Loading...
HomeMy WebLinkAbout691 - Ordinances ORDINANCE NO. 691 AN ORDINANCE OF THE CITY OF RANCHO CUCAMONGA CALIFORNIA, APPROVING DEVELOPMENT AGREEMENT DRC2002-00770, TO ESTABLISH A UNIQUE PARKING RATIO FOR A SENIOR APARTMENT PROJECT, LOCATED AT THE SOUTHWEST CORNER OF MILLIKEN AVENUE AND 6TH STREET AS PROVIDED FOR IN SECTION 65864 OF THE CALIFORNIA GOVERNMENT CODE FOR REAL PROPERTY DESCRIBED HEREIN, AND MAKING FINDINGS IN SUPPORT THEREOF - APN: 2'10-082-53 THRU 57. A. RECITALS. (i) California Government Code Section 65864 now provides, in pertinent part, as follows: "The Legislature finds and declares that: a) The tack of certainty in the approval of development projects can result in a waste of resources, escalate the cost of housing and other developments to the consumer, and discourage investment in and commitment to comprehensive planning which would make maximum efficient utilization of resources at the least economic cost to the public. b) Assurance to the applicant for a development project that upon approval of the project, the applicant may proceed with the project in accordance with existing policies, rules and regulations, and subject to conditions of approval, will strengthen the public planning process, encourage private participation in comprehensive planning, and reduce the economic costs of development." (ii) California Government Code Section 65865 provides, in pertinent part, as follows: "Any city._may enter into a Development Agreement with any person having a legal or equitable interest in real property for the development of such property as provided in this article..." (iii) California Government Code Section 65865.2 provides, in part, as follows: "A Development Agreement shall specify the duration of the Agreement, the permitted uses of the property, the density of intensity of use, the maximum height and size of proposed buildings, and provisions for reservation or dedication of land for public purposes. The Development Agreement may include conditions, terms, restrictions, and requirements for subsequent discretionary actions, provided that such conditions, terms, restrictions, and requirements for discretionary actions shall not prevent development of the land for the uses and to the density of intensity of development set forth in the Agreement..." Ordinance No. 691 Page 2 of 26 (iv) "Attached to this Ordinance, marked as Exhibit "A" and incorporated herein by this reference is proposed Development Agreement DRC2002-00770, concerning that property located at the southwest corner of Church Street and Mayten Avenue, and as legally described in the attached Development Agreement. Hereinafter in this Ordinance, the Development Agreement attached hereto as Exhibit "A" is referred to as the "Development Agreement." (v) On October 23, 2002, the Planning Commission of the City of Rancho Cucamonga held a duly noticed public hearing concerning the Development Agreement and concluded said hearing on that date and recommended approval through the adoption of its Resolution No.20-103. (vi) On November 6, 2002, the City Council of the City of Rancho Cucamonga conducted a duly noticed public hearing concerning the request. (vii) All legal prerequisites prior to the adoption of this Ordinance have occurred. B. ORDINANCE. NOW, THEREFORE, the City Council of the City of Rancho Cucamonga does hereby find, determine, and ordain as follows: SECTION 1: This Council hereby specifically finds that all of the facts set forth in the Recitals, Part A, of this Ordinance are true and correct. SECTION 2: Prior to the adoption of this Ordinance, this Council has reviewed the Initial Study Parts I and II, the Development Agreement, and certified the Mitigated Negative Declaration in compliance with the California Environmental Quality Act of 1970, as amended, and the Guidelines promulgated thereunder. SECTION 3: Based upon substantial evidence presented during the above- referenced public hearings on October 23, and November 6, 2002, including written and oral staff reports, together with public testimony, this Council hereby specifically finds as follows: a) The location, design, and proposes uses set forth in this Development Agreement are compatible with the character of existing development in the vicinity. b) The Development Agreement conforms to the General Plan of the City of Rancho Cucamonga. SECTION 4: It is expressly found that the public necessity, general welfare, and good zoning practice require the approval of the Development Agreement. Ordinance No. 691 Page 3 of 26 SECTION 5: This Council hereby approves Development Agreement DRC2002-00499, attached hereto as Exhibit "A." SECTION 6: The Mayor shall sign this Ordinance and the City Clerk shall cause the same to be published within 15 days after its passage at least once in the Inland Valley Daily Bulletin, a newspaper of general circulation published in the City of Ontario, California, and circulated in the City of Rancho Cucamonga, California. PASSED, APPROVED, AND ADOPTED this 20th day of November 2002. AYES: Alexander, Biane, Curatalo, Dutton, Williams NOES: None ABSENT: None ABSTAINED: None William J. ¢~6xander, Mayor / ATTEST: D~'~ J. Adams,(,G'(vlC, City Clerk Ordinance No. 691 Page 4 of 26 I, DEBRA J. ADAMS, CITY CLERK of the City of Rancho Cucamonga, California, do hereby certify that the foregoing Ordinance was introduced at a Regular Meeting of the Council of the City of Rancho Cucamonga held on the 6th day of November 2002, and was passed at a Regular Meeting of the City Council of the City of Rancho Cucamonga held on the 20th day of November 2002. Executed this 21st day of November 2002, at Rancho Cucamonga, California. Ordinance No. 691 Page 5 of 26 RECORDING REQUESTED BY RECORDING FEES EXEMPT DUE TO AND WHEN RECORDED MAIL TO: GOVERNMENT CODE SECTION 27383 COBLENTZ, PATCH, DUFFY & BASS, LLP 222 Kearny Street, 7tn Floor San Francisco, CA 94108 City Clerk Attn: Harry O'Brien, Esq. (Space Above Line For Recorder's Use Only) DEVELOPMENT AGREEMENT BY AND BETWEEN THE CITY OF RANCHO CUCAMONGA AND KSL RC, L.P. Ordinance No. 691 Page 6 of 26 TABLE OFCONTENT I. DEFINITIONS .................................................................................................................. 2 !1. BENEFITS TO CITY ....................................................................................................... 3 Ill. PROJECT DEVELOPMENT .......................................................................................... 3 A. Permitted Uses ........................................................................................................ 3 B. Rules, Regulations and Official Policies ................................................................ 3 1. Applicable Rules ......................................................................................... 3 2. Required Parking Ratio for Project ............................................................. 3 3. Restrictive Covenant for Senior Housing ................................................... 4 4. Conflicting Enactments with Respect to Parking ....................................... 4 C. Future Approvals .................................................................................................... 4 D. Permitted Conditions .............................................................................................. 