HomeMy WebLinkAboutPreannexation & Development Agreement - DRAFT.pdfRECORDING REQUESTED BY
AND WHEN RECORDED RETURN TO:
City of Diamond Bar
21825 Copley Drive
Diamond Bar, CA 91765
Attn: City Manager
[Exempt from Recording Fees per Gov. Cade §61031
PREANNEXATION
AND
DEVELOPMENT AGREEMENT
BETWEEN
THE CITY OF DIAMOND BAR
AND
AERA ENERGY LLC
Aera\Diamond Bar\Preannexation&DevelAgmt:07/18/06
1
PREANNEXATION
AND
DEVELOPMENT AGREEMENT
BETWEEN
THE CITY OF DIAMOND BAR
AND
AERA ENERGY
TABLE OF CONTENTS
Page
DEFINITIONS...............................................6
1.1 "Agreement"..........................................6
1.2 "Agreement Date".....................................6
1.3 "Bond" .................................
1.4 "CEQA"...............................................7
1.5 "City„...............................................7
1.6 "City's MAI Appraisal"...............................7
1.7 "Conceptual Grading Plan" ............................7
1.8 [Intentionally Deleted] ..............................7
1.9 "Conservation Easement" ..............................7
1.10 [Intentionally Deleted] ..............................7
1.11 "District"...........................................7
1.12 "EIR"................................................7
1.1.3 [Intentionally Deleted] ..............................7
1.14 [Intentionally Deleted] ..............................7
1.15 [Intentionally Deleted] ..............................7
1.16 [Intentionally Deleted] ..............................8
1.17 "HCP"................................................8
1.18 [Intentionally Deleted] ..............................8
1.19 "Impositions"........................................8
1.20 "LAFCO"..............................................8
1.21 "Land Regulations"...................................8
1.22 "Mortgagee"..........................................8
1.23 Intentionally Deleted . ..............................9
1.24 "Notices"............................................9
1.25 "Oil Facilities" .....................9
1.26 "Open Space".........................................9
1.27 [Intentionally Deleted] ..............................9
1.28 "Owner"..............................................9
1.29 Intentionally Deleted . ..............................9
1.30 Intentionally Deleted................................9
1.31 "Permitted Transferee"...............................9
1.32 "Project"...........................................10
1.33 "Project Approvals".................................10
1.34 "Project Phasing Plan"..............................10
1.35 "Pro Rata Basis"....................................10
AeralDiamond Bar\Preannex&Deve1Agt:0711$106
1.36
"Public Benefits"...................................1C
1.37
"Public Benefit Sites"..............................11
1.38
"Public Financing"..................................11
1.39
"Public Financing Plan" .............................11
1..40
[Intentionally Deleted] .............................11
1.41
[Intentionally Deleted] .............................11
1.42
"Reserved Authority"................................11
1.43
Intentionally Deleted..............................11
1.44
Intentionally Deleted..............................11
1.45
Intentionally Deleted..............................11
1.46
"Specific Plan".....................................11
1.47
"Substituted Security"..............................11
1.48
[Intentionally Deleted] .............................11
1.49
"AERA Brea Property"................................12
1.50
"AERA Orange County Property" .......................12
1.51
"AERA L.A. County Property" .........................12
1.52
"AERA Property".....................................12
1.53
"Transferred Property"..............................12
1.54
"USFWS".............................................12
1.55
Additional Defined Terms ...........................12
2. GENERAL PROVISIONS.......................................12
2.1 Binding Effect of Agreement .........................12
2.2 Relationship of the Parties .........................13
2.3 Duration of Agreement...............................14
2.4 Life of Subdivision Maps ............................14
2.5 Assignment..........................................14
2.5.1 All or Part...................................14
2.5.2 Assumption of Obligations .....................14
2.5.3 Assignment of Rights ..........................15
2.5.4 Release of Security ...........................15
2.5.5 Defaults......................................16
2.6 Amendment of Agreement..............................16
2.6.1 Amendment of Agreement ........................16
2.6.2 Minor Amendments..............................16
2.6.3 Assuming Permitted Transferee .................17
2.6.4 Non -Assuming Permitted Transferees ............17
2.7 Concurrent Approvals................................17
3. ANNEXATION AND PREZONING.................................18
3.1 Annexation..........................................18
3.1.1 Owner Institutes..............................18
3.1.2 Owner Cooperation .............................18
3.1.3 Mutual Cooperation ............................18
