to time consistent with this Agreement.
2. EXHIBITS.
The following are the Exhibits to this Agreement:
Exhibit “A”: Map and Legal Description of the Property
Exhibit “B”: Existing Development Approvals
Exhibit “C”: Infrastructure Plan
Exhibit “D”: Timing and Source of Funding of Proposed Project Facilities
Exhibit “E”: Development Impact Fee/Credits/Reimbursements
Exhibit “F”: Additional Agreements Concerning Development
Exhibit “G”: Financing Plan
Exhibit “H”: Estoppel Certificate
Exhibit “I”: Form of Assignment and Assumption Agreement
Exhibit “J”: Schedule of Development Performance for Specific Mandatory
Public Improvements
Exhibit “K”: Soccer Field Improvements
Exhiibt “L”: New Ball Field Improvements
3. EFFECTIVE DATE AND TERM.
3.1 Effective Date. The Agreement shall become the effective upon last to
occur of: (i) date the Authorizing Ordinance takes effect, and the date this Agreement is fully
executed by both Parties.
3.2 Term. The term of this Development Agreement (the “Term”) shall
commence on the Effective Date and shall continue for a period of not less than ten (10) years
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from the Effective Date. The Developer shall be entitled to one five-year option to extend the
Term if the Developer demonstrates to the reasonable satisfaction of the City that it has complied
with the terms of this Develoment Agreement and has constructed the Specific Mandatory
Improvements by the deadlines set forth in Exhibit J (Performance Schedule)..
3.3 Termination for Default. This Agreement may be terminated due to
the occurrence of any Default in accordance with the procedures in Article 13.
3.4 Extension of the Term: In addition to the five-year extension pursuant
to Section 3.2 above, the Term shall be subject to one or more extensions of reasonable duration
with the approval of the City Council. If a Claim or Litigation has been filed with respect to this
Agreement or the Project the Developer is obligated to diligently contest or defend against the
claim or Litigation. If the Claim or Litigation actually causes a delay of more than sixty (60)
days in the commencement or completion of the Project and the Developer provides written
notice to the City of the delay caused by the claim or Litigation and demonstrates that it is
dilegently contesting or defending against the claim or Litigation, as determined by the City, then
the Term of this Agreement shall be extended by the period of time from such filing until the
date that the Claim or Litigation has been settled, dismissed or concluded, and the time for any
further judicial review has run. For the avoidance of doubt, Developer shall have the right to
delay proceeding with the Project during the claim process or litigation, and such delay shall
constitute an “actual delay” under this Agreement.
4. DEVELOPMENT OF THE PROPERTY.
4.1 Right to Develop. During the Term, the Developer shall have vested
rights to Develop the Property (subject to Section 11 below) to the full extent permitted by the
Development Plan and this Agreement. Except as provided within this Agreement, the
Development Plan shall exclusively control the Development of the Property (including the uses
of the Property, the density or intensity of use, the maximum height and size of proposed
buildings, the provisions for reservation or dedication of land for public purposes and the design,
improvement and construction standards and specifications applicable to the Project). The
number of residential units authorized to be constructed hereunder and the approximate acreage
of commercial development, without regard to any density bonus or incentive or concession for
child care pursuant to Government Code §§ 65915 through 65918 or other similar legislation or
regulation, is _____ units and approximately _____ acres of commercial development. In
furtherance of the foregoing, the Developer retains the right to apportion the uses, intensities and
densities, between itself and any subsequent Owners, upon the sale, transfer, or assignment of
any portion of the Property, so long as such apportionment is consistent with the Existing Land
Use Regulations and this Agreement. Nothing in this Agreement is intended to diminish any
Owner’s vested rights as may be established under other applicable laws.
4.2 Right To Future Approvals. Subject to the City’s exercise of its police
power authority as specified in Section 11 below, the Developer shall have vested rights: (i) to
receive from the City all Future Development Approvals for the Property that are consistent
with, and implement, the Existing Land Use Regulations and this Agreement, subject to the
limitations set forth in Subsection 11.1 ; (ii) not to have such approvals be conditioned or
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delayed for reasons which are inconsistent with the Existing Land Use Regulations or this
Agreement; and (iii) to Develop the Property in a manner consistent with such approvals in
accordance with the Existing Land Use Regulations and this Agreement. All Future
Development Approvals for the Property including, without limitation, Financing and
Conveyancing Maps, Master Tract Maps and Subdivision Maps, shall upon approval by the City,
be vested in the same manner as provided in this Agreement for the Existing Development
Approvals, for the Term of this Agreement.
4.3 Existing Development Approvals. Only those items specifically set
forth on Exhibit “B” hereto are deemed Existing Development Approvals for purposes of this
Agreement. Any approvals not included within Exhibit “B” shall not apply to the Project with
the exception of those reservations set forth in Section 11 below.
4.4 Specific Plan. Except as required by Exhibit J, the Developer shall
have the right, but not the obligation, to Develop the Property for the uses, in the manner and at
the locations specified in the Specific Plan.
4.5 Priority Of Specific Plan. The City has determined that the Specific
Plan is consistent with the General Plan, as amended through [GPA-_____], and the Zoning
Code, as amended through [ZC-_____]. As such, the Specific Plan shall be the primary
document governing the Development of the Property and, in the event of a conflict, shall prevail
over any other of the Existing Land Use Regulations except for this Agreement, which prevails
over the Specific Plan.
4.6 Later Enacted Measures. This Agreement is a legally binding contract
which will supersede any initiative, measure, moratorium, statute, ordinance, or other limitation
enacted after the Effective Date, except as provided in Section 11. Any such enactment which
materially affects, restricts, impairs, delays, conditions, or otherwise impacts the implementation
of the Development Plan (including the issuance of all necessary Future Development Approvals
or permits for the Project) in any way contrary to the terms and intent of this Agreement shall not
apply to the Project.
5. FINANCING AND THE CITY’S OBLIGATIONS.
5.1 Formation of CFD. Subject to the provisions of this Article 5, some or
all of the Eligible Facilities may be funded through the City’s formation of a CFD and the levy of
a special tax of the CFD (the “Special Tax”) and issuance of bonds secured by the Special Tax
(the “Bonds”) in accordance with the Financing Plan.
5.2 Procedures for Formation. The Developer shall promptly commence
the CFD process in order to timely comply with the requirements of this Agreement set forth in
Exhibit C and Exhibit J. The City and the Developer shall cooperate in good faith to form the
CFD consistent with the Financing Plan. Final terms and conditions regarding the formation of
the CFD, the rate and method of apportionment of the Special Taxes to be levied in the CFD, any
acquisition or construction agreements related thereto, and the terms of one or more series of
Bonds to be issued in conjunction therewith shall be determined jointly by City and the
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Developer in accordance with the Financing Plan and the City’s Goals and Policies for
Financing. In conjunction with the formation of the CFD, the Developer and the City shall
cooperate in good faith to negotiate and finalize any acquisition and funding agreement prior to
the formation of the CFD addressing the terms of construction, acquisition and financing of any
of the Eligible Facilities to be funded by the CFD (such agreement to be referred to herein as the
“CFD Agreement”).
5.3 Timing of Formation. After Developer has initiated formation of the
CFD, City shall take all necessary steps to form the CFD, in good faith, consistent with the
City’s Goals and Policies and applicable law. City shall complete formation proceedings within
180 days after Developer makes the necessary complete submission.
5.4 Term of Special Tax and Bonds. The term of the Special Tax on the
Property implemented as part of the CFD shall not exceed 40 years. The term of the Bonds to be
paid for with the Special Tax shall not exceed 30 years. The City shall record a notice of
cessation of the special tax lien following payment in full of the Bonds and any remaining
administrative expenses.
5.5 Failure to Form CFD. If the CFD is not formed after Developer’s
written application, or is formed but not in accordance with the terms of this Agreement, for a
period of 60 days after either receiving written notice from the City of its decision not to form a
CFD or after the City forms the CFD, Developer shall have the right, but not the obligation, to
terminate this Agreement upon providing 30 days written notice to the City prior to the actual
termination date.
6. TIME FOR CONSTRUCTION AND COMPLETION OF PROJECT AND
DEVLOPER OBLIGATIONS.
6.1 Timing of Development. The Parties acknowledge that the substantial
public benefits to be provided by the Developer to the City pursuant to this Agreement are in
consideration for, and in reliance upon, assurances that the City will permit Development of the
Property in accordance with the terms of this Agreement. Accordingly, the City shall not
attempt to restrict, limit or otherwise dictate the Development of the Property in any manner that
would conflict with the provisions of this Agreement. One of the primary reasons the City is
willing to enter into this Development Agreement is Developer’s commitment to develop the
Project Site with a mix of uses as set forth in the Specific Plan within a reasonable period of
time. However, the City also acknowledges that the Developer cannot predict the exact timing
or rate at which the Property will be Developed, and is therefore willing to provide the
Developer with a reasonable level of flexibility in the timing of development. The timing and
rate of Development depend on numerous factors such as market demand, interest rates,
absorption, completion schedules and other factors, which are not within the control of the
Developer or the City. In Pardee Construction Co. v. City of Camarillo (1984) 37 Cal.3d 465,
the California Supreme Court held that a construction company was not exempt from a city’s
growth control ordinance notwithstanding that the construction company and the city had entered
into a consent judgment (tantamount to a contract under California law) establishing the
company’s vested rights to develop its property in accordance with the zoning. The California
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Supreme Court reached this result on the basis that the consent judgment failed to address the
timing of development. It is the intent of the Parties to avoid the result of the Pardee case by
acknowledging and providing in this Agreement that the Developer shall have the vested right to
Develop the Property in such order and at such rate and at such time as the Developer deems
appropriate, subject to the thresholds for completion of certain public facilities as specified in
this Development Agreement and the Performance Schedule attached as Exhibit J. In addition
to, and not in limitation of, the foregoing, but except as set forth in the following sentence, it is
the intent of the Parties that no City moratorium or other similar limitation relating to the rate or
timing of the Development of the Property or any portion thereof, except a moratorium or
limitation necessitated by a public safety emergency or to avoid a public safety emergency,
whether adopted by initiative, referendum or otherwise, shall apply to the Property to the extent
that such moratorium, referendum or other similar limitation is in conflict with this Agreement.
Notwithstanding the foregoing, the Developer acknowledges that nothing herein is intended or
shall be construed as (i) overriding any provision of the Existing Land Use Regulations relating
to the phasing of Development of the Property; or (ii) restricting the City from exercising the
powers described in Section 11 of this Agreement to regulate Development of the Property.
Nothing in this Section 6.1 is intended to excuse or release the Developer from any obligation set
forth in this Agreement which is required to be performed on or before a specified calendar date
or event without regard to whether or not one or more Owners proceeds with any portion of the
Project.