4 E. Term of Map(s) and Other Project Approvals ........................................................ 4 F. Timing of Development. Because the California Supreme Court held in Pardee Construction Co. v. City of Camarillo ........................................................ 5 G. Moratorium ............................................................................................................. 5 H. Vesting of Owner's Rights ...................................................................................... 5 I. Development A~eement/Project Approvals .......................................................... 5 IV. COOPERATIONflMPLEMENTATION ....................................................................... 5 A. Further Assurances; Covenant to Sign Documents ................................................ 5 B. Processing During Third Party Litigation ............................................................... 5 C. State, Federal or Case Law ..................................................................................... 6 D. Other Governmental Bodies ................................................................................... 6 E. Defense of Agreement ............................................................................................ 6 V. GENERAL PROVISIONS ............................................................................................... 6 A. Covenants Run with the Land ................................................................................. 6 B. Transfers and Assignments ..................................................................................... 7 1. Right to Assign ........................................................................................... 7 2. Liabilities Upon Transfer ............................................................................ 7 C. Mortgagee Protection .............................................................................................. 7 D. Statement of Compliance ........................................................................................ 8 710481 Ordinance No. 691 Page 7 of 26 E. Default ..................................................................................................................... 8 F. Annual Review ........................................................................................................ 8 G. Default by City ........................................................................................................ 9 H. Legal Action ............................................................................................................ 9 I. Waiver; Remedies Cumulative ............................................................................. 10 J. Future Litigation Expenses ................................................................................... 10 1. Payment lo Prevailing Party ...................................................................... 10 2. Scope of Fees ............................................................................................ 10 3. Term ...................................................................................................................... 10 L. Permillcd Delays; Superscdure by Subsequent Laws ........................................... 11 1. Permitted Delays ....................................................................................... I l 2. Supersedure by Subsequent Laws ............................................................. 11 M. Amendment of Agreement .................................................................................... 1 I Vi. MISCELLANEOUS ....................................................................................................... 11 A. Negation of Partnershlp ........................................................................................ 11 B. No Third Pa~y Beneficiary ................................................................................... 11 C. Entire Agreement .................................................................................................. 11 D. Severability ........................................................................................................... 12 E. Construction of Agreement ................................................................................... 12 F. Section Headings .................................................................................................. 12 Cs. Al~licable Law ..................................................................................................... 12 H. Notices .................................................................................................................. 12 1. Time is of the Essence .......................................................................................... 13 J. Limitation o£Liability ........................................................................................... 13 K. Recordation ........................................................................................................... 13 EXHIBIT A EXHIBIT B ii 710481.4 Ordinance No. 691 Page 8 of 26 DEVELOPMENT AGREEMENT BY AND BETWEEN THE CITY OF RANCHO CUCAMONGA AND KSL RC, L.P. THIS DEVELOPMENT AGREEMENT ("Agreement") is made and entered into as of this day of ,2002, by and between the CITY OF RANCHO CUCAMONGA, a municipal corporation and general law city ("City"), and KSL RC, L.P., a California limited pa~ncrship ("Owner"). WITNESSETH: A. Thc lack of certainty in thc approval ofdcvclopment projects can result in a waste of resources, escalate thc cost of housing and other development, and discourage investment in and commitment to comprehensive planning which would make maximum efficient utilization of resources at thc 1cast cconomlc cost to the public. B. California Government Code Sections 65864-65869.5 (thc "Development Agreement Statute") were therefore enacted authorizing a municipality to enter into binding dcvelopmant agreemants with persons having legal or equitable interests in real property. C. Owner has a legal or equitable interest in certain real property located in City more particularly described in Exhibit "A" attached hereto and incorporated herein by this reference (the "Properly"). D. On ,2002, thc City Council (thc "Council") made a determination pursuant to California Public Resources Code Section 21166 and State CEQA Guidelines Section 15162, that the proposed development of the Property is within the scope of the previously certified Environmental Impact Reports for the Subarea 18 Specific Plan end the General Plan Update, and that no additional environmental review is required. E. Concurrently with adoption of the Ordinance approving this Agreement, the City Planner has approved Development Plan Review No. DRC2002-00499 ("Development Review"). This Agreement and the Development Review shall constilute the "Project Approvals." F. Development of the Project into a 264 unit senior residential community, including associated amenities (the "Project"), will further the comprehensive planning objectives contained within City's General Plan, as amended, and will result in public benefits, including, among others, the following: 1. Fulfilling long-term economic and social goals for City and the community; 2. Providing fiscal benefits to City's General Fund; 3. Providing short-term construction employment