3.2 Prezoning...........................................18
3.3 Oil Well Production Taxes and Related Fees
and Charges.........................................19
1! Aera\Diamond Bar\Preannex&Deve1Agt:07118106
3.4 Timing..............................................20
3.4.1 Recordation of Agreement ......................20
3.4.2 Annexation Timing .............................20
3.5 California Environmental Quality Act ................20
4. DEVELOPMENT OF THE AERA PROPERTY .........................21
4.1 Vested Right to Develop .............................21
4.2 Vested Dwelling Unit Entitlement ....................21
4.3 Permitted Use.......................................22
4.4 Application Rules, Regulations and Policies .........22
4.5 Exception for Uniform Codes .........................22
4.6 Development, Construction and Completion
ofProject..........................................22
4.7 Standards of Development and Allocation -of Land Within
the Specific Plan to All Types of and Intensities of
Land Uses Identified Therein ........................23
4.8 Subsequent Enactments...............................23
4.8.1 Limits on Density and Intensity ...............23
4.8.2 Limits on Phasing .............................23
4.8.3 Location of Improvements ......................24
4.8.4 Discriminatory Application of Ordinances ......24
4.8.5 Exactions.....................................24
4.8.6 Reduction in Rights ...........................24
4.9 Impositions.........................................24
4.10 Intentionally Deleted.............................................................................25
4.11 Intentionally Deleted.
Element Compliance".................................26
4.12 Taxes, Fees, Charges, Conditions and Dedications ....26
4.13 Reservations and Dedications ........................27
4.13.1 Reservation of Open Space ....................27
4.13.2 No New Dedications ...........................27
4.14 Park Site(s)........................................27
4.15 HCP.................................................27
4.16 Intentionally Deleted...............................28
4.17 Intentionally Deleted.
4.18 Police Power and Moratoria ..........................30
5. INFRASTRUCTURE AND OTHER PUBLIC FACILITIES ...............30
5.1 Owner Obligations...................................30
5.1.1 Lack of Jurisdiction Cooperation ..............31
5.2 Funding.............................................31
5.3 Public Financing Plan...............................31
5.4 Financial Assurances for Performance ................32
5.5 Storm Drain and Other Facilities Beyond Needs of
Project.............................................32
5.6 Drainage Fees.......................................32
5.6.1 Payment Upon Recordation of Final Maps ........32
II1 Aera\Diamond Bar%Preannex&Deve1Agt:07/98/06
5.6.2 Excluded Areas................................33
5.6.3 Drainage Fee Credit ...........................33
5.7
Flood Control.......................................33
5.8
Grading.............................................33
5.9
Intentionally Deleted...............................34
5.10
City Park Sites and Other Public Infrastructure
Maintenance.........................................34
5.11
Utilities...........................................34
5.12
Intentionally Deleted
5.13
Intentionally Deleted...............................36
5.14
City Pipeline Franchise .............................36
6. IMPLEMENTATION OF THIS AGREEMENT .........................36
6.1 Processing and Approvals ............................36
6.2 Environmental Review................................37
6.3 Design Reviews......................................37
6.4 Time Frame for City Review ..........................37
6.5 Building and Grading Permits ........................38
6.6 Other Governmental Permits ..........................38
6.7 Eminent Domain Powers...............................38
6.8 Cooperation in the Event of Legal Challenge .........39
7. STATEMENT OF COMPLIANCE..................................39
8. DEFAULT..................................................39
8.1 Events of Default...................................39
8.1.1 Breaches by Owner .............................39
8.1.2 Breaches by City..............................40
8.1.3 Breaches by Both Owner and City ...............40
8.2 Procedure Upon Default..............................40
8.2.1 Termination of Agreement ......................40
8.2.2 Default by Owner..............................40
8.2.3 Default by City...............................41
8.2.4 Rapid Dispute Resolution..........................................................42
9. ENCUMBRANCES AND RELEASE ON PROPERTY .....................44
9.1 Discretion to Encumber..............................44 n
9.2 Mortgagee Rights and Obligations ....................44
9.2.1 Right to Cure.................................44
9.2.2 Extended Cure Period ..........................45
9.2.3 Superior Lien.................................46
9.2.4 No Impairment of Lien .........................46
9.2.5 Election to Assume Obligations ................46