6.2 Public Improvements. The scope, phasing and timing requirements for
the construction of all Proposed Project Facilities required for the Project shall be in accordance
with the Infrastructure Plan.
6.3 Soccer Field Refurbishment. Developer shall promptly commence the
Soccer Field Improvements in accordance with the specifications set forth in Exhibit “K”
attached hereto (“Soccer Field Improvements”) at the City Soccer Field, subject to City approval
of the commencement date to ensure a proper grow-in period for the new turf and minimal
interference with the AYSO season. The Soccer Field Improvements shall be completed within
in six (6) months of commencement as Developer understands that the field is critical for the
following AYSO season. Notwithstanding any other provision of this Agreement addressing or
authorizing delays in performance or tolling of deadlines in the agreement, Developer’s
obligation to complete the Soccer Field Improvements by the deadlines set forth in this section
and Exhibit “K” shall not be changed, delayed or extended for any reasons, including a Force
Majeur event, the initiation of litigation challenging the Project or the environmental impact
report certified for the project or any other reason whatsoever. Prior to the City issuing any
permits for the Soccer Field Improvements, Developer shall obtain the City Engineer’s approval
of an Engineer’s estimate for the cost of constructing the the Soccer Field Improvements and
provide the City with payment and performance security of the type and in the amounts set forth
in Government Code, sections 66499 through 66499.3and Grand Terrace Municipal Code,
Section 17.56.060 for the Soccer Field Improvements.
6.4 New Ball Field and Land Swap. One of the Special Mandatory Public
Improvements is a new ball park facility comprised of playground equipment, parking lot, and a
lighted baseball field to be constructed on the Developer’s New Ball Park Property to replace the
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existing, unlighted ball field located at the City’s Old Ball Park Property. Developer shall
commence and construct the New Ball Field Improvements in the time specified in the Exchange
Agreement. Prior to the City issuing any permits for the New Ball Field Improvements,
Developer shall obtain the City Engineer’s approval of an Engineer’s estimate for the cost of
constructing the the New Ball Field Improvements and provide the City with payment and
performance security of the type and in the amounts set forth in Government Code, sections
66499 through 66499.3 and Grand Terrace Municipal Code, Section 17.56.060 for the New Ball
Field Improvements.
6.5 Additional Development Conditions. The Parties further agree to and
accept the conditions of Development of the Property set forth in Exhibit “F.”
6.6 Annual Contribution to the City. During the Term of this Agreement
the Developer shall make on or before each anniversary of the Effective Date an annual
contribution to the City in the amount of Five Thousand Dollars ($5,000.00) to be placed in a
City account earmarked to fund events that benefit the City and its residents, as determined by
the City.
7. FEES, TAXES AND ASSESSMENTS.
7.1 Processing Fees. During the Term of this Agreement, the City may
require the Developer to pay all Processing Fees applicable to the Project at the rates in effect on
the applicable Application date or as described in this Agreement unless a specific amount is
stated herein. Within 90 days of the Developer providing the City with a detailed accounting of
the costs it incurred in connection with the processing of the Specific Plan and the
Environmental Impact Report (the “Reimbursable Specific Plan Costs”) the City will adopt a
“Specific Plan Fee” applicable to the entire Specific Plan area on a per developable acre basis to
recover the “Reimbursable Specific Plan Costs”. The Specific Plan Fee will increase by 5% each
year and be collected prior to the issuance of a Building Permit. The Developer shall receive a
credit against the Specific Plan Fee applicable to the Property in the amount equal to its
Reimbursable Specific Plan Costs and the amount by which such Reimbursable Specific Plan
Costs exceed such credit shall be Reimbursed to the Developer from Specific Plan Fees collected
from others within the Specific Plan area every six (6) months until the Developer has been
Reimbursed in full. The City shall take all necessary actions to terminate the Specific Plan Fee
when the City has determined the Developer has recovered its Reimbursable Specific Plan Costs
or twenty (20) years from the effective date of the Specific Plan Fee, whichever is earlier.
7.2 Development Impact Fees.
7.2.1 Limit on Exactions, Mitigation Measures, Conditions and
Development Fees. The City shall charge and impose only those Exactions, mitigation measures
and conditions, including, without limitation, dedications as are set forth in the Existing Land
Use Regulations, those DIFs as are expressly set forth in Exhibit “E” attached hereto, and no
others. The amounts of the DIFs applicable to the Project shall not increase during the first five
(5) years after the Effective Date of the Agreement. After this five year period, the Project shall
be subject to the DIFs at the rates in effect at the time of payment.
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7.2.2 Payment of Development Impact Fees. Subject to available
credits, the Development Impact Fees set forth on Exhibit “E” attached hereto, shall be paid at
the issuance of the Certificate of Occupancy for each building in the amount specified in
Exhibit “E”. The Developer may also elect to pay Development Impact Fees earlier under any of
the following circumstances:
(i) the payment is made with respect to a building or lot for which
rough grading has been certified as complete, building plans have been
approved and all conditions of approval for the issuance of a Building
Permit have been satisfied;
(ii) the DIFs are financed through a CFD; or
(iii) the early payment is approved by the City Manager.
Unless otherwise specified herein, the development of the Property shall not be subject to any
other Development Impact Fees.
7.2.3 Development Impact Fee Credits, City Contributions and
Reimbursements.
The Developer will be dedicating land and constructing, installing and improving various
Proposed Project Facilities that are DIF Improvements, as specified in Exhibit “D.” As a result,
all development within the Property shall be entitled to a credit against the applicable DIFs in an
amount equal to the lesser of (i) the Actual Costs of each DIF Improvement incurred by the
Developer and (ii) the total corresponding DIF obligation of the Project. The financing of any
DIF Improvement through a CFD shall not preclude the Developer’s receipt of corresponding
DIF credit for that Improvement.
The terms of the Reimbursement Agreement with the Developer shall otherwise be
consistent with the City’s forms generally used with all other development projects. Such
Reimbursement shall be paid to the Developer as future DIFs are collected by the City from
other benefited developments. Repayment shall extend beyond the Term of this Agreement if
necessary to Reimburse Developer as provided herein. To the extent that CFD proceeds are used
to fund the Excess Costs incurred by Developer, the DIFs collected from benefited developments
will be paid to the CFD.
8. PROCESSING OF REQUESTS AND APPLICATIONS: OTHER
GOVERNMENT PERMITS.
8.1 Processing. In reviewing any discretionary Future Development
Approvals, the City may impose only those conditions, exactions, and restrictions that are
allowed by the Development Plan and this Agreement, except otherwise specified in Section 11.
Upon satisfactory completion by the Developer of all required preliminary actions, meetings,
submittal of required information and payment of appropriate Processing Fees, if any, the City
shall promptly commence and diligently proceed to complete all required steps necessary for the
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implementation of this Agreement and the Project in accordance with this Agreement and the
Existing Land Use Regulations, subject to Developer’s payment of applicable processing fees
and potential additional costs set forth in Section 9.2 to ensure the availability of City resources.
In this regard, the Developer, in a timely manner, will provide the City with all documents,
applications, plans and other information necessary for the City to carry out its obligations
hereunder and will cause the Developer’s planners, engineers and all other consultants to submit
in a timely manner all required materials and documents therefor. It is the express intent of this
Agreement that the parties cooperate and diligently work to implement any zoning or other land
use, site plan, subdivision, grading, building or other approvals for the Project in accordance with
the Development Plan and those items set forth in Exhibit “F” subject to Section 11.
8.2 Additional Inspectors and Plan Checkers. In the event that the
Developer requests it, the City shall permit overtime, including both additional days and hours,
for inspections and plan checking at the Developer’s expense. The Developer shall pay overtime
based on the City’s fully-burdened hourly rate established for the appropriate staff position. In
the event that the City is unable to provide inspectors or plan checkers capable of meeting the
demand for inspections or plan checks required for the Project in a timely fashion, the City shall,
if requested to do so by the Developer and at the Developer’s expense, employ additional private
entities or persons to perform such services.
8.3 Development Approvals. The City shall extend through at least the
Term hereof (pursuant to Government Code §§ 66452.6 and 65863.9) all Master Tract Maps, all
tentative and vesting tentative Subdivision Maps and all other Development Approvals applied
for by the Developer during the Term of this Agreement and approved by the City in the future
in accordance with the Subdivision Map Act.
8.4 Multiple Final Maps. The Developer may file as many final
Subdivision Maps and final Master Tract Maps as it deems appropriate in its sole and absolute
discretion.
8.5 Financing and Conveyance Maps: The Developer may have a
Financing and Conveyancing Map approved for the purpose of conveying portions of the
Property to others and/or for the purpose of creating legal lots that may be used as security for
loans to develop the Property. Other than this Development Agreement, any such Financing and
Conveyancing Map shall not authorize any Development and shall not be subject to any
additional conditions, Exactions or restrictions, other than monumentation and conditions that do
not require the payment of money, other than Processing Fees, or the installation or construction
of improvements, other than those contained in the Development Approvals.
8.6 Water Availability. When applicable, any Subdivision Maps prepared
for the Property, or any portion of the Property, shall comply with the provisions of Government
Code § 66473.7.
8.7 Other Governmental Permits. The City shall cooperate with the
Developer in Developer’s efforts to obtain other permits and approvals as may be required from
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other governmental or quasi-governmental agencies having jurisdiction over the Project as may
be required for the Development of, or provision of services to, the Project.
8.8 Public Agency Coordination. The City and Developer shall cooperate
and use reasonable efforts in coordinating the implementation of the Project with other public
agencies, if any, having jurisdiction over the Property or the Project.
9. AMENDMENT AND MODIFICATION OF DEVELOPMENT AGREEMENT.
9.1 Initiation of Amendment. Either Party may propose an amendment to
this Agreement.
9.2 Procedure. Except as set forth in Section 10.4 below, the procedure
for proposing and adopting an amendment to this Agreement shall be the same as the procedure
required for entering into this Agreement in the first instance, and meet the requirements of the
Development Agreement Statute § 65868 and shall be recorded in the Official Records of San
Bernardino County.
9.3 Consent. Except as expressly provided in this Agreement, no
amendment to all or any provision of this Agreement shall be effective unless set forth in writing
and signed by duly authorized representatives of each of the Parties hereto and recorded in the
Official Records of San Bernardino County. In the event that such amendment affects only a
portion of the Property, such amendment shall only require the agreement of the City, the
Developer of that portion of the Property and the Owner of that portion of the Property.