within City; and Ordinance No. 691 Page 9 of 26 4. Providing housing which will help to satisfy City's obligation to meet City's share of regional housing needs, in particular the need for active senior housing. G. For the reasons recited herein, City has determined that the Project is a development for which a development agreement is appropriate under the Development Agreement Statute. H. The Council has determined that this Agreement is consistent with the General Plan and sp~-ifically has determined that this Agreement is fair, just and reasonable, and City has cunclud~d that the economic interests of its citizens and the public health, safety and welfare will be best served by entering into this Agreement. I. In light of the benefits to the City as a result of the development of the Project, City has agr~n:l to enter into this Agreement to modify the parking standards that would otherwise be applied to the Project. The purpose of the modified parking standards is to recognize the unique parking needs of a senior housing project, as more fully explained in the Parking Analysis, dated September 17, 2002, prepared by KSL RC, supported by a Parking Analysis prel~ared by Linseott, Law and Greenspan dated July l, 2002. J. The Planning Commission of City (the "Planning Commission") held duly noticed public heatings on this Agreement on October 23, 2002. Following the close of the public hearing, the Planning Commission adopted Resolution No. 02~103 recommending approval of the Agreemeat to the City Council with conditions. K. The Council, after a duly noticed hearing, adopted Ordinance No. , approving this Agreement, which ordinance will become effective on (the "Effective Dale"). NOW,'ITIEREFORE, with reference to the foregoing recitals and in consideration of the mutual promise, obligations and covenants herein contained, the parties hereto agree as follows: SECT1ON L DEFINITIONS. The following terms shall have the meanings defined for such terms in the Sections set forth below: Term Section Appli~ble Rules Section III.B. 1. City Introduction Coun~l Recital D. Decimation of Restrictions Seclion III.B.3. and Exhibit B. Development Agreement Statute Recital B. Duralion of the Project Section III.B.3. Effective Date Recital K. Future Approvals Section III.C. Mo~gagee Section V.C. Notice of Non-Compliance Section V.F. 2 Ordinance No. 691 Page 10 of 26 Owner Introduction Project Recital F. Project Approvals Recital E. Property Recital C. and Exhibit A. Related Parties Section VI.J. Required Parking Ratio Section III.B.2. Subsequent Rules Section III.B.4. Parcel Map Recital E. Term Section V.K. Vested Rights Section III.H. SECTION il. BENEFITS TO CITY. In consideration of thc benefits resulting from this Project, including, but not limited to, thc provision of active senior housing opportunities for the Duration of the Project, as such term is defined in Section III (B)(3), and the benefit to the community that the development of the Project represents, all of which will provide a significant overall benefit to City, City has agreed to enter into this Agreement. SECTION Ill. PROJECT DEVELOPMENT. A. Permitted Uses. The parties hereby agree that, for the term of this Agreement, the permitted uses, the density and intensity of use, the maximum height and size of proposed buildings, provisions for reservation or dedication of land for public purposes, the location of public improvements, and the required amount of off-street vehicular parking spaces for the project, shall be those set forth in this Agreement, the Project Approvals and the "Applicable Rules" (as hereinafter defined). B. Rules~ Regulations and Official Policies. 1. Applicable Rules. The parties hereby agree that, for the term of this Agreement, the rules, regulations and official policies governing permitted uses, governing density, and governing design, improvement and specifications applicable to development of the Property, shall be those roles, regulations and official policies in force at the time of the Effective Date, except as modified by this Agreement, including, without limitation, the Project Approvals (collectively, the "Applicable Rules"). Prior to the Effective Date, City and Owner shall use reasonable efforts to identify two identical sets of the Applicable Rules, one set for City and one set for Owner, so that if it becomes necessary in the future to refer to any of the Applicable Rules, there will be a common set of the Applicable Rules available to both parties. 2. Required Parking Ratio for Project. Notwithstanding any role, regulation or official policy of the City to the contrary, the amount of required off-street vehicular parking spaces for development of the Project shall be the ratio of 1.15 parking spaces for each dwelling unit in the Project (the "Required Parking Ratio.") The Required Parking Ratio shall include all required resident, guest and employee parking spaces. The Required Parking ratio applied to the total number of dwelling units (264 units) for the Project equals 303.6 parking spaces which shall be rounded up to require a minimum of 304 off-street parking spaces. Of the 304 off-street parking spaces required, not less than 132 of those spaces shall be provided in individual "private 3 Ordinance No. 691 Page 11 of 26 garages," and not less than 132 ofthose spaces shall be provided in "carports," as such terms are defined in Section 17.02.140 (C) of the Rancho Cucamonga Development Code. 3. Age Restrigtion; Declaration of Restrictions. In accordance with the Project Approvals, the Project shstl be a senior housing project by which the Owner agrees and covenants that, with the exccptio,, of the Resident Manager, at least one resident in each housing unit in the Pmject shall be at leas155 years of age and that each other resident in the same dwelling unit shall be a qualified i~ermanent resident (as defined in Civil Code Section 51.3), a permitted health care resident (asdefined in Civil Code Section 51.3), or a person under 55 years of age whose occupancy is pertained under subdivision (h) of Civil Code Section 51.3 or under subdivision fo) of Civil Code Section 51.4. In order to ensure that this restriction continues for the Duration of the Project, as such term is defined in this subsection, and beyond the expiration of this Agreement, a declaration ot'restrictions in the form attached hereto as Exhibit B (the "Declaration of Restrictions") sha~ be executed by thc Owner and recorded against the Property which shall remain in effect for th~ Duration of the Project or until released with the written approval of the City. For purposes of this Agreement, the term "Duration of the Project" shall mean the period of time fi.om the commencement of construction of the Project until the point in time that is thc earlier of either: (~ the complete demolition of thc Project; or (ii) thc City's approval of a change in usc fi.om · senior housing project to some other use of the Property. 