9.2.6 Request to Modify .............................46
9.3 Releases............................................47
9.4 Termination of Agreement with Respect to Individual
Residential Lots Upon Sale to Public ................47
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10. MISCELLANEOUS PROVISIONS.................................47
10.1
Rules of Construction...............................47
10.2
Entire Agreement, Waiver and Recorded Statement .....47
10.3
Incorporation of Recitals ...........................48
10.4
Consent.............................................48
10.5
Covenant of Cooperation .............................48
10.6
Delay, Extension of Time for Performance ............48
10.7
Applicable Law; Severability; Forum; Service of
Process; Attorneys' Fees ............................48
10.8
Time of Essence.....................................49
10.9
Estoppel Certificate................................49
10.10
Nonliability of City Officers and Employees ........So
10.11
Nonliability of Owner Officers and Employees .......50
10.12
Covenant Against Discrimination ....................50
10.13
Modification or Amendments .........................50
10_14
Successors and Assigns .............................50
10.15
Separate Counterparts..............................50
10.16
Agreement Negotiated...............................51
10.17
Captions...........................................51
10.18
Notices............................................51
11. EXHIBITS.................................................52
V Aera\Diamand Bar\Preannex&Deve1Ag1:07I18/06
PREANNEXATION
AND
DEVELOPMENT AGREEMENT
BETWEEN
THE CITY OF DIAMOND BAR
AND
AERA ENERGY LLC.
THIS PREANNEXATION AND DEVELOPMENT AGREEMENT ("Agreement")
is entered into this day of , 2006, between THE CITY
OF DIAMOND BAR, a Municipal Corporation and a General Law City,
organized and existing under the Jaws of the State of California
("City"), and Aera Energy LLC, a California limited liability
company ("Owner"), with regard to the following recitals and
facts:
RECITALS
A. Owner has an equitable and legal interest in the form
of a fee interest in certain parcels of real property ("AERA
Property") consisting of approximately three thousand (3,000)
acres, of which:
(i) Approximately ( ) acres ("AERA
Orange County Property") are located within the unincorporated
area of the County of Orange ("Orange County");
(ii) Approximately ( ) acres
("AERA L.A. County Property") are located in the unincorporated
area of the County of Los Angeles ("L.A. County"). A legal
description of the AERA Property is attached hereto as Exhibit
"A". A legal description of the AERA Orange County Property ib
attached hereto as Exhibit "A-111. A legal description of the
AERA L.A. County Property is attached hereto as Exhibit "A-211.
That portion of the AERA L.A. County Property described on
Exhibit "A-3" attached hereto is within City's sphere of
influence (the "AERA Diamond Bar Property"). A map identifying
the location of the AERA Property is attached hereto as Exhibit
"B"
B. To strengthen the public planning process, encourage
private participation in comprehensive planning and reduce the
public and private economic risks of development, the
Legislature of the State of California adopted Sections 65864,
et seq. of the Government Code, which authorize City and an
owner of real property to enter into a development agreement,
establishing certain development rights and criteria for
development of real property. City and Owner intend that this
Agreement will provide for the orderly development of the AERA
1 AeraUamond Bar\Preannex&Deve1Agt:07/18/06
Diamond Bar Property in accordance with the objectives set forth
in the currently adopted General Plan, and the "Specific Plan"
(defined in Section 1.46 below). Moreover, City and Owner
intend that this Agreement eliminate uncertainty in planning
for, and securing orderly development of, the Project, assure
progressive installation of necessary improvements, provide for
public services appropriate to each stage of development of the
Project, ensure attainment of the maximum efficient utilization
of resources within City, and otherwise achieve the goals and
purposes of Government Code Sections 65864 et seq.
C. City enters into this Agreement pursuant to the
provisions of Sections 65864, et seq. of the California
Government Code. Pursuant to California Government Code Section
65865(c), City has adopted Resolution No. , and Rules and
Regulations establishing procedures and requirements for
consideration of development agreements.
D. California Government Code Section 65865(b) permits
City to enter into a development agreement with regard to real
property within City's sphere of influence provided that the
real property is timely annexed to City. Owner desires to annex
the AERA Diamond Bar Property to the City and to develop all
such property within the jurisdiction of City. Owner wishes to
do so, however, only if it is provided assurance that City will
permit such development in accordance with the terms and
conditions set forth in this Agreement and the Specific Plan.