9.4 Minor Modifications.
9.4.1 Flexibility Necessary. The provisions of this Agreement require
a close degree of cooperation between the City and the Developer. Implementation of the
Project may require minor modifications of the details of the Development Plan and affect the
performance of the Parties under this Agreement. The anticipated refinements to the Project may
demonstrate that clarifications to this Agreement and the Development Plan are appropriate with
respect to the details of performance of the City and the Developer. The Parties desire to retain a
certain degree of flexibility with respect to those items covered in general terms under this
Agreement. Therefore, non-substantive and procedural modifications of the Development Plan
pursuant to this Section 10.4 shall not require modification of this Agreement and may be
approved by the City Manager. However, the City Manager shall have the discretion to submit
any minor modifications to the City Council for approval.
9.4.2 Non-Substantive Changes. A modification will be deemed non-
substantive and/or procedural if it does not:
9.4.2.1 Alter the permitted uses of the Property as a whole;
9.4.2.2 Increase the density or intensity of use of the Property as a
whole.
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9.4.2.3 Delete a requirement for the reservation or dedication of
land for public purposes within the Property as a whole and in a manner that will result in
significant public health and safety impacts.
9.4.2.4 Waive or substantially alter any Developer obligations to
comply with any conditions of approval of any Development Approvals unless the City
determines the obligation has been replaced with a comparable obligation or is no longer
necessary or feasible.
9.4.2.5 Waive or substantially alter any Developer obligations to
comply with any mitigation measures in the Mitigation Monitoring and Reporting Program
adopted with the Certification of the Environmental Impact Report dated _____ prepard for the
Project unless the City determines the obligation has been replaced with a comparable obligation
or is no longer necessary or feasible.
9.4.2.6 . Waive or substantially reduce any fees, payments or
exactions required of the Developer under this Agreement.
9.4.2.7 Materially increase costs to the City or increase the City’s
exposure to potential legal liability.
9.4.3 Hearing Rights Protected. Notwithstanding the foregoing, City
will process any change to this Agreement consistent with state law and will hold public hearings
thereon if so required by state law and the Parties expressly agree nothing herein is intended to
deprive any party or person of due process of law.
9.5 Effect of Amendment to Development Agreement. Except as
expressly set forth in any such amendment, an amendment to this Agreement will not alter,
affect, impair, modify, waive, or otherwise impact any other rights, duties, or obligations of
either Party under this Agreement.
10. RESERVATIONS OF AUTHORITY.
10.1 Limitations, Reservations and Exceptions. Notwithstanding anything
to the contrary set forth hereinabove, the City may exercise its regulatory discretion only to the
extent permitted by the Existing Land Use Regulations and the following Land Use Regulations
adopted by City hereafter which shall apply to and govern the Project (“Reservation of
Authority”):
10.1.1 Future Regulations. Future Land Use Regulations which (i) are
not in conflict with the Existing Land Use Regulations, (ii)allowed under the Development
Agreement Statute (§ 65866); or (ii) are in conflict with the Existing Land Use Regulations but
the application of which to the Project has been consented to in writing by Developer.
10.1.2 State and Federal Laws and Regulations. In compliance with
Government Code §65869.5, where state or federal laws or regulations enacted after the
Effective Date prevent or preclude compliance with one or more provisions of this Agreement,
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the Parties shall meet and confer in order to mutually determine and implement modifications to,
or the suspension of, those provisions of the Agreement as may be necessary to comply with
such state or federal laws and regulations in the manner that has the least negative impact on the
Development Plan and Developer’s rights and benefits under this Agreement.
10.1.3 Public Health and Safety/Uniform Codes.
10.1.3.1 Adoption Automatic Regarding Uniform Codes.
This Agreement shall not prevent the City from adopting future Land Use Regulations or
amending Existing Land Use Regulations which are uniform codes and are based on
recommendations of a multi-state professional organization and become applicable throughout
the City, such as, but not limited to, the Uniform Building, Electrical, Plumbing, Mechanical, or
Fire Codes.
10.1.3.2 Adoption Regarding Public Health and Safety. This
Development Agreement shall not prevent the City from adopting future Land Use Regulations
respecting public health and safety to be applicable throughout the City, including the Property,
which directly result from findings by the City that failure to adopt such future Land Use
Regulations would result in an imminent significant and unanticipated condition injurious or
detrimental to the public health and safety and that the application of such future Land Use
Regulations to the Property are the only reasonable means to correct or avoid such condition.
10.2 This Agreement shall not be construed to limit the obligations of the
City to comply with CEQA or any other federal or state law.
10.3 Fees, Taxes and Assessments. Notwithstanding any other provision
herein to the contrary, the City retains the right (i) to impose or modify Processing Fees to the
extent applicable on a Citywide basis, (ii) to impose or modify Citywide business licensing or
other fees pertaining to the operation of businesses, (iii) to impose or modify Taxes that apply
Citywide such as utility taxes, sales taxes and transient occupancy taxes and (iv) to impose or
modify Citywide user fees and charges for City electrical utility charges and storm water quality
fees that are required in order for the City to fund facilities, activities or services necessary to
comply with state, federal or regional laws and regulations, and that do not duplicate facilities,
activities or services funded with HOA assessments.
11. PERIODIC REVIEW.
11.1 Good Faith Compliance. Developer shall annually provide
documentation of good faith compliance with this agreement per Govt. Code Section 65865.1 to
the City. The City may, at least every twelve (12) months, during the Term of this Agreement,
conduct a public meeting to review the extent of good faith substantial compliance by Developer
with the terms of this Agreement at Developer’s expense. Such periodic review shall be limited
in scope to compliance with the terms of this Agreement pursuant to Government Code Section
65865.1. Notice of such annual review will be provided by the Development Services Director
to Developer thirty (30) days prior to the date of the public meeting by the Planning Commission
and shall include the statement that any review may result in amendment or termination of this
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Agreement as provided herein. A finding by the City of good faith compliance by the Developer
with the terms of this Development Agreement shall conclusively determine the issue up to and
including the date of such review. Nothing in this Section shall be deemed to create a duty of
responsibility of City or Developer or define an event of default that but for such concurrent
review would not have been so created or defined.
11.3 Failure to Comply in Good Faith. If the City Council makes a finding
that the Developer has not complied in good faith with the terms and conditions of this
Agreement, the City shall provide written notice to the Developer describing: (i) such failure to
comply with the terms and conditions of this Agreement (referenced to herein as a “Default”);
(ii) the actions, if any, required by the Developer to cure such Default; and (iii) the time period
within which such Default must be cured. The Developer shall have, at a minimum, thirty (30)
business days after the date of such notice to cure such Default, or in the event that such Default
cannot be cured within such thirty (30) day period but can be cured within one (1) year, the
Developer shall have commenced the actions necessary to cure such Default and shall be
diligently proceeding to complete such actions necessary to cure such Default within thirty (30)
days from the date of notice. If the Default cannot be cured within thirty (30) days, as
determined by the City during periodic or special review, the Developer shall have such time as
may be reasonably required to cure the Default with diligent effort.
11.5 Failure to Cure Default. If the Developer fails to cure a Default within
the time periods set forth above, the City Council may modify or terminate this Agrement as
provided below.
11.7 Estoppel Certificate. If at the conclusion of the periodic review, the
City finds that the Developer is in substantial compliance with this Agreement, the City shall
upon the Developer’s request, issue an Estoppel Certificate to the Developer in a form
satisfactory to the City Attorney.
11.8 Failure to Conduct Periodic Review. The failure of either party to
conduct its periodic review shall not be a Developer Default unless Developer fails to cooperate
in providing necessary information.
12. DEFAULT, REMEDIES AND TERMINATION.
12.1 Rights of Non-Defaulting Party after Default. The Parties
acknowledge that both Parties shall have hereunder the remedies as provided by law or equity
following the occurrence of a Default or to enforce any covenant or agreement herein, except
that in no event shall either party, or its officers, agents, attorneys, or employees, be liable in
damages for any breach or violation of this Agreement, it being expressly understood and agreed
that the remedies for a breach or violation of this Agreement by either partyshall be limited to
terminating this Development Agreement (and also all related agreements being the
Reimbursement Agreement and the Exchange Agreement (collectively the “Related
Agreements”) or pursuing an action in mandamus, specific performance or other injunctive or
declaratory relief to enforce the provisions of all the Related Agreements. Before this Agreement
may be terminated or action may be taken to obtain judicial relief the Party seeking relief (“Non-
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Defaulting Party”) shall comply with the notice and cure provisions of this Section 13.Cross
Default. Any default under any other agreements between the City and Developer including, but
not limited to, the Reimbursement Agreement, Exchange Agreement, DDA, etc. shall be a
default under this Agreement.
12.2 Notice and Opportunity to Cure. A Non-Defaulting Party in its
discretion may elect to declare a Default under this Agreement in accordance with the procedures
hereinafter set forth for any failure or breach of the other Party (“Defaulting Party”) to perform
any material duty or obligation of the Defaulting Party under the terms of this Agreement.
However, the Non-Defaulting Party must provide written notice to the Defaulting Party setting
forth the nature of the breach or failure and the actions, if any, required by the Defaulting Party
to cure such breach or failure. The Defaulting Party shall be deemed in Default under this
Agreement, if the breach or failure can be cured, but the Defaulting Party has failed to take such
actions and cure such default within thirty (30) days after the date of such notice or five (5) days
for monetary defaults (or such lesser time as may be specifically provided in this Agreement).
However, if such non-monetary Default cannot be cured within such thirty (30) day period, and
if and, as long as the Defaulting Party does each of the following:
(i) Notifies the Non-Defaulting Party of the Defaulting Party’s proposed
course of action to cure the default;
(ii) Promptly commences to cure the default within the thirty (30) day period;
(iii) Makes periodic reports to the Non-Defaulting Party as to the progress of
the program of cure;
(iv) Diligently prosecutes such cure to timely completion then
The Defaulting Party shall not be deemed in breach of this Agreement once the breach has been
cured.
Notwithstanding the foregoing, the Defaulting Party shall be deemed in default
under this Agreement if the breach or failure involves the payment of money but the Defaulting
Party has failed to completely cure the monetary default within ten (10) days (or such lesser time
as may be specifically provided in this Agreement) after the date of such notice.
12.3 Dispute Resolution.
12.3.1 Meet and Confer. Prior to any Party issuing a Default Notice
hereunder, the Non-Defaulting Party shall inform the Defaulting Party either orally or in writing
of the Default and request a meeting to meet and confer over the alleged default and how it might
be corrected. The Parties through their designated representatives shall meet within ten (10)
days of the request therefore. The Partiesmay voluntarily (without waiving rights) meet as often
as may be necessary to correct the conditions of default, but after the initial meeting either Party
may also terminate the meet and confer process and proceed with the formal Default Notice.