4. Conflicting Enactments with Respect to Parking. Any change in the amount of required off-street vehienlar parking for the Project, including, without limitation, any change in any applicable general, community plan, area or specific plan, zoning, subdivision rule or regulation, adopted or becoming effective aQer the Effective Date, including, without limitation, any such change by means of an ordinance, initiative, resolution, policy, order or moratorium, initiated or instituted for any reason whatsoever and adopted by the Council, the Planning Commission or any othes board, agency, commission or department of City, or any officer or employee thereof, or by the electorate, as the case may be, which would, absent this Agreement, otherwise be applicabi~ to the Property and which would conflict in any way with or be more reslficlivc than the Requital Parking Ratio ("Subsequent Rules"), shall not be ·pplied by City to thc Property. Owner nmy give City written notice of its election to have any Subsequent Rule applied to the Property, in which case such Subsequent Rule shall be deemed to be an Applicable Rule. C. Future Approvals. Any development oftbe Property shall require all discretionary approvals required b~, the Applicable Rules (collectively, the "Future Approvals"). D. Permitled Conditin,~ Provided Owner's applications for any Future Approvals are consistent with this Agreemenl and the Applicable Rules, City shall grant in a timely manner thc Future Approvals in accordance with the Applicable Rules. E. Term of Map(s} and Other Proicct Approvals. Pursuant to California Government Code Sections 66452.6(a) and 65863.5, thc term of any subdivision or parcel map that may be processed on all or any portion of the Properly and the term of each of the Project Approvals shall be extended for a period of time through the scheduled termination date of this Agreement as set forth in Section V.K below. 4 Ordinance No. 691 Page 12 of 26 F. Timing of Development. Because the California Supreme Court held in Pardee Construction Co. v. City of Camarillo, 37 Cal.3d 465 (1984), that the failure of the parties therein to provide for the timing of development resulted in a later-adopted initiative restricting the timing of development to prevail over the parties' agreement, it is the parties' intent to cure that deficiency by acknowledging and providing that Owner shall have the right (without obligation) to develop the Property in such order and at such rate and at such times as Owner deems appropriate within the exercise of its subjective business judgment. G. Moratorium. No City-imposed moratorium or other limitation relating to the required amount of off-street vehicular parking for development of the Property, whether imposed by ordinance, initiative, resolution, policy, order or otherwise, and whether enacted by the Cour~il, an agency of City, the electorate, or otherwise affecting parcel or subdivision maps (whether tentative, vesting tentative or final), building permits, occupancy certificates or other entitlemeats to use or service (including, without limitation, water and sewer) approved, issued or granted within City, or portions of City, shall apply to the Property to the extent such moratorium or limitation on parking is in conflict with Required Parking Ratio set forth in this Agreement; provided, however, the provisions of this Section shall not affect City's compliance with moratoria or other limitations mandated by other governmental agencies or court-imposed moratoria or other limitations. H. Vesting of Owner's Rights. The rights and entitlements granted to Owner pursuant to this Agreement shall be and constitute "vested rights" or the equivalent of "vested rights," as that term is defined under California law applicable to the development of land or property ~nd the right ora public entity to regulate or control such development of land or property, with respect to the ability of Owner to construct the Project in compliance with the Required Parking Ratio set forth in this Agreement. I. Development Agreement/Proiect Approvals. In the event of any inconsistency between any Project Approval and this Agreement, the provisions of this Agreement shall contml. SECTIOlg, IV. COOPERATION/IMPLEMENTATION. A. Further Assurancesi Covenant to Sign Documents. Each party shall take all actions and do all things, and execute, with acknowledgment or affidavit, if required, any and all documents and writings, that may be necessary or proper to achieve the purposes and objectives of this Agreement, including, but not limited to, the execution and recordation of the Declaration of Restric6oas that restricts the use of the project for seniors for the Duration of the Project. B. Processing During Third Party Litigation. The filing of any third party lawsuit(s) against City or Owner relating to this Agreement, the Project Approvals or to other development issues aff~xting the Propexty shall not delay or stop the development, processing or construction of the Project, approval of the Future Approvals, or issuance of"Ministerial Approvals" (as hereinafter defined), unless the third party obtains a court order preventing the activity. City shall not stipulate to the issuance of any such order. For purposes of this Agreement the term "Ministerial Approvals" shall be defined to mean approvals requiring the determination of conformance with the Applicable Rules, including, without limitation, site plans, design review, 5 Ordinance No. 691 Page 13 of 26 dcvclopment plans, land use plans, grading plans, impmvcmant plans, building plans and specifications, and ministerial issuance of one or more final maps, zoning clearances, grading permits, improvement permits, wall permits, building permits, lot line adjustments, encroachment permits, conditional and temporary use permits, certificates of usc and occupancy and approvals and entitlements and related matters as may be necessary for thc completion of the development of the Property. C. State, Federal or Case Law. Where any state, federal or ease law allows City to exercise any discretion or take any act with respect to that law, City shall, in an expeditious and timely manner, at the earliest possible time, (a) exemise its discretion in such a way as to be consistent with, and carpi out thc terms of, this Agreement and Co) take such otber actions as may be necessary to carry out in good faith the terms of this Agreement. D. Other Govcmmcntal Bodies. To the extent that City, the Council, Planning Commission or any other City agency constitutes and sits as any other board or agency, it shall not take any action that conflicts with City's obligations under this Agreement. E. Defense of A~eement. 1. Owner shall defend at its sole expense any lawsuit, claim or action brought against City, its agents, officers, or cmployens, arising out of the approval, execution or implementation of this Agracment. The Owner shall reimburse the City, its agents, officers, or employees for any court costs and attorney's fees which thc City, its agents, officers or employees may be required to pay as a result of such action. The City may, at its sole discretion, participate at its own expense in the defense of any such action but such participation shall not relieve applicant of his obligations under this subparagraph. 