E. Owner owns, maintains, and operates approximately
( ) active oil wells and oil operations on
the AERA Property. In accordance with Section-3.3, it is the
intent of the parties that Owner's economic burden with respect
to the taxes, fees and charges Owner is paying to the County
with respect to its Oil Facilities, oil operations and any
abandonment and remediation costs related to the AERA Diamond
Bar Property shall not increase, and indeed may decrease over
time, as a result of the annexation of the AERA Diamond Bar
Property to City.
F. In order to avoid any misunderstandings or disputes
which may arise from time to time between Owner and City
concerning the proposed development of the AERA Diamond Bar
Property, and to assure each party of the intention of the other
as to the processing of any land entitlement which now or
hereafter may be required for such development, and in order to
avoid any misunderstandings or disputes relating to annexation
and attendant development matters, the parties believe it is
desirable to set forth their intention and understanding in this
Agreement. Further, this Agreement shall be used as the basis
2 Aera\Diamond BaAPreannex&Deve1Agt:07/18/06
for the decision of the City Council of City to approve the
annexation of the AERA Diamond Bar Property and the decision of
Owner to consent to such annexation.
G. Owner has created the Specific Plan, which includes
development of the ( } number of market
rate residential units and two hundred thousand (200,000) square
feet of entertainment/commercial development set forth in
Section 4.2 below as the principal land use, including detailed
regulations, conditions and programs for development of the AERA
Diamond Bar Property and for the phased development thereof with
complete utilities, public streets, storm drains and all other
necessary infrastructure and public facilities for such
development, which development shall all take place pursuant to
the Specific Plan (collectively referred to herein as the
"Project"). Owner has agreed to provide the Public Benefits, in
reliance on City permitting Owner to construct on the AERA
Diamond Bar Property the number of market rate residential units
and number of square feet of entertainment/ commercial
development set forth in Section 4.2 below, which can be reduced
by City only pursuant to specific provisions of this Agreement.
H. Portions of the AERA Property.contain certain
sensitive species of wildlife and habitat afforded protection
under the Federal Endangered Species Act and State Endangered
Species Act. Owner has agreed to undertake various conservation
and mitigation measures in order to enhance protection of the
environment. Pursuant to the Habitat Conservation Plan ("HCP""),
entered into by Owner, Owner has agreed to set aside
approximately ( ) acres of the AERA
Property for wildlife and habitat preservation and conservation
of the California Gnatcatcher, and other species as identified
in the HCP. Development originally proposed for the areas
identified for habitat preservation and restoration in the HCP
has been re -allocated to other portions of the Project
development areas. As a result, the Project provides for a
total of approximately ( ) acres of
open. space ("Open Space"). All of the foregoing are more
particularly described in the Specific Plan.
I. intentionally Deleted.
J. Intentionally Deleted.
K. To accommodate the phased development of the market
rate residential units and the entertainment/commercial square
footage set forth in Section 4.2 below and the oil field
abandonment and remediation, it is necessary that the
infrastructure for the Project, including offsite mitigations
3 Aera\Diamond Bar\Preannex&Deve1Agt:07118/06
described in the EIR be constructed in phases, which phased
construction is described in the "Project Phasing Plan" (defined
in Section 1.34 below).
L. Implementation of the Specific Plan will result in the
creation of a physical, social, and fiscal environment which
will conform to and complement the goals of City, create a
residential and commercial shopping center environment sensitive
to human needs and values, and protect adjacent land uses from
adverse impacts, consistent with the policies and elements of
the City General Plan.
M. Pursuant to the California Environmental Quality Act
("CEQA"), City prepared and circulated an Environmental Impact
Report ("EIR") to analyze the environmental effects which would
be caused by the Project. On , 200 City certified
that the EIR was adequate, that it satisfied the requirements of
CEQA, the CEQA Guidelines and applicable City Regulations, and
that it fully and adequately described the Project.
N. This Agreement will allow City to provide ingress and
egress to certain real property that the City is in escrow to
acquire, realize public facilities and economic, open space,
conservation and preservation benefits, as more fully described
in Section 1.36 below ("Public Benefits"). Many of the Public
Benefits identified as consideration to City for entering into
this Agreement are of regional significance, require Owner to
contribute a greater percentage of benefits than would otherwise
be required, and represent benefits which would not otherwise be
provided but for this Agreement.