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12.3.2 Termination Notice. Upon receiving a Default Notice, should
the Defaulting Party fail to timely cure any default, or fail to diligently pursue such cure as
prescribed above, the Non-Defaulting Party may, in its discretion, provide the Defaulting Party
with a written notice of intent to terminate this Agreement and other agreements (“Termination
Notice”). The Termination Notice shall state that the Non-Defaulting Party will elect to
terminate the Agreement and such other agreements as the Non-Defaulting Party elects to
terminate within thirty (30) days and state the reasons therefor (including a copy of any specific
charges of default) and a description of the evidence upon which the decision to terminate is
based. Once the Termination Notice has been issued, the Non-Defaulting Party’s election to
terminate any agreements will only be waived or resolved (i) if the Defaulting Party fully and
completely cures all defaults prior to the date of termination, (ii) pursuant to Section 13.6.3
below or (iii) if the Non-Defaulting Party elects to revoke the Termination Notice.
12.3.3 Hearing Opportunity Prior to Termination. Prior to any
termination by the City, a termination hearing shall be conducted as provided herein
(“Termination Hearing”). The Termination Hearing shall be scheduled as an open public hearing
item at a regularly-scheduled City Council meeting within forty-five (45) days of the
Termination Notice, subject to any legal requirements including but not limited to the Ralph M.
Brown Act, Government Code Sections 54950-54963. At said Termination Hearing, the
Defaulting Party shall have the right to present evidence to demonstrate that it is not in default
and to rebut any evidence presented in favor of termination. Based upon substantial evidence
presented at the Termination Hearing, the Council may, by adopted resolution, act as follows:
A. Decide to terminate this Agreement.
B Determine that the alleged Defaulting Party is innocent of a default
and, accordingly, dismiss the Termination Notice and any charges of default; or
C. Impose conditions on a finding of default and a time for cure, such
that Defaulting Party’s fulfillment of said conditions will waive or cure any default.
Findings of a default or a condition of default must be based upon substantial
evidence supporting the following three findings: (i) that a default in fact occurred and has
continued to exist without timely cure, and (ii) that the Non-Defaulting Party’s performance has
not excused the default. Notwithstanding the foregoing, nothing herein shall vest authority in
the City Council to unilaterally change any material provision of the Agreement.
Following the decision of the City Council, any Party dissatisfied with the
decision may seek judicial relief consistent with this Section 12.
12.4 Waiver of Breach. By not filing a challenge to the City’s action to
enact any Development Approval within the period established by applicable law, Developer
shall be deemed to have waived any claim that any condition of approval is improper or that the
action, as approved, constitutes a breach of the provisions of this Agreement.
12.5 Limitations on Defaults. Notwithstanding any provision in this
Agreement to the contrary, a Default by one Owner shall not constitute a Default by an Owner of
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a portion of the Property, which is not the owner of the portion of the Property that is the subject
of the Default (an “Innocent Owner”). Likewise, a Default by an Owner with respect to a Lot (or
group of Lots) it owns or leases shall not constitute a Default by an Innocent Owner, nor shall
the Default by another Owner of a portion of the Property not owned by an Innocent Owner
constitute a Default of the Innocent Owner. Therefore, (i) no Innocent Owner shall have any
liability to the City for, or with respect to, any Default by another Owner or any Default of any
other Owner, (ii) an Innocent Owner shall have no liability to the City for, or with respect to, any
Default by any other Owner, and (iii) the City’s election to terminate this Agreement as a result
of a Default by an Owner shall not result in a termination of this Agreement with respect to
either (x) any portion of the Property not owned by such Owner or (y) those Lots owned or
leased by an Innocent Owner until such time that this Agreement would otherwise terminate in
accordance with its terms.
12.6 Venue. In the event of any judicial action, venue shall be in the
Superior Court of San Bernardino County.
12.7 Effect of Termination on Monetary Obligations. Termination of this
Agreement shall not waive or limit Developer’s monetary obligations to City incurred prior to
the date of termination,
13. ASSIGNMENT.
13.1 General. The Developer shall not transfer this Agreement or any of
the Developer’s rights and obligations hereunder, directly or indirectly, voluntarily or by
operation of law, unless and until a successor party with the necessary financial capacity and
experience and Developer sign and deliver to the City an assignment and assumption agreement,
in the form attached hereto as Exhibit “H,” pursuant to which the successor party shall assume
such obligations. Subject to the City’s written approval, which shall not be unreasonably
conditioned, withheld, or delayed, the transferee’s and Developer’s execution of the assignment
and assumption agreement shall be deemed to release the Developer of liability for performance
under this Agreement of the obligations transferred and specified in such assignment and
assumption agreement and the City shall thereafter look solely to that transferee for compliance
with this Agreement with respect to such obligations and the portion of the Property so
transferred. The City may deny approval of an assignment and assumption agreement if the
Developer fails to provide adequate evidence, as reasonably determined by the City, that the
transferee has adequate financial capacity, development experience, and a record of compliance
with other agreements with cities related to development projects to ensure that the transferee
will comply with the terms of this Development Agreement. Developer shall provide all
information about the proposed assignee to City as requested by City.
13.2 Subsequent Owners. Notwithstanding any provision of this
Agreement to the contrary, City approval shall not be required for the transfer of any portion of
the Property under this Agreement to a subsequent Owner or Developer, provided no such
transfer shall relieve Developer of its obligations hereunder (unless the transferee executes an
assignment and assumption agreement). Following any such transfer or assignment of any of the
rights and interests of the Developer under this Agreement, in accordance with Section 14.1
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above, the exercise, use and enjoyment of such rights and interests shall continue to be subject to
the terms of this Agreement to the same extent as if the assignee or transferee were the
Developer.
13.3 Termination of Agreement With Respect to Individual Lots.
Notwithstanding any provisions of this Agreement to the contrary, as to any single-family
residential Lot which (i) has been finally subdivided, (ii) has had its Certificate of Occupancy
issued, and (iii) is individually (and not in “bulk”) sold or otherwise conveyed to an owner-user,
this Agreement shall terminate as of the date of occurrence of the last of such three items and
thereupon, and without the execution or recordation of any further document or instrument, such
Lot shall be released from and no longer be subject to the provisions of this Agreement. In
addition, as to any Lot or other portion of the Property that is sold or otherwise conveyed to a
public agency, public utility or the HOA, this Agreement shall terminate on the date of
conveyance and thereupon, and without the execution or recordation of any further document or
instrument, such Lot shall be released from and no longer be subject to the provisions of this
Agreement. As to any other Lot not covered by the prior two sentences of this subsection,
including, without limitation, commercial and multi-family residential projects, which (i) has
been finally subdivided; and (ii) has had its Certificate(s) of Occupancy issued, this Agreement
shall terminate on the date the last of the above items happens and thereupon, and without the
execution or recordation of any further document or instrument, such Lot shall be released from
and no longer be subject to the provisions of this Agreement.
14. RELEASES AND INDEMNITIES.
14.1 Third-Party Litigation.
14.1.1 Non-liability of City. As set forth above, the City has
determined that this Agreement is consistent with the General Plan and that the General Plan and
Development Approvals meets all of the legal requirements of State law. The Parties
acknowledge that:
A. In the future there may be challenges to legality, validity and
adequacy of the General Plan, the Development Approvals and/or this Agreement; and
B. If successful, such challenges could delay or prevent the
performance of this Agreement and the Development of the Property.
In addition to the other provisions of this Agreement, including, without
limitation, the provisions of this Section 15, so long as the Developer has diligently defended
against the claim or litigation, as reasonably determined by the City, neither Party shall have
liability under this Agreement for any failure of the City to perform under this Agreement or the
inability of the Developer to Develop the Property as contemplated by the Development Plan or
this Agreement as the result of a judicial determination resulting from a Claim or Litigation that
on the Effective Date, or at any time thereafter, the General Plan, the Land Use Regulations, the
Development Approvals, this Agreement, or portions thereof, are invalid or inadequate or not in
compliance with law.
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14.1.2 Revision of Land Use Restrictions. If, for any reason, the
General Plan, Land Use Regulations, Development Approvals, this Agreement or any part
thereof is hereafter judicially determined, as provided above, to not be in compliance with the
State or Federal Constitution, laws or regulations and, if such noncompliance can be cured by an
appropriate amendment thereof otherwise conforming to the provisions of this Agreement, then
this Agreement shall remain in full force and effect to the extent permitted by law. The
Development Plan, Development Approvals and this Agreement shall be amended, as necessary
and as agreed by the Parties, in order to comply with such judicial decision.
14.1.3 Participation in Litigation: Indemnity. To the full extent
permitted by law, the Developer shall indemnify the City and its City Council, commissions,
officers, agents and employees (each, an “Agent”) and will hold and save them and each of them
harmless from any and all Claims or Litigation (including but not limited to attorneys’ fees and
costs) against the City and/or Agent for any such Claims or Litigation and shall be responsible
for any judgment arising therefrom. The City shall provide the Developer with notice of the
pendency of such action and shall request that the Developer defend such action. The Developer
shall reimburse the City for any necessary legal cost incurred by City including, without
limitation, reasonable costs incurred by the City Attorney to defend the City in the litigation.
Alternatively, the City may select legal counsel to defend it in the litigation and Developer shall
pay all reasonable fees and costs associated with the City’s defense. The Developer shall be
liable for any costs incurred by the City up to the date of any settlement and any necessary costs
of implementing or enforcing the settlement, but shall have no further obligation to the City
beyond the payment of those costs. In the event of an appeal, or a settlement offer, the Parties
shall confer in good faith as to how to proceed.
14.2 Hold Harmless: Developer’s Construction and Other Activities. The
Developer shall indemnify, defend, save and hold the City and its Agents harmless from any and
all Claims and Litigation which may arise, directly or indirectly, from the Developer’s or the
Developer’s agents, contractors, subcontractors, agents, or employees’ operations under this
Agreement, whether such operations be by the Developer or by any of the Developer’s agents,
contractors or subcontractors or by any one or more persons directly or indirectly employed by
or acting as agent for the Developer or any of the Developer’s agents, contractors or
subcontractors. Nothing herein is intended to make the Developer liable for the acts of the City’s
officers, employees, agents, contractors of subcontractors.
14.3 Survival of Indemnity Obligations. All indemnity provisions set forth
in this Agreement shall survive termination of this Agreement for any reason other than the
City’s Default.