2. Without limiting the terms and conditions of subparagraph (IV)(E)(1) above, City shall take all actions which arc necessary or advisable to uphold the validity and enforceability of this Agreement. lfthis Agreement is adjudicated or determined to bc invalid or unenforceable, City agrees, subject to all legal requirements, to consider modifications to this Agreement to render it valid and enforceable to the extent pennirted by applicable law. SECTION V. GENERAL PROVISIONS. A. Covenants Run with thc Land. All of the provisions, agreements, rights, powers, standards, terms, covenants and obligations contained in this Agreement shall be binding upon the parti~ and their respective heirs, successors (by merger, reorganization, consolidation or olh~Twis~) and assigns, devisees, administrators, represantativ~, Icsse{~, and all other persons acquiring the Properly, or any portion thereof, or any interest therein, whether by operation of law or in any manner whatsoever, and shall inure to the benefit oftbe parties and their respective heirs, successors and assigns. All of the provisions of this Agreement shall constitute covenants running with the land. 6 Ordinance No. 691 Page 14 of 26 B. Transfers and Assignments. 1. Right to Assign. Owner shall have the right to sell, assign or transf~ all or portions of the real property comprising the Property to any person at any time during tl,t term of this Agreement. 2. Liabilities Upon Transfer. Upon the delegation of all duties and obligations and the sale, transfer or assignment of all or any portion of the Property, Owner shall be released from its obligations under this Agreement with respect to the Property, or portion thereof, so transferred arising subsequent to the effective date of such transfer if (i) Owner has provided to City ten days' written notice of such transfer and (ii) the transferee has agreed ia writing to be subject to all of the provisions hereof applicable to the portion of the Property so transferred. Upcm any transfer of any portion of the Properly and the express assumption of Owner's obligations under this Agreement by such transferee, City agrees to look solely to the transferee for compliance by such transferee with the provisions of this Agreement as such provisions relate to the portion of the Property acquired by such transferee. A default by any transferee shall only affect that portion of the Property owned by such transferee and shall not cancel or diminish in any way Owner's rights hereunder with respect to any portion of thc Property not owned by such transferee. Thc transferee shall be responsible for the reporting and annual review requirements relating to the portion of the Property owned by such transferee, and any amendment to this Agreement between City and a transferee shall only affect the portion of the Property owned by such transferee. C. Mortgagee Protection. The parties hereto agree that this Agreement shall prevent or limit Owner, in any manner, at Owner's sole discretion, from encumbering the Property or any portion thereof or any improvement thereon by any mortgage, deed of trust or other security device securing financing with respect to the Property. City acknowledges that the lender(s) providing such financing may require certain Agre~nent int~prctations and modifications and agrees upon request, from time to time, to meet with Owner and representatives of such lender(s) to negotiate in good faith any such request for interpretation or modification. City will not unreasonably withhold its consent to any such requested interpretation or modification provided such interpretation or modification is consistent with the intent and purposes of this Agreement. Any mortgagee ora mortgage or a beneficiary of adced of trust ("Mortgagee") of the Property shall be entitled to the following rights and privileges: 1. Neither entering into this Agreement nor a breach of this Agreement shall defeat, render invalid, diminish, or impair the lien of any mortgage or deed of trust on the Property made in good faith and for value. 2. Any Mortgagee may give notice to City in writing that it holds a mortgage in the Property and may request copies of any notice of default given to Owner under the teams of this Agreement to be sent to that Mortgagee. Any such notice shall include the address to which the Mortgagee desires copies of notices to be mailed, lfCity timely receives a request from a Mortgagee requesting a copy of any notice of defanlt given to Owner under the terms of this Agreement, City shall provide a copy of that notice to the Mortgagee within ten days of sending the notice of default to Owner. The Mortgagee shall have the right, but not the obligation, to cure the default during the remaining cure period allowed such party under this 7 Ordinance No. 691 Page 15 of 26 Agreement, end City shall accept such cure by or at the instance ofthe Mortgagee as if the same had been made by the Owner. 3. Any Mortgagee who comes into possession of the Property, or any part thereof, pursuant to foreclosure of the mortgage or deed of trust, or deed in lieu of such foreclosure, shall take the Property, or part thereof, subject to the terms of this Agreement; provided, however, in no event shall such Mortgagee be liable for any monetary obligations of Owner arising prior to acquisition of title to the Property by such Mortgagee, except that any such Mortgagee or its successors or assigns shah not be entitled to a building permit or occupancy certificate until all delinquent and current fees and other monetary obligations due under Ihis Agreement for the Property, or portion thereof, acquired by such Mortgagee have been paid to City. D. Statement of Compliance. Within thirty days following any written request which either City or Owner may make from time to time, the other shall execute and deliver to the requesting party a statement certifying that lo the City's/Agency's knowledge: (1) this Agreement is unmodified end in full force and effect or, if there have been modifications hereto, that this Agreement is in full force and effect, as modified, and stating the date and nature of such modifications; (2) there are no current uncured defaults under this Agreement or specifying the dates and nature of any such defaults; and (3) any other reasonable information requested. The failure to deliver such statement within such time shall be conclusive upon the party which fails to deliver such statement that this Agreement is in full force end effect without modification and that there are no uncured defaults in the performance ofthe requesting party. The City Manager shall be authorized to execute any such statement. E. Default. Failure by City or Owner to perform any term or provision ofthis Agreement for a period of thirty days from the receipt of written notice thereof from the other shall constitute a default under this Agreement, subject to extensions of rime by mutual consent in writing. Said notice shall specify in detail the nature of the alleged default and the manner in which said d~fault may be satisfactorily cured. If the nature of the alleged default is such that it cammt reasonably be cured within such 30-day period, the commencement of the cure within such time period and the diligent prosecution to completion of ibc cure shall be deemed a cure within such period. Subject to the foregoing, after notice and expiration of the 30-day period without cure, the notifying party, at its option, may institute legal proceedings pursuant to this Agreement and/or give notice of intent to terminate this Agreement pursuant to Government Code Section 65868. Following such notice of intent lo terminate, the matter shall be scheduled for consideration and review by the Council within thirty calendar days in the manner set forth in Gov~slmienl Code Sections 65867 end 65868. Following consideration of the evidence