O. Because of the complexities, interrelationships and
costs of abandoning and remediating the oil operations on the
AERA Diamond Bar Property, the cost of financing of the
infrastructure, the cost of providing the Public Benefits, and
generally developing the Project in phases, certainty in the
development process is an absolute necessity. The phasing,
timing, and development of public infrastructure, conveyance, in
the form of oil field abandonment and remediation, necessitate a
significant commitment of resources, planning, and effort by
Owner for the public facilities financing, construction, and
conveyance, in the form of dedication, to be successfully
completed. In return for Owner's participation and commitment
to these significant contributions of private resources for
public purposes, City is willing to exercise its authority to
enter into this Agreement and thereby permit certain development
rights to vest, and will cooperate with Owner to secure public
financing for various components of the Project, as described in
the Project Phasing Plan, in accordance with the process
4 Aera\Diamond Bar\Preannex&Deve1Agt:07/18/06
described in the "Public Financing Plan" (defined in Section
1.39 below).
P. In consideration of Owner's agreement to provide the
Public Benefits, City intends to and by this Agreement does give
to Owner assurances that it can proceed with development of the
AERA Diamond Bar Property in accordance with City's "Land
Regulations" (defined in Section 1.21 below), the Project
Phasing Plan, and the Specific Plan. Owner would not enter into
this Agreement or agree to provide the Public Benefits and
improvements described in this Agreement if it were not for the
commitment of City that the AERA Property can be developed in
accordance with the General Plan, Specific Plan, and this
Agreement.
Q. Owner is not aware of any circumstances or conditions
which would prevent, hinder or delay Owner's performance of
Owner's obligations hereunder. City is not aware of any
circumstances or conditions which would prevent, hinder or delay
(i) City's performance of City's obligations hereunder, or (ii)
Owner's full and timely realization of the essential rights
bargained for by Owner in this Agreement.
R. This Agreement constitutes an exercise of City's
police powers and is intended to provide certainty to Owner in
the development approval process by vesting the permitted
uses(s), density, intensity of use, and the timing and phasing
of development as described in the Project Phasing Plan and the
Specific Plan, in exchange for Owner's commitment to provide,
pursuant to the terms of this Agreement, the Public Benefits to
City.
S. The terms and conditions of this Agreement have
undergone extensive review by Owner, the City Planning
Commission, the City staff, and the City Council of City, and
they each have found the Agreement to be fair, just and
reasonable.
T. On the following dates the Planning Commission of
City, the hearing body for purposes of Development Agreement
review pursuant to Government Code Section 65867, at duly
noticed public hearings and following appropriate environmental
review, adopted the following resolutions: (i) on ,
Resolution No. recommending to the City Council
certification of the final EIR; (ii) on ,
Resolution No. recommending to the City Council adoption of
the Specific Plan, with conditions; (iii) on ,
Resolution No. recommending to the City Council approval of
pre -annexation Zone Change to "PC" (Planning Community)
5 AeraUamond BarlPreannex&Deve1Agt:07118106
for the AERA Property, with conditions; (iv) on
Resolution No. recommending to the City Council approval
of Tentative Tract Map with conditions; and (v) on
Resolution No. recommending that
the City Council approve this Agreement.
U. On following a duly noticed public
hearing held on , and following appropriate
environmental review, the City Council adopted Ordinance
No. approving this Agreement, finding that the
Agreement is consistent with City's General Plan and the
Specific Plan, and authorizing the execution of this Agreement.
Ordinance No. shall be effective on
NOW, THEREFORE, City and Owner agree as follows:
1. DEFINITIONS. The following terms used in this
Agreement, unless the context otherwise requires, shall have the
following meanings:
1.1. "Agreement" shall mean this Development
Agreement, including the Exhibits attached hereto as referenced
in Section 11 of this Agreement.
1.2 "Agreement Date" shall mean
the effective date of Ordinance No.
Agreement.
, 200_,
approving this
1.3 "Bond" shall have the meaning set forth in the
Public Financing Plan.
1.4 "CEQA"" shall mean the California Environmental
Quality Act, California Public Resources Code Sections 21000 et
seq. and all applicable regulations.
1.5 "City" shall mean the City of Diamond Bar,
California.
1.6 "Conceptual Grading Plan" shall mean that certain
grading plan prepared by Hunsaker & Associates Irvine, Inc.,
dated , prepared for the Project, which is an
exhibit to the Specific Plan.
1.7 Intentionally Deleted.
1.8 "Conservation Easement" shall have the meaning
set forth in the HCP.
6 AeralDiamond Bar`Preannex&Deveftt:07118106
1.9 Intentionally Deleted.
1.10 "District" shall mean any special purpose
district created pursuant to one of the statutory authorities
described in Section III of the Public Financing Plan, and
empowered to levy taxes or assess for capital items and/or
services.
1.11 "EIR'" shall mean that certain Environmental
Impact Report prepared in connection with the adoption of the
Specific Plan. The EIR includes, without limitation, a draft
environmental impact report dated , 200 , the
Mitigation Monitoring Program prepared in connection therewith,
and a final environmental impact report and response to comments
dated , 200_, and any initial studies, reports,
attachments, addenda and supplements prepared in connection with
the EIR.
1.12 Intentionally Deleted.
1.13 Intentionally Deleted.
1.14 Intentionally Deleted.
1.15 Intentionally Deleted.
1.16 '"HCP"" shall mean that certain Habitat
Conservation Plan, in all material respects in the form dated
and a document footer dated ,
between Owner and the United States Fish and Wildlife Service
( "USFWs") .
1.17 Intentionally Deleted.
1.18 "Impositions" shall mean taxes, assessments,
fees, and other charges imposed by City having an economic
burden on Owner, including without limitation dedications of
land and/or the provision of facilities and/or improvements.
1.19 "LAFCO" shall mean the Los Angeles County Local
Formation Commission, as set forth in Section 3.1..2 below'.
1.20 "Land Regulations" means the General Plan,
Specific Plan, and all of those ordinances, resolutions, codes,
rules, regulations, and official policies (City Council,
Administrative and Planning Commission) of City governing the
development and use of the AERA Diamond Bar Property in effect
as of the Agreement Date, including, without limitation, the
permitted uses of the AERA Diamond Bar Property, the density or
7 AeraUarnond BarlPreannex&Deve1Agt:07/18/06
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
development of the AERA Diamond Bar Property. City has
delivered to Owner a set of certified binders ("Land Regulation
Binders") entitled "Land Regulations for AERA Diamond Bar
Property" dated as of , which include all of the
Land Regulations, as of the Agreement Date, which are to govern
the development and entitlement process for the Project,
including Project Approvals on the AERA Diamond Bar Property.
City and Owner agree that Uniform Codes, such as the Uniform
Building Code, which as of the Agreement Date have been adopted,•
and which may from time to time be amended, for general
applicability throughout City are not included in the Land
Regulation Binder. City, Owner and engineer for the Project
shall each retain one set of the certified Land Regulation
Binders.
1.21 "Mortgagee" shall mean the holder of any mortgage
or the beneficiary of any deed of trust, including an affiliate
of Owner, covering all or part of the AERA Diamond Bar Property,
including the purchaser of all or any portion of the AERA
Diamond Bar Property at a judicial or non -judicial foreclosure
sale and any person or entity who acquires title to all or any
part of the AERA Diamond Bar Property by deed -in -lieu of
foreclosure, and any of their respective heirs, successors, and
assigns, provided that such mortgage holder or beneficiary has
delivered written notice to City stating its desire to receive
notices of default hereunder pursuant to Section 9.2 below.
1.22 Intentionally Deleted.
1.23 "Notices" shall have the meaning as set forth in
Section 10.1.8 below.
1.24 "Oil Facilities" shall mean, without limitation,
all active and inactive oil and gas wells, pipes and pipelines,
oil production and processing equipment, facilities, casings,
buildings and the structures now or hereafter located on the
AERA Property which are used for removing or injecting oil, gas,
water and other substances into or from the subsurface of the
AERA Property.
1.25 "Open Space" shall mean the approximately
( ) acres of real property owned by
Owner and more particularly described in Paragraph H, above.
1.26 Intentionally Deleted.
8 Aera\Diamond Bar\Preannex&Deve1Agt:07/18/06
1.27 "Owner" shall mean Aera Energy LLC, a California
limited liability company, and its successors and assigns under
this Agreement pursuant to the provisions of Sections 2.5 and
9.2 .1 (b) below.
1.28 Intentionally Deleted.
1.29 Intentionally Deleted.
1.30 "Permitted Transferee" shall mean any person,
partnership, joint venture, corporation, or other business
entity to whom Owner may sell, transfer, or assign all or any
part of the AERA Diamond Bar Property pursuant to the terms of
Section 2.5 below.
1.31 "Project" shall mean shall mean the development
of the AERA Diamond Bar Property in the manner described in the
Specific Plan.
1.32 "Project Approvals" shall mean those certain
future approvals for the Project which shall be processed in
accordance with Article VI of this Agreement.
1.33 "Project Phasing Plan" shall mean the phasing
plan signed by City and Owner concurrently herewith indicating
their mutual acceptance, and incorporated herein by reference,
which provides for the phased construction of the Project
including all public infrastructure necessary for the
development of the Project in accordance with the Specific Plan.
1.34 "Pro Rata Basis" shall mean in connection with a
sale, assignment or transfer of all or a portion of the AERA
Diamond Bar Property to a Permitted Transferee, that portion
("Substituted Security") of the economic security which (i) is
reasonably related to the public infrastructure costs associated
with a portion of the AERA Diamond Bar Property conveyed to the
Permitted Transferee; (ii) is to be in lieu of and substituted
for that portion of the economic security posted, pledged or
otherwise provided by Owner for the benefit of City pursuant to
Section 5.4 below; and (iii) Owner has negotiated with a
Permitted Transferee to assume in writing for the benefit of
City. The amount and nature of the Substituted Security must be
reasonably satisfactory to the City Manager, provided that any
combination of the following shall be provided: (i) an
irrevocable standby letter of credit, in a form and with terms
reasonably acceptable to the City Attorney, issued by a national
banking institution; (ii) an irrevocable corporate surety bond,
in a form and with terms reasonably acceptable to the City
9 Aera\Diamond BarlPreannex&Deve1Agt07/18106
Attorney, issued by a licensed California surety company; or
(iii) cash or cash equivalents such as obligations of the United
States of America. The amount of the Substituted Security must
reasonably relate to the projected cost to install and/or
complete public infrastructure and/or Public Benefits on or
reasonably related to that portion of the AERA Diamond Bar
Property so conveyed.
1.35 "Public Benefits" shall mean the following
amenities that the Project will provide: (i) conveyance, in the
form of dedication, in fee and/or sale, at below market value,
of fee lands, and/or recordation of conservation easements to or
for the benefit of public entities of approximately
{ ) acres, (ii) the provision of
property for the purpose of constructing ingress and egress
roads to certain real property which the City is in escrow to
purchase; and (iii) the provision of a scenic corridor along the
57 Freeway adjacent to the AERA Diamond Bar Property.
1.36 "Public Benefit Sites" means all Open Space.
1.37 "Public Financing" shall mean the capital
financing raised through the issuance of Bonds or other public
financing mechanisms pursuant to the terms of one or more
statutes described under the heading "Public Financing Law" in
the Public Financing Plan.
1.38 "Public Financing Plan" shall mean the plan
signed by City and Owner concurrently herewith indicating their
mutual acceptance, and incorporated herein by reference, which
provides for Public Financing.
1.39 Intentionally Deleted.
1.40 Intentionally Deleted.
1.41 "Reserved Authority" shall mean the City's right
to be exercised, if at all, pursuant to this Agreement to adopt
Uniform Codes pursuant to Section 4.5 below.
1.42 Intentionally Deleted.
1.43 Intentionally Deleted.
1.44 Intentionally Deleted.
1.45 "Specific Plan" means the Aera Specific Plan/
Master Planned Community/Aera Diamond Bar Planned Community
Zoning Ordinance approved by City and Owner and incorporated
10 AeraUamond Bar\Preannex&Oeve1Agf:07/18/06
herein by reference, which includes acknowledgement of this
Agreement as a pre -annexation zoning agreement pursuant to
Government Code Sections 65859, 65865 and 65865.3.
1.46 "Substituted Security" shall have the meaning set
forth in Section 1.35 above.
1.47 Intentionally Deleted.
1.48 "Aera Diamond Bar Property" means that