15. EFFECT OF AGREEMENT ON TITLE.
15.1 Covenant Run with the Land. Subject to the provisions of Sections 14
and 18 and pursuant to the Development Agreement Statute (§ 65868.5):
A. All of the provisions, agreements, rights, powers, standards, terms,
covenants and obligations contained in this Agreement shall be binding upon the parties and their
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respective heirs, successors (by merger, consolidation, or otherwise) and assigns, devisees,
administrators, representatives, lessees, and all other persons acquiring any rights or interests in
the Property, or any portion thereof, whether by operation of laws or in any manner whatsoever
and shall inure to the benefit of the parties and their respective heirs, successors (by merger,
consolidation or otherwise) and assigns;
B. All of the provisions of this Agreement shall be enforceable as
equitable servitudes and constitute covenants running with the land pursuant to applicable law;
and
C. Each covenant to do or refrain from doing some act on the
Property hereunder (i) is for the benefit of and is a burden upon every portion of the Property, (ii)
runs with such lands, and (iii) is binding upon each Party and each successive Owner during its
ownership of such properties or any portion thereof, and each person having any interest therein
derived in any manner through any Owner of such lands, or any portion thereof, and each other
person succeeding to an interest in such lands.
16. CITY OFFICERS AND EMPLOYEES: NON-DISCRIMINATION.
16.1 Non-liability of City Officers and Employees. No official, agent,
contractor, or employee of the City shall be personally liable to the Developer, or any successor
in interest, in the event of any default or breach by the City.
16.2 Conflict of Interest. No officer or employee of the City shall have any
financial interest, direct or indirect, in this Agreement nor shall any such officer or employee
participate in any decision relating to this Agreement which affects the financial interest of any
corporation, partnership or association in which he or she is, directly or indirectly, interested, in
violation of any state statute or regulation.
17. MORTGAGEE PROTECTION.
17.1 Developer’s Breach Not Defeat Mortgage Lien. The Developer’s
breach of any of the covenants or restrictions contained in this Agreement shall not defeat or
render void the lien of any Mortgage made in good faith and for value but, unless otherwise
provided herein, the terms, conditions, covenants, restrictions, easements, and reservations of
this Agreement shall be binding and effective against the holder of any such Mortgage whose
interest is acquired by foreclosure, trustee’s sale or otherwise.
17.2 Holder Not Obligated to Construct or Complete Improvements. The
holder of any Mortgage shall in no way be obligated by the provisions of this Agreement to
construct or complete the improvements or to guarantee such construction or completion.
Nothing in this Agreement shall be deemed or construed to permit or authorize any such holder
to devote the Project or any portion thereof to any uses, or to construct any improvements
thereon, other than those uses or improvements provided for or authorized by this Agreement.
17.3 Notice of Default to Mortgagee. Whenever the City shall deliver any
notice or demand to the Developer with respect to any breach or default by the Developer
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hereunder, the City shall at the same time deliver a copy of such notice or demand to each holder
of record of any Mortgage who has previously made a written request to the City therefor, or to
the representative of such lender as may be identified in such a written request by the lender. No
notice of default shall be effective as to the holder unless such notice is given.
17.4 Right to Cure. Each holder of a Mortgage (insofar as the rights of City
are concerned) shall have the right, at its option, within ninety (90) days after the receipt of the
notice, one hundred twenty (120) days after the Developer’s cure rights have expired, or ninety
(90) days after it has acquired possession of the Property, whichever is later, to:
A. Obtain possession, if necessary, and to commence and diligently
pursue the cure until the same is completed, and
B. Add the cost of said cure to the security interest debt and the lien
or obligation on its security interest;
provided that, in the case of a Default which cannot with diligence be remedied or cured within
such cure periods referenced above in this Section 18.4, such holder shall have additional time as
reasonably necessary to remedy or cure such Default.
In the event there is more than one such Mortgage holder, the right to cure or
remedy a breach or Default of the Developer under this Section shall be exercised by the holder
first in priority or as the holders may otherwise agree among themselves, but there shall be only
one exercise of such right to cure and remedy a breach or Default of the Developer under this
Section.
No Mortgage holder shall undertake or continue the construction or completion of
the improvements (beyond the extent necessary to preserve or protect the improvements or
construction already made) without first having expressly assumed the Developer’s obligations
to the City by written agreement satisfactory to City with respect to the Project or any portion
thereof in which the holder has an interest. The Mortgage holder must agree to complete, in the
manner required by this Agreement, the improvements to which the lien or title of such holder
relates, and submit evidence satisfactory to the City that it has the qualifications and financial
responsibility necessary to perform such obligations.
18. MISCELLANEOUS.
18.1 Estoppel Certificates. Either Party (or a Mortgagee under Section 18)
may at any time deliver written notice to the other Party requesting an Estoppel Certificate
addressing:
A. whether the Agreement is in full force and effect and is a binding
obligation of the Parties;
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B. whether the Agreement has not been amended or modified either
orally or in writing or, if so amended, identifying the amendments;
C. whether there are no existing defaults under the Agreement to the
actual knowledge of the party signing the Estoppel Certificate; and
D. such other matters as may reasonably be requested.
A Party receiving a request for an Estoppel Certificate shall provide a signed certificate to the
requesting Party within thirty (30) days after receipt of the request. Both the City Manager and
the City Attorney shall be required to sign Estoppel Certificates on behalf of the City. An
Estoppel Certificate may be relied on by assignees and Mortgagees. The Estoppel Certificate
shall be substantially in the same form as Exhibit “C.”
18.2 Permitted Delays and Adverse Economic Events..
18.2.1 Performance by a party of its obligations hereunder shall be excused
during any period of "Permitted Delay." Permitted Delay shall mean delay beyond the
reasonable control of the Party claiming the delay (specifically excluding a party's financial
inability to perform), including, but not limited to: (a) acts of God, including without limitation
earthquakes, floods, fire, natural disasters, weather conditions that are abnormal for the period of
time and could not have been reasonably anticipated, pandemics, epidemics, and other natural
calamities, (b) civil commotion; (c) riots or terrorist acts; (d) strikes, picketing or other labor
disputes; (e) severe shortages of materials or supplies critical to the construction of the Project;
(f) the discovery of underground or other unknown conditions which delay any work; (g) damage
to work in progress by reason of fire, floods or other casualties; (h) failure, delay or inability of
the other party to act; (i) moratoria or other delays caused by restrictions imposed or mandated
by, or other actions or inactions of governmental entities, and (j) legal or administrative actions
or inactions related to development of the Property. A Permitted Delay for any cause will be
deemed granted if written notice by the party claiming such delay is timely sent to the other party
setting forth the relevant facts and circumstances and the estimated time of delay (a “Delay
Notice”). Within ten (10) days from receipt of a Delay Notice, the parties shall meet and confer
in good faith to determine the agreed period of delay and any actions to be taken in response
thereto, which shall be documented by the parties in writing in an Operating Memorandum.
18.2.2: In the event of a significant adverse event concerning the financial
markets or residential markets that renders performance under this Agreement financially
infeasible (an “Adverse Economic Event”), Developer shall promptly notify the City of the
specific facts and circumstances that render performance infeasible (“Financial Infesibility
Notice”). Within ten (10) days from receipt of a Financial Infeasibility Notice, the parties shall
meet and confer in good faith to determine whether performance, or any portion thereof, is truly
infeasible, and if so, the agreed period of delay and any actions to be taken in response thereto,
which shall be documented by the parties in writing in an Operating Memorandum. If the parties
cannot agree on whether there is an Adverse Economic Event or the amount of time of permitted
delay, the parties agree to participate in non-binding mediation before either party may pursue
any remediese under Section 13 of this Agreement.
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18.3 Interpretation.
18.3.1 Construction of Development Agreement. The language of this
Agreement shall be construed as a whole and given its fair meaning. The captions of the sections
and subsections are for convenience only and shall not influence construction. This Agreement
shall be governed by the laws of the State of California. This Agreement shall not be deemed to
constitute an illegal surrender or abrogation of the City’s governmental powers over the
Property.
18.3.2 Entire Agreement. This Agreement constitutes the entire
agreement between the Parties with respect to the subject matter of this Agreement and this
Agreement supersedes all previous negotiations, discussions, memoranda of understanding, and
agreements between the Parties. No parol evidence of any prior or other agreement shall be
permitted to contradict or vary the terms of this Agreement.
18.3.3 Recitals. The recitals in this Agreement constitute part of this
Agreement and each Party shall be entitled to rely on the truth and accuracy of each recital as an
inducement to enter into this Agreement.
18.3.4 Mutual Covenants. The covenants contained herein are mutual
covenants and also constitute conditions to the concurrent or subsequent performance by the
Party benefitted thereby of the covenants to be performed hereunder by such benefitted Party.
18.4 Severability. If any provision of this Agreement is adjudged invalid,
void or unenforceable, that provision shall not affect, impair, or invalidate any other provision,
unless such judgment affects a material part of this Agreement in which case the parties shall
comply with the procedures set forth in Section 15.1.2 above.
18.5 No Third Party Beneficiaries. The only Parties to this Agreement are
the Developer and the City and their successor and assigns. There are no third party beneficiaries
and this Agreement is not intended, and shall not be construed, to benefit or be enforceable by
any other person whatsoever.
18.6 Notice.
18.6.1 To Developer. Any notice required or permitted to be given by
the City to the Developer under this Agreement shall be in writing and delivered personally to
the Developer as set forth below or mailed, with postage fully prepaid, registered or certified
mail, return receipt requested, addressed as follows:
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Lewis Land Developers, LLC
c/o Lewis Operating Corp.
1156 N. Mountain Avenue
Upland, CA 91786
Attention: Erren O’Leary
With a copy to:
James D. Vaughn,, Esq.
Stowell, Zeilenga, Ruth, Vaughn & Treiger, LLP
4580 E. Thousand Oaks Blvd., Suite 190
Westlake Village, CA 91362
or such other address as the Developer may designate in writing to the City.
18.6.2 To the City. Any notice required or permitted to be given by the
Developer to the City under this Agreement shall be in writing and delivered personally to as set
forth below or mailed with postage fully prepaid, registered or certified mail, return receipt
requested, addressed as follows:
City of Grand Terrace
22795 Barton Road
Grand Terrace, CA 92346
Attention: City Manager
Aleshire & Wynder
1 Park Plaza Boulevard
Suite 1000
Irvine, CA 92614
Attn: Adrian Guerra
or such other address as the City may designate in writing to the Developer.
Notices provided pursuant to this Section shall be deemed received at the date of delivery as
shown on the affidavit of personal service or the Postal Service receipt.
18.7 Relationship of Parties. It is specifically understood and
acknowledged by the Parties that the Project is a private 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. The only relationship between the City and the Developer is that of a government
entity regulating the development of private property and the owner of such private property.
18.8 Attorney’s Fees. If either Party to this Agreement is required to
initiate or defend litigation against the other Party, the prevailing party in such action or
proceeding, in addition to any other relief which may be granted, whether legal or equitable,
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shall be entitled to reasonable attorney’s fees. Attorney’s fees shall include attorney’s fees on
any appeal, and, in addition, a Party entitled to attorney’s fees shall be entitled to all other
reasonable costs for investigating such action, taking depositions and discovery and all other
necessary costs the court allows which are incurred in such litigation. All such fees shall be
deemed to have accrued on commencement of such action and shall be enforceable whether or
not such action is prosecuted to a final judgment.
18.9 Further Actions and Instruments. Each of the Parties shall cooperate
with and provide reasonable assistance to the other to the extent necessary to implement this
Agreement. Upon the request of either Party at any time, the other Party shall promptly execute,
with acknowledgment or affidavit if reasonably required, and file or record such required
instruments and writings and take any actions as may be reasonably necessary to implement this
Agreement or to evidence or consummate the transactions contemplated by this Agreement.
18.10 Time of Essence. Time is of the essence in:
A. the performance of the provisions of this Agreement as to which
time is an element; and
B. the resolution of any dispute which may arise concerning the
obligations of the Developer and the City as set forth in this Agreement.
18.11 Waiver. Failure by a Party to insist upon the strict performance of any
of the provisions of this Agreement by the other Party, or the failure by a Party to exercise its
rights upon the default of the other Party, shall not constitute a waiver of such Party’s right to
insist and demand strict compliance by the other Party with the terms of this Agreement
thereafter.
18.12 Execution.
18.12.1 Counterparts. This Agreement may be executed by the
Parties in counterparts which counterparts shall be construed together and have the same effect
as if all of the Parties had executed the same instrument.
18.12.2 Recording. The City Clerk shall cause a copy of this
Agreement to be executed by the City and recorded in the Official Records of San Bernardino
County no later than ten (10) days after the Effective Date (Government Code § 65868.5). The
recordation of this Agreement is deemed a ministerial act and the failure of the City to record the
Agreement as required by this Section and the Development Agreement Statute does not make
this Agreement void or ineffective.
18.12.3 Authority to Execute. The persons executing this
Agreement on behalf of the Parties hereto warrant that (i) such Party is duly organized and
existing, (ii) they are duly authorized to sign and deliver this Agreement on behalf of the Party he
or she represents, (iii) by so executing this Agreement, such Party is formally bound to the
provisions of this Agreement, (iv) the entering into of this Agreement does not violate any
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provision of any other agreement to which the Party is bound, and (v) there is no litigation or
legal proceeding which would prevent such Party from entering into this Agreement.
18.13 Operating Memoranda. The provisions of this Agreement require a
close degree of cooperation between the City and Developer. The anticipated refinements to the
Project may demonstrate that clarifications to this Agreement and the Development Approvals
are appropriate with respect to the implementation of this Agreement and the Development
Approvals. If, when, and as it becomes necessary or appropriate to take implementing actions or
make such changes, adjustments or clarifications the Parties may effectuate such actions,
changes, adjustments or clarifications through an operating memorandum (“Operating
Memorandum”) approved by the Parties in writing which references this Section 19.13. Such
Operating Memorandum shall not require public notices and hearings or an amendment to this
Agreement unless it is required by Section 10 above. The City Manager shall be authorized,
after consultation with and approval of Developer, to determine whether a requested adjustment,
clarification or implementing action (i) may be effectuated pursuant to this Section 19.13 and is
consistent with the intent and purpose of this Agreement and the Development Approvals or (ii)
is of the type that would constitute an amendment to this Agreement and thus would require
compliance with the provisions of Section 10 above. The authority to enter into such Operating
Memorandum is hereby delegated to the Director and the Director is hereby authorized to
execute any Operating Memorandum hereunder without further City Council action.
[SIGNATURES ON THE NEXT PAGE]
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IN WITNESS WHEREOF, the City and the Developer have executed this
Agreement on the date first above written.
CITY OF GRAND TERRACE
By:
Name: Bill Hussey
Title: Mayor
ATTEST
City Clerk
APPROVED AS TO FORM
Adrian Guerra, City Attorney
“DEVELOPER”
Lewis Land Developers, LLC, a Delaware
limited liability company
By: Lewis Operating Corp., a California
corporation,
Its Manager
By:
Name:
Title:
By:
Name:
Title:
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A notary public or other officer completing this certificate verifies only the identity of the individual who signed the
document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document.
STATE OF CALIFORNIA )
) Ss
COUNTY OF )
On ____________________, before me, ____________________________, a Notary Public,
personally appeared _______________________________, who proved to me on the basis of
satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within
instrument, and acknowledged to me that he/she/they executed the same in his/her/their
authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or
the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the
foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Notary Public
A notary public or other officer completing this certificate verifies only the identity of the individual who signed the
document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document.
STATE OF CALIFORNIA )
) ss
COUNTY OF _____________________ )
On ____________________, before me, ____________________________, a Notary Public,
personally appeared _______________________________, who proved to me on the basis of
satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within
instrument, and acknowledged to me that he/she/they executed the same in his/her/their
authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or
the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the
foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Notary Public
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EXHIBIT “A”
MAP AND LEGAL DESCRIPTION OF PROPERTY
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EXHIBIT “B”
EXISTING DEVELOPMENT APPROVALS
General Plan Amendment No. _____ Res. No.
Zone Change No. _____ Ord. No.
Gateway at Grand Terrace Specific Plan No. _____ Ord. No.
Development Agreement No. _____ Ord. No.
[Tentative Tract Map No. _____] Res. No.
Res. No.
Final Environmental Impact Mitigation Monitoring Program Res. No.
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EXHIBIT “C”
INFRASTRUCTURE PLAN
I. DESIGN OF IMPROVEMENTS
1. City Review Process: City and Developer agree that there is substantial mutual
benefit to both Parties as a result of the Project.
a. Developer will reimburse City for staff and consultant costs reasonably incurred
with review of entitlement applications and plans. City will endeavor to invoice
Developer monthly, with invoices identifying employee/consultant, hours and tasks
billed.
b. As time is of the essence, City agrees to expedite all application and plan reviews.
City agrees to employ or contract with qualified consultants to ensure expedited
review schedules.
1. Developer will prepare the plans and specifications as follows:
a. Storm Drain Improvement Plans
i. Phase I: Van Buren to Michigan Intersection
ii. Phase II: Stub to Pico cul-de-sac
b. Basin Improvement Plans
c. Sewer Improvement Plans
d. Water Improvement Plans
e. Street Improvement Plans
i. Including Grading/Improvements/Traffic Signals/Striping
ii. Limits: Main Street to existing termination point of Commerce Way
iii. Assume Interim (Phase I) and Ultimate (Phase II)
f. Dry Utility Plans – Undergrounding and Line Extensions
2. Specifications Contracting:
a. Developer will prepare Contract Specifications and Bid Documents for all
facilities eligible for public funding such as DIF Credits/Reimbursements,
Measure I, CFD, and other Special Funding.
b. City will review specifications and documents and assist Developer in posting
and opening of the public bids in accordance with City standards.
c. Developer will retain a qualified construction management consultant to
review and award the bid, manage the contract, review certified payroll,
process change orders, etc, in coordination with the City.
3. ROW Acquisition:
a. Developer is responsible for dedicating any ROW or easements as required
for the construction of the abovementioned improvements within Developer
owned property.
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EXHIBIT “D”
SOURCE OF FUNDING FOR CERTAIN PROPOSED PROJECT FACILITIES
Funding of Improvements – In Order of Priority:
1) Full width (4 lanes) Taylor/Commerce Street Improvements from Main Street to
northerly boundary of the Property (“Taylor/Commerce Improvements”) [Estimated Cost - $3.6
million]:
a. Project Condor Bess In-Lieu of Construction Agreement funds (“Condor
Contribution”) will be contributed by City.
b. Developer Contribution and City Reimbursement:
(i) Developer shall contribute 40% of the remaining cost of
the Taylor/Commerce Improvements after accounting for
the Condor Contribution and advance the remaining 60%
(60% advance). The City shall reimburse Developer’s 60%
Advance subject to paragraphs (ii) and (iii) below.
(ii) City to reimburse Developer 60%, after accounting for the
Condor Contribution, of the designated arterial costs,
including plans, specifications, engineering, construction
management, and physical construction costs.
(iii) City to reimburse Developer’s 60% Advance pursuant to
the following schedule: 25% at issuance of 1st certificate of
occupancy, 25% at issuance of 50th certificate of
occupancy, 25% at issuance of 150th certificate of
occupancy and 25% at issuance of 250th certificate of
occupancy.
c. Developer’s 40% contribution is eligible for DIF credit and is also
considered an eligible facility for Project CFD financing.
d. Estimated DIF credit: Up to $1,829,952.
e. Excess Developer Contribution: $0.
2) Storm Drain Improvements [Estimated Cost - $4.5 million]:
a. Developer to fund 100% of storm drain improvements.
b. Developer funding eligible for DIF credit and is also considered an eligible facility
for Project CFD financing. City agrees to reimburse Developer with DIF collected
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from other benefitted properties to the extent available.
c. Estimated DIF credit: $834,028.
d. Excess Developer Contribution: $3,665,972.
3) Public Park [Estimated Cost - $6 million]:
a. Developer to fund 100% of the public park improvements.
b. Developer funding eligible for DIF credit and is also considered an eligible facility
for Project CFD financing. City agrees to reimburse Developer with DIF collected
from other benefitted properties to the extent available.
c. Estimated DIF credit: $3,281,898.
d. Excess Developer Contribution: $2,718,102.
Total Developer Costs In Excess of Fair Share/DIF: $6,384,074
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EXHIBIT “E”
DEVELOPMENT IMPACT FEES PER UNIT/CREDITS
Fee Designation SFD MFA Credit?
Storm Drainage $2,234 $429 Yes
General Public
Facilities Fund
$1,102 $1,102 No
Public Use $674 $422 No
Parkland $7,241 $4,534 Yes
Traffic Signal
Improvements
$239 $146 Yes
Arterial
Improvements
$4,064 $2,480 Yes
Operational
Improvement
Fees
$174 $106 Yes
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EXHIBIT “F”
ADDITIONAL AGREEMENTS CONCERNING DEVELOPMENT
In addition to the other terms and conditions concerning the Project, the City shall
accommodate and expedite the Project as follows:
1.0 CONSTRUCTION CONDITIONS.
1.1 Provision of Utility Connections. Subject to the approval of the utility
providers and City permit requirements, the City shall permit, at the Developer’s expense, any
necessary temporary and permanent utility connections requested by the Developer for power,
water service and sewer service prior to recordation of each final Subdivision Map, subject to the
approval of the Fire Department.
1.2 Allowance of Transformers. The City shall allow the setting of
transformers without requiring adjacent streets to be fully paved, subject to the approval of the
electrical utility provider, City permit requirements and the approval of the Fire Department. It
is anticipated that 6’ feet of curb and gutter will be placed adjacent to the transformer to ensure
correct elevation of the transformer pad. In the event that the location or elevation change, or the
curb and gutter damaged, the Developer shall incur the full costs of relocation of both the curb
and gutter and the transformer, and the full costs to repairs or reconstruction of the curb and
gutter, if needed as determined by the City Engineer.
1.3 Temporary Water Pipes. Temporary above ground pipes for construction
water and temporary fire hydrants, as approved by the Building Official and Fire Marshall, will
be acceptable for model and production homes prior to the first certificate of occupancy in the
construction phase being developed. No certificate of occupancy will be issued until said
temporary facilities are removed and permanent facilities in place as approved by the Building
Official and Fire Marshall.
2.0 MAINTENANCE.
2.1 Maintenance of Construction Activities. The Developer shall contract
directly for all work required for the maintenance of construction related activities, including but
not limited to recycling of construction materials, erosion control, temporary fence installation,
and temporary power installation. The selection and retention of the contractor, subcontractor or
other person or entity to do such work shall be made by the Developer in its sole and absolute
discretion. Trash removal will be coordinated directly with City franchisee. Contractor,
subcontractor, person or entity conducting business within the City shall meet applicable state
and City licensing requirements, and City permit requirements including bonding and insurance
requirements.
3.0 STREETS.
3.1 Timing of Street Paving. The Developer shall be allowed to begin
construction of model and production homes without first paving streets unless the paved streets
are needed to serve other functions such as providing access to critical public infrastructures or
areas already developed, and providing an essential Best Management Practice for erosion and
sediment control for large graded areas located upstream, or the Fire Department indicates the
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paving is necessary for purposes of public health and safety. Under general situation, paved
streets shall be required as a condition for the issuance of the Certificate of Occupancy for the
first production home in each construction phase. The Developer shall install all-weather access
for construction and emergency personnel.
4.0 DEVELOPMENT CONDITIONS.
4.1 Rear Residential Slopes. The Developer shall stabilize according to the
City Grading and Landscape Ordinance and requirements of the City Engineer and the City
Planner the rear slope of all residential Lots prior to issuance of a Certificate of Occupancy.
4.2 Use of Joint Trenches. If permitted by the applicable utility provider, the
City shall allow the Developer, subject to City permit requirements, to utilize joint trenches if it
deems it necessary for Internet capabilities and/or telecommunication purposes.
5.0 PERMITTING AND ACCEPTANCE OF IMPROVEMENTS.
5.1 Fire Sprinkler Inspections. The City’s Fire Marshall shall be responsible
for enforcing the then applicable provisions of the California Fire Code, and the California
Building Standards Codes.
5.2 Building Permit Refunds. If a Building Permit has expired without
construction having started on the structure for which the Building Permit was issued, the
Developer shall be entitled to a refund of the building permit fee less the actual cost to the City
to issue the Building Permit, as determined by the City. No refund will be provided if the
request for the refund has not been provided to the City within 180 days of the Building Permit’s
expiration.
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EXHIBIT “G”
FINANCING PLAN
This Financing Plan sets forth the basic terms and conditions pursuant to which
City and Developer will cooperate to establish a CFD pursuant to the CFD Act to finance the
Eligible Facilities. Capitalized terms not otherwise defined in this Financing Plan shall be
defined as provided in the Development Agreement.
1. Goals and Policies for Financing. The principal objectives of this
Financing Plan are to:
a. Provide City and Developer reasonable certainty that the CFD will
be established in accordance with the Goals and Policies and this Financing Plan.
b. Provide basic parameters for the levy of the Special Tax (defined
below) within the CFD to pay directly for Eligible Facilities and to secure the issuance of bonds
of the CFD secured by and payable from the Special Tax in order to finance the Eligible
Facilities (“Bonds”).
c. Provide basic parameters for the issuance of Bonds by the CFD.
2. Formation. City shall initiate proceedings to establish the CFD, upon
Developer’s petition pursuant to the CFD Act and submittal of City’s standard application form
and receipt of an advance from Developer in an amount determined by City to pay for City’s
estimated costs to be incurred in undertaking the proceedings to establish the CFD (“Formation
Proceeding Costs”). City agrees that all such advances for Formation Proceedings Costs and the
reasonable financial consultant, legal and engineering costs incurred by the Developer in
connection with such proceeding shall be eligible for reimbursement out of the first available
proceeds of Surplus Special Taxes (defined below) and Bonds of the CFD (“CFD Proceeds”).
The exact terms and conditions for the advance of funds by Developer and the reimbursement of
such advances shall be memorialized in a separate agreement between City and Developer. City
agrees to use its best efforts to complete the proceedings to form the CFD and record the notice
of special tax lien for the CFD within 180 days after City’s receipt of Developer’s complete
application and deposit.
3. Boundaries. The CFD boundary shall encompass the [for-sale residential
portion of the Project].
4. Eligible Public Facilities and Discrete Components. The CFD may be
authorized to finance the Eligible Facilities specified by Developer in the Acquisition
Agreement, which may include the following:
a. public streets and other related improvements within the public
right of way
b. water facilities
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c. storm drain facilities
d. sewer facilities
e. public parks, open space and landscaping
f. gas, electrical, television and telephone facilities to the extent
reasonable
g. All or a portion of the applicable DIFs
The costs of any Eligible Facility to be constructed by Developer that are eligible to be financed
with CFD Proceeds (“Actual Costs”) shall include the following:
(i) The actual hard costs for the construction or the value of the
Eligible Facility, including labor, materials and equipment costs;
(ii) The costs of grading required for the Eligible Facility;
(iii) The costs incurred in designing, engineering and preparing the
plans and specifications for the Eligible Facility;
(iv) The costs of environmental evaluation and mitigation of or relating
to the Eligible Facility;
(v) Fees paid to governmental agencies for, and costs incurred in
connection with, obtaining permits, licenses or other governmental approvals for the Eligible
Facility;
(vi) Costs of construction administration and supervision;
(vii) Professional costs associated with the Eligible Facility, such as
engineering, legal, accounting, inspection, construction staking, materials and testing and similar
professional services; and
(viii) Costs of payment, performance and/or maintenance bonds and
insurance costs directly related to the construction of the Eligible Facility.
(ix) The actual cost or fair market value of interests in real property
required for the Eligible Facility.
(x) Any other costs permitted by law directly related to the Eligible
Facility
The Eligible Facilities constructed by Developer, and for which Developer elects
to submit payment requests, shall be bid, contracted for and constructed in accordance with the
Acquisition Agreement to be entered into between City and Developer at the time of formation
of the CFD. The Acquisition Agreement shall provide additional detail, consistent with the
provisions of the Goals and Polices and this Development Agreement, with respect to the
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financing of DIFs through the CFD and the acquisition and construction of the Eligible Facilities,
including a more detailed description of the specific Eligible Facilities that will be eligible to be
financed through the CFD and discrete components of each Eligible Facility that may be
reimbursed prior to the completion of the entire Eligible Facility. The CFD financing of the
acquisition of an Eligible Facility constructed by Developer that is included in a City DIF
program and required by the Project conditions of approval, shall not preclude the Developer’s
receipt of corresponding DIF credit.
5. Financing Parameters. The CFD shall be authorized to levy Special Taxes
and issue Bonds in one or more series to finance the Eligible Facilities in accordance with the
basic parameters set forth below:
(a) A precondition to the issuance of Bonds shall be that the value of
the real property subject to Special Taxes required to repay the Bonds shall be at least three times
the amount of the Bonds and any other governmentally-imposed land-secured debt (excluding
any proceeds of the Bonds to be deposited in an escrow fund) (“Minimum Value-to-Debt
Ratio”). In circumstances where the principal amount of a series of Bonds proposed to be issued
causes such series of Bonds to fail to meet the Minimum Value-to-Debt Ratio, a portion of such
Bonds shall be deposited in an escrow fund such that the remaining amount of the Bonds will
satisfy the maximum value to-debt ratio. Funds shall be eligible to be released from such escrow
fund only if and to the extent that the value of the taxable property subject to the levy of Special
Taxes securing the Bonds compared to the principal amount of the Bonds not included in the
escrow fund following such release shall meet the Minimum Value-to-Debt Ratio.
(b) Each series of Bonds shall have a term of at least thirty (30) years.
(c) Each series of Bonds may include up to twenty-four (24) months
of capitalized interest or such other lesser amount as may be requested by Developer.
(d) Each series of Bonds to be issued shall be sized based upon the
estimated annual Special Tax revenues from the CFD at build-out being equal to one hundred ten
percent (110%) of (i) annual debt service, plus (ii) priority annual administrative expenses.
Priority annual administrative expenses to be funded from Special Taxes, as a first priority for
use of such Special Taxes, shall not exceed $25,000 (the “Priority Annual Administrative
Expense Requirement”).
(e) The City may fund from the proceeds of each series of Bonds an
amount representing all administrative expenses reasonably expected to be incurred by the City
during the first twelve (12) months following the date of issuance of such bonds.
(f) The total effective tax rate within the CFD applicable to any
residential parcel on which a for-sale residential dwelling has or is to be constructed, taking into
account all ad valorem property taxes, voter-approved ad valorem property taxes in excess of one
percent (1%) of assessed value, the annual special taxes of existing community facilities districts
and any other community facilities districts under consideration and reasonably expected to be
established, the annual assessments of existing assessment districts and any other assessment
districts under consideration and reasonably expected to be established (but excluding
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assessments for maintenance), and the Special Taxes, shall not exceed two percent (2.00%) of
the projected initial sales price of the residential dwelling unit and such parcel, as estimated at
the time of formation of the CFD (in accordance with Section 5.2, Procedures for Formation).
(g) Special Taxes shall be levied on Developed Property within the
CFD prior to the issuance of Bonds at the maximum assigned special tax rate to finance the
Eligible Facilities. For purposes of the CFD, “Developed Property” means a parcel for which a
building permit has been issued and “Undeveloped Property” shall mean all other taxable
property. Special Taxes may be levied on Undeveloped Property within the CFD only after the
issuance of Bonds and only to the extent the annual debt service on the Bonds, administrative
expenses and the reserve fund replenishment amount is not able to be paid in full from
Developed Property Special Taxes levied and collected within the CFD. For the purposes of this
Financing Plan “Surplus Special Taxes” shall mean (i) Special Taxes levied on Developed
Property within the CFD prior to the issuance of Bonds and collected by the CFD, less the
amount required to pay annual CFD administrative expenses, and (ii) Special Taxes levied on
Developed Property within such Improvement Area at the maximum special tax rate after the
issuance of Bonds and collected each fiscal year in excess of the amount required (w) to pay
principal and interest on the Bonds, (x) to pay all administrative expenses related to such Bonds,
(y) pay for reasonably anticipated delinquent special taxes within the CFD and (z) to replenish
the reserve fund for such Bonds to the applicable reserve requirement.
(h) Special Taxes on Developed Property shall be levied by the CFD
in each fiscal year at the maximum assigned special tax rate until the earlier of (i) Developer’s
submittal of its final payment request for Eligible Facilities and payment in full for all amounts
approved by the City for the Eligible Facilities or (ii) the payment in full of all Bonds. Surplus
Special Taxes collected by the CFD shall be deemed CFD Proceeds and shall be disbursed to
reimburse Developer any amounts approved pursuant to payment requests submitted for the
Eligible Facilities.
(i) All commercial property, affordable housing units, age-qualified
housing units and rental housing units may, at Developer’s option, be exempted from the Special
Taxes.
(j) Full or partial prepayment of the Special Taxes shall be permitted.
(k) At Developer’s election at the time of submittal of its written
request and City’s standard application form pursuant to Section 2 above, the City shall allow the
Special Taxes to escalate by two percent (2%) per year, in which case debt service on the Bonds
shall escalate at the same average rate per year.
(l) The timing of the issuance and sale of each series of the Bonds, the
terms and conditions upon which such Bonds shall be issued and sold, the method of sale of such
Bonds and the pricing thereof shall be reasonably determined by the City and shall conform to
the Goals and Policies, this Financing Plan and the Acquisition Agreement. The sale of each
series of the Bonds shall be subject to receipt by the City of a competitively bid or negotiated
bond purchase agreement which is acceptable to the City.
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(m) The rate and method of apportionment of special taxes for the CFD
shall include provisions to allow for administrative reductions in the maximum Special Taxes,
prior to the issuance of the first series of Bonds, with the consent of the Developer. The
reductions permitted pursuant to this paragraph shall be reflected in an amended Notice of
Special Tax Lien which the City shall cause to be recorded.
6. Modifications. In order to address economic circumstances, Project
revisions, bond underwriting criteria or other factors consistent with the Project’s development
plan and City and Developer’s objectives with respect to the Project, the CFD and the Proposed
Public Facilities; (i) the provisions of this Financing Plan may be modified at an administrative
level with the consent of both the City Manager and Developer, and (ii) City shall cooperate with
Developer to amend CFD boundaries, special tax rates, and other relevant aspects of the CFD.
City agrees and acknowledges that in connection with any such amendment it shall not impose or
otherwise require any additional infrastructure, development fee or other requirements or
conditions with respect to the Project or CFD; provided, however, the City may require
Developer to advance funds to pay all reasonable costs incurred or to be incurred by the City in
considering any such amendment.
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EXHIBIT “H”
ESTOPPEL CERTIFICATE
Date Requested: ______________________
Date of Certificate: ______________________
On __________________, 202__, the City of Grand Terrace (“City”) approved the Development
Agreement between Lewis Land Developers, LLC, a Delaware limited liability company and the
City of Grand Terrace (the “Development Agreement”).
City certifies that, to the best of its knowledge, as of the Date of Certificate set forth above:
[CHECK WHERE APPLICABLE]
____ 1. The Development Agreement remains binding and effective.
____ 2. The Development has not been amended.
____ 3. The Development Agreement has been amended in the following aspects as
recorded in the public records:
___________________________________________________________
___________________________________________________________
___________________________________________________________.
____ 4. To the best of our knowledge, neither Developer nor any of its approved
successors is inefault under the Development Agreement.
____ 5. The conditions exist which with notice would constitute defaults under the
Development Agreement:
___________________________________________________________
___________________________________________________________
___________________________________________________________.
____ 6. The Development Agreement: ????
___________________________________________________________
___________________________________________________________
___________________________________________________________.
This Estoppel Certificate may be relied upon by a transferee or mortgagee of any
interest in the property which is the subject of the Development Agreement.
CITY OF GRAND TERRACE
By:
Name:
City Manager
01247.0025/987544.5 6/12/2024 I-1
EXHIBIT “I”
FORM OF ASSIGNMENT AND ASSUMPTION AGREEMENT
Pursuant to the Development Agreement between the CITY OF GRAND
TERRACE (“City”) and LEWIS LAND DEVELOPERS, LLC, a Delaware limited
liability company (“Assignor”), dated ___________, 2021 (the “Agreement”), which
Agreement is hereby incorporated herein by this reference, and for good and valuable
consideration, receipt of which is hereby acknowledged, the undersigned hereby agree as
follows:
1. The assignment and assumption provided for under this Assignment and
Assumption Agreement (“Assignment”) is made together with the sale, transfer or
assignment of all or a part of the property subject to the Agreement. The property sold,
transferred or assigned together with this Assignment is described in Attachment “1”
attached hereto and incorporated herein by this reference (the “Subject Property”).
2. Assignor hereby grants, sells, transfers, conveys, assigns and delegates to
_______________________ (“Assignee”), all of Assignor’s rights, title, interest,
benefits, privileges, duties and obligations arising under or from the Agreement with
respect to the Subject Property except for the following:
(a) Assignor’s right to amend the Agreement as they apply to any real
property other than the Subject Property; and
(b) [INSERT OTHER RETAINED RIGHTS, IF ANY]
3. Assignee hereby accepts the foregoing assignment and, except as
otherwise provided herein, unconditionally assumes and agrees to perform all of the
duties and obligations of Assignor arising under or from the Agreement as owner of the
Subject Property and Assignor is hereby released from all such duties and obligations.
4. The sale, transfer or assignment of the Subject Property and the
assignment and assumption provided for under this Assignment are the subject of
additional agreements between Assignor and Assignee. Notwithstanding any term,
condition or provision of such additional agreements, the rights of the City arising under
or from the Agreement and this Assignment shall not be affected, diminished or defeated
in any way, except upon the express written agreement of the City.
5. Assignor and Assignee execute this Assignment pursuant to Section 14 of
the Agreement. This Assignment may be executed by the parties hereto in counterparts,
each of which shall be deemed an original.
[Signature page follows]
01247.0025/987544.5 6/12/2024 I-2
IN WITNESS WHEREOF, the parties have executed this Assignment and
Assumption Assignment as of the dates set forth below.
Dated: ______________ ASSIGNOR:
LEWIS LAND DEVELOPERS, LLC, a
Delaware limited liability company
By: Lewis Operating Corp., a California
corporation
Its Manager
By:
Name:
Title:
By:
Name:
Title:
Dated: ________________________ CITY:
By:
Name:
Title:
ASSIGNEE:
By:
Name:
Title:
01247.0025/987544.5 6/12/2024 I-3
ATTACHMENT 1
TO ASSIGNMENT AND ASSUMPTION AGREEMENT
DESCRIPTION OF SUBJECT PROPERTY
[ATTACH LEGAL DESCRIPTION]
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EXHIBIT “J”
SCHEDULE OF PERFORMANCE
Subject to the Permitted Delays and Adverse Economic Event provisions set forth
in the Development Agreement, Developer shall cause the construction and development
of the public infrastructure improvements pursuant to the following schedule:
1. Developer will commence and diligently pursue to completion the Soccer
Field Improvements as set forth on Exhibit “K” and Section 6.3
2. Developer shall commence the New Ball Field Improvements as set forth
in the Exchange Agreement and diligently pursue to completion prior to issuance of the
300th Cerfificate of Occupnacy in the Project.
3. Within 12 months of the Effective Date of the Development Agreement,
Developer and City will coordinate and cause the remediation and removal of arsenic-
laden material within the City’s property (former railroad right-of-way) and obtain
issuance of a No Further Action letter.
4. Within 36 months after the Effective Date of the Development Agreement,
Developer will construct the detention basins and utilize the overburden to grade the
street right-of-way for Taylor/Commerce Way.
5. Prior to the issuance of the 1st Certificate of Occupancy in the Project,
Developer shall construct the full width (4 lanes) street improvements of
Taylor/Commerce Way from Main Street to the Developer’s northern property line of Lot
1 of TTM# 20501. These improvements shall be inclusive of those improvements to
Taylor Street set forth in the Conditions of Approval for Conditional Use Permit No. 20-
03 dated December 2, 2021, including Condition Nos. 2(a) and 10 set forth in the
memorandum from Public Works dated December 1, 2021 attached as an exhibit to the
Conditions of Approval. Developer shall have no responsibility for constructing
Taylor/Commerce to the north of said property line (previously known as Phase 2 of the
street improvements).
6. Prior to the 1st Certificate of Occupancy in the Project, Developer will
commence construction of the public park and will diligently pursue to completion to the
reasonable satisfaction of the City, such that the City is able to accept the park
improvements within 12 months thereafter.
7. Prior to the 1st Certificate of Occupancy in the Project, Developer will
construct the Phase I storm drain improvements in Van Buren to Michigan Avenue.
8. Prior to issuance of the 1st residential unit building permit in the Project,
Developer will construct Sewer improvements as required by the City of Colton.
9. Prior to issuance of the 1st residential unit building permit in the Project,
Developer will construct water main extensions from Main to Developer’s northerly
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property line, and in Van Buren Avenue as required by Riverside Highland Water
Company.
10. Developer will underground dry utilities up to 66 KVA or relocate as
feasible. Developer is not responsible for costs or acquisition of 3rd Party Easements
from other property owners.
11. Prior to the issuance of the 1st Certificate of Occupancy within Lot 4 of
TTM# 20501, Developer will commence construction of the Phase II storm drain
improvements. Completion of the Phase II storm drain improvements is required prior to
the 50th Certificate of Occupancy within Parcel #4.
EXHIBIT “K”
SOCCER FIELD IMPROVEMENTS
Within thirty (30) days after the first to occur of: (i) the end of 2024-2025 AYSO
season, and (ii) the Effective Date (“Commencement Date”), Developer shall
promptly commence and diligently prosecute to completion the improvements to the
Soccer Field as set forth below (“Soccer Field Improvements ”) at the Soccer Field.
The Soccer Field Improvements shall be completed within in six (6) months of the
Commencement Date as Developer understands that the field is critical for the
following AYSO season.
Soccer Field Improvements: ______________________
a. Installation of temporary construction fencing and signage
b. Gopher/ground squirrel abatement
c. Application of broad leaf post emergent spray
d. Scalping of turf once weeds are eliminated
e. Lay down and leveling of field turf area with sand/topsoil mix
f. Installation of seeding with topper
g. Irrigation adjustment/tuning
h. Maintenance and grow-in period for 30 days
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EXHIBIT “L”
NEW BALL FIELD IMPROVEMENTS