presented in said review before the Council and a determination thai a default exists, the party alleging the default by the other party may give written notice of termination of this Agreement to the other party. F. Annual Review. Ordinance No. 691 Page 16of26 1. Pursuant to Government Code Section 65865.1, throughout the term of this Agreement, good faith compliance with the lerms of this Agreement by Owner shall be reviewed by the Planning Commission at the regularly scheduled Planning Commission meeting next following each annual anniversary of the Effective Date. If as a result of such review, City reasonably determines, on the basis of substantial evidence presented at such meeting, that Owner has not complied in good faith with the terms and conditions hereof, City shall provide written notice thereof("Notice of Non-Compliance"), stating in specific detail and specific reasons for such finding. After City delivers the Notice of Non-Compliance, Owner shall have theright to cure such non-compliance as provided in Section v.E. above. In the event that Owner does not timely cure the non-compliance after a Notice of Non-Compliance is delivered by City or, if during the period which Owner must cure such default, Owner ceases to make reasonable eff~ts to effect such cure, City may proceed to terminate this Agreement on ten days' prior writlen notice to Owner in accordance with the termination procedure set forth in Section v.E. above. 2. In addition to the provisions of subparagraph (V)(F)(1) above, and without limilafion thereto, on or before March 15 of each year during the Term following covmnencement of the Project, the Owner, or its representative, shall file a reporl of continuing program compliance with the City. Each such report shall contain information as City may rea.~mably require including, but not limited to a project occupancy profile, including the age of all occupants. In addition, for purposes of assessing the needs of the residents of future similar senior housing developments, City may (a) in any one such report, require Owner to include the results of an on- site Inu'king count survey conducted over a two-day period, including a Saturday, between the hou~ of 7:00 a.m. and 11:00 p.m. of each such day in the two-day period, and/or (b) conduct its own annual survey of the residents in the Project. G. Default by City. In the event City defaults (as defined in Section V.E. herein) undo' the terms of this Agreement, Owner shall have all rights and remedies provided herein or undea' applicable law, including the specific performance of this Agreement. H. Legal Action. Any party may, in addition to any other fights or remedies, institate legal action to cure, correct or remedy any default, enforce any covenant or agreement herda, enjoin any threatened or attempted violation hereof, or enforce by specific performance the obligations and fights of the parties hereto. Pursuant to Code of Civil Procedure Section 638, et seq., all legal actions shall be heard by a referee who shall be a retired judge from either the San Bemardino County Superior Coral, the California Court of Appeal, the United States District Court or the United States Court of Appeals, provided that the selected referee shall have experience in resolving land use and real prolm'ty disputes. Owner and City shall agree upon a single refe~e who shall then try all issues, whether of fact or law, and report a finding and judl0nent thereon and issue all legal and equitable relief appropriate under the circumstances of the controversy before such referee. If Owner and City are unable to agree on a referee within ten days of a written request to do so by eithe~ party hereto, either party may seek to have one appointed pursuant to Code of Civil Procedure Section 640. The cost of such proceeding shall initiallybe borne equally by the 9 Ordinance No. 691 Page 17 of 26 parties. Any referee selected pursuant to this Section V.H. shall be considered a temporary judge appointed purstmm to Article 6, Section 21 of the California Constitution. I. Waiver; Remedies Cumulative. Failure by City or Owner to insist upon the strict performance of any of the provisions of this Agreement, irrespective of the length of time for which such failure continues, shall not constitute a waiver of the right to demand strict compliance with this Agreement in the future. No waiver by City or Owner of a default or breach of any other party shall be effective or binding upon it unless made in writing, and no such waiver shall be implied from any omission by City or Owner to take any action with respect to such default or breach. No express written waiver of any defaults or breach shall affect any other default or breach, or cover any other period of time, other than any default or breach and/or period of time specified in such express waiver. One or more written waivers of a default or breach under any provision of this Agreement shall not be a waiver of any subsequent default or breach, and the performance of the same or any other term or provision contained in this Agreement. Subject to notice of default and opportunity to cure under Section V.E., all of the remedies permitled or available under this Agreement, at law or in equity, shall be cumulative and alternative, and invocation of any such right or remedy shall not constitute a waiver or election ofrem~ies with respect to any other permitled or available right or remedy. J. Future Litigation Expenses. 1. Payment to Prevailing Party. If City or Owner brings an action or proceeding (including, without limitation, any motion, order to show cause, cross-complaint, counterclaim, or third-party claim) by reason of defaults, breaches, tortious acts, or otherwise arising out of this Agreement, the prevailing party in such action or proceeding shall be entitled to its costs and expenses of suit including, but not limited to, reasonable attorneys' fees and expert witness fees. 2. Scope of Fees. Attorneys' fees under this Section shall include altorncys' fees oa any ap~ and, in addition, a party entitled to attorneys' fees shall be entitled to all other reasonable co~ ami expenses incurred in connection with such action. In addition to the foregoing award of attorneys' fees to the prevailing party, the prevailing party in any lawsuit shall be entitled ~o its atlorneys' fees incurred in any post-judgment proceedings to collect or enforce the judgment. This provision is separate and several and shall survive the merger of this Agreement into any judgment on this Agreement. K. Tmm~ Unless the "Term" (as hereinafter defined) of this Agreement is otherwise terminated, modif~d or extended by circumstances set forth in this Agreement or by mutual consent of the pagties, thc duration of this Development Agreement (the "Term") shall be thc longer of either ofthe following: (i) five (5) years; or (ii) the expiration of the Project Approvals. Notwithstanding the foregoing, if construction of the Project is commenced within the Term, and then before the Term of this Agreement would otherwise expire, the Project is thereafter destroyed by fire, other calamity, by an act of God, or by the public enemy, the Project may be restored and the previously authorized uses completed, provided that restoration is started within one year thereafter and diligently pursued to completion. ~0 Ordinance No. 691 Page 18 of 26 L. Permitted Delays; Supersedure by Subsequent Laws. 1. Permitted Delays. In addition to any specific provisions of this Agreement, performance ofobligaions hereunder shall be excused and the Term of this Agreement shall be similarly extended during any period of delay caused at any time by reason of: acts of God such as floods, easlhquakes, fires, or similar catastrophes; wars, riots or similar hostilities; strikes and other labor difficulties beyond the party's control (including the party's employment force); the enactment of new laws or restrictions imposed or mandated by other governmental or quasi-governmenlal entities preventing this Agreement from being implemented; litigation involving Ibis Agreement, the Project Approvals, the Future Approvals or the Ministerial Approvals, which directly or indirectly delays any activity contemplated hereunder, delay in the issuance of bonds or formation of the CFD or other Financing Mechanism; or other causes beyond the party's control. City and Owner shall promptly notify the other party of any delay hereunder as soon as possible after the same has been ascertained. 2. Supemedure by Subsequent Laws. If any federal or state law, made or enacted after the Effective Date prevents or precludes compliance with one or more provisions of, this Agreement, then the provisions of this Agreement shall, to the extent feasible, be modified or suspended as may be necessary to comply with such new law. Immediately after enactment or promulgation of any such new law, City and Owner shall meet and confer in good faith to determine the feasibility of any such modification or suspension based on the effect such modification or suspension would have on the purposes and intent of this Agreement. Owner and/or City shall have the right to challenge the new law preventing compliance with the terms of this Agreement, and in the event such challenge is successful, this Agreement shall remain unmodified and in full force and effect. At Owner's sole option, the term of this Agreement may be extended for the duration of the period during which such new law precludes compliance with the provisions of this Agreement. M. Amendment of Agreement. This Agrccmant may be amended from time to time by mutual consent of the parties to ~his Agreement, in accordance with the provisions of Government Code Sections 65867 and 65868. SECTION VI. MISCELLANEOUS. A. Negation of Partnership. Thc Project constitutes private development, neither City nor Owner is acting as the agent of the other in any respect hereunder, and City and Owner arc independent entities with respect to the terms and conditions of this Agreement. None of the terms or provisions of this Agrc~t shall be deemed to create a partnership between or among thc parties in thc businesses of Owner, thc affairs of City, or otherwise, nor shall it cansc them to be considered joint venturers or members of any joint enterprise. B. No Third Party Beneficiary. This Agreement is not intended, nor shall it be construed, to create any third-party beneficiary rights in any pemon who is not a party, unless expressly otherwise provided. C. Entire A~rcement. This Agreement sets forth and contains thc entire understanding and agreement of thc parties, and there are no oral or written representations, 11 Ordinance No. 691 Page 19 of 26 understandings or ancillary covenants, undertakings or a~'eements which are not contained or expressly referred to herein. No testimony or evidence of any such representations, understandings or covenants shall be admissible in any proceeding of any kind or nature to interpret or determine the terms or conditions of this Agreement. D. Sevembility. Invalidation of any of the provisions contained in this Agreement, or of the application thereof to any person, by judgment or court order shall in no way affect any of the other provisions hereof or the application thereof to any other person or circumstance, and the same shall remain in full fome and effect, unless enforcement of this Agreement, as so invalidated, would be unreasonable or inequitable under all the circumstances or would frustrate the purposes of this Agreemenl and the rights and obligations of the parties hereto. E. Constxuction of Agrecment. The provisions of this Agreemenl and the Exhibits hereto shall be construed as a whole according to their common meaning and not strictly for or against Owner or City and consistent with the provisions hereof, in order to achieve the objectives and purposes. Wherever required by thc context, the singular shall include the plural and vice versa, and the masculine gender shall include thc feminine or neuter genders, or vice versa. F. Section Headings. All seclion headings and subheadings are inse~ed for convenience only and shall not affect any construction or interpretation of this Agreement. G. Applicable Law. This Agreement shall be construed and enforced in accordance with the laws of the State of California. H. Notices. Any notice shall be in writing and given by delivering the same in person or by sending the same by registered, or certified mail, return receipt requested, with postage prepaid, by overnight delivery, or by facsimile to the respective mailing addresses, as follows: Cit~ City of Rancho Cucamonga 10500 Civic Center Drive, Box 807 Rancho Cucamonga, CA 91729-0807 Atlcntion: City Manager Facsimile: (909) 477-2849 Copy to: Richards, Watson & Gershon ,,~tlomcys at Law Number One Civic Center Clinic P. O. Box 1059 Brea, CA 92822-1059 Attention: James L. Markman, Esq. Facsimile: (714) 990-6230 Owner: KSL RC, L.P. 5790 Fleet Street, Suite 300 Carlsbad, CA 92008 12 Ordinance No. 691 Page 20 of 26 Attention: Anthony A. Ferrero Facsimile: (760) 804-5909 Copy to: Coblentz, Patch, Duffy & Bass, LLP 222 Kearny Street, 7th Floor San Francisco, CA 94108 Attention: Harry O'Brien, Esq. Facsimile: (415) 989-1663 Either City or Owner may change its mailing address at any time by giving written notice of such change lo the other in the manner provided herein at least ten days prior to the date such change is effected. All notices under this Agreement shall be deemed given, received, made or communicated on thc earlier of the date personal delivery is effected or on the delivery date or attempted delivery date shown on the rctum receipt, air bill or facsimile. ]. Time is of the Essence. Time is of the essence of this Agreement and of each and every term and condition hereof. J. Limitation of Liability. City hereby acknowledges and agrees that Owner's obligations under this Agreement are solely those ofKSL RC, L.P. and in no event shall any present, past or future officer, director, shareholder, employee, partner, affiliate, manager, representative or agent of Owner ("Related Parties") have any personal liability, directly or indirectly, under this Agreement and recoume shall not be available against Owner or any Related Party in connection with this Agreement or any other document or instrument heretofore or hereafter executed in connection with this Agreement. The limitations of liability provided in this Section are in addition to, and not in limitation of, any limitation on liability applicable to Owner or any Related Party provided by law or in any other contract, agreement or instrument. K. Recordation. In order to comply with Section 65868.5 of the Government Code, the parties do hereby direct the City Clerk to record a copy of this Agreement against the Proper~y with the County Recorder of San Bemardino County within ten (10) days after the Effective Date. 13 Ordinance No. 691 Page 21 of 26 IN WITNESS WHEREOF, Owner and City have executed this Agreement as of the date first hereinabove written. "City" CITY OF RANCHO CUCAMONGA, a municipal corporation By: Mayor Attest: City Clerk Approved as to Form: By: City Attorney KSL RC, L.P., a California limited liability partnership "General Partner" By: Name: Title: 14 Ordinance No. 691 Page 22 of 26 STATE OF CALIFORNIA ) COUNTY OF SAN BERNARD[NO ) On ,2002, before mc, the undersigned, a Notary Public in and for said County and State, personally appeared ., personally known to me (or 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 within instrument. WITNESS my hand and official seal. Notary Public STATE OF CALIFORNIA ) COUNTY OF SAN BERNARDINO ) On ~, 2002, before me, the undersigned, a Notary Public in and for said County and State, personally appeared , personally known to me (or 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/lheir authorized capacity(les), 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 Within instrument. WIINESS my hand and official seal. Notary Public 15 710481 4 Ordinance No. 691 Page 23 of 26 EXttlBIT "A" LEGAL DESCRIPTION OF PROPERTY 710481.4 Ordinance No. 691 Page 24 of 26 EXHIBIT "B" RECORDING REQUESTED BY AND WHEN RECORDED RETURN TO: City of Rancho Cucamonga Attn: City Clerk 10500 Civic Center Drive Rancho Cucamonga, CA 91730 SPACE ABOVE THIS LINE FO[[ RECORDER'S USE DECLARATION OF RESTRICTIONS REGARDING SENIOR HOUSING PROJECT This Declaration of Restrictions (thc "Declaration") is executed as of ,2002, by KSL RC, L.P., a California limited partnership ("Owner"). RECITALS A. Owner is thc owner of certain real property generally located near thc southwest comer of Sixth Street and Fairway View Lane in the City of Rancho Cucamonga, California, as more particularly described on Exhibit A attached hereto (thc "Property"). B. Owner submitted an application for development of a senior housing apartment complex containing approximately two hundred sixty-four (264) dwelling units for senior citizens (the "Project'). In order for Owner to satisfy certain requirements of the Development Agreement entered into by and between thc City of Rancho Cucamonga and Owner on date, Owner desires to impose certain restrictions on the Property. C. The City of Rancho Cucamonga, a municipal corporation (the "City"), is intended to be a third party beneficiary of this Declaration, such that consent of the City in a form to be recorded in the Official Records of the County of San Bernardino, shall be required for the modification of revocation of the restrictions imposed herein. NOW, THEREFORE, Owner hereby declares and agrees as follows. 1. Occupancy Restrictions. In accordance with thc Project Approvals, the Project shall be a senior housing project by which, with the exception of the Resident Manager, at least one resident in each housing unit in the Project shall be at ]cast 55 years of age and each other resident in the same dwelling unit shall be a qualified permanent resident (as defined in Civil Code Section 51.3), a permitted hearth care resident (as defined in Civil Code Section 51.3), or a person under 55 years of age whose occupancy is permitted under subdivision (h) of Civil Code Section 51.3 or under subdivision (b) of Civil Code Section 51.4. B-I Ordinance No. 691 Page 25 of 26 2. Term. This Declaration and the restrictions against the Property contained herein shall automatically terminate and cease to affec! the Property upon the earlier of(i) the complete demolition of the Pmject, or (ii) approval of the City pursuant to the Code of a change in use from a senior housing project operated in accordance with the occupancy restrictions set forth in Section 1 of this Declaration to some other use of the Property. Upon notice of the occurrence of such event, the City Planner of City or his designee shall execute and record a document confirming the termination of this Declaration. Subject to the foregoing, the Property shall hereafter be held, transferred, sold, leased, conveyed and occupied subject to Ihe restrictions, covenants, and obligations set forth herein. 3. Modification, Revocation or Termination. This Declaration has been recorded in order to satisfy the requirements of the Development Agreement and to obtain the approval by the City of certain permits for the Project. The restrictions created herein may not be modified, revoked or terminated, except as provided in Section 2, without the written consenl of the then record owner of the Property, and any such modification, revocation or termination shall not be effective unless and until the City consents thereto in writing after receiving written notice thereof from the then record owners of the Property, and such modification, revocation or termination, executed by the City Planner of City, is recorded in the Official Records ofthe County of San Bemardino. 4. Third Party Beneficiary. The City is intended to be a third party beneficiary of- this Declaration, with the right to consent to any modification or revocation hereof and the right and authority, at its sole option, to enforce the provisions hereof(including, but not limited to remedies for violation ora building permit); provided, however, that the City shall have no liability whatsoever hereunder with respect to the condition of the Property. 5. Dedication. Nothing contained in this Declaration shall be deemed a gift or dedication of any portion of the Property to the general public or for the general public or for any public purpose whatsoever. It is the intention of Owner that this Declaration shall be strictly limited to and for the purposes expressed herein. 6. Successors. The restrictions contained herein shall run with the land and automatically, and without further action by Owner bind and inure to the benefit of the heirs, assigns, personal representatives, transferees and successors of Owner. 7. Governing Law. This Declaration shall be governed by and construed in accordance with the laws of the State of California. 8. Severabilib/. The invalidity or unenforceability of any provision of this Declaration with respect to a particular party or set of circumstances shall not in any way affect the validity or enforceability of any other provision hereof, or the same provision when applied to another party or a different set of circumstances. 9. Authority. The persons executing this Declaration on behalf of Owner do hereby covenant and warrant that Owner is a duly authorized and existing limited partnership, and that Owner has and is qualified to do business in California, that Owner has full right and authority to enter into this Declaration, and the persons signing on behalf of Owner are authorized to do so. B-2 Ordinance No. 691 Page 26 of 26 10. Counte~arts. This Declaration may be executed in counterparts, each of which shall be deemed an original, btlt all ofwhlch, together, shall constitute one and the same Declaration. IN WITNESS WHEREOF, Owner executed this instrument effective as of the day and year first above written, and City has accepted this Declaration. RSL RC, L.P. a California limited partnership By: lts: By: Its: APPROVED: CITY OF RANCHO CUCAMONGA Mayor ATTEST City Clerk B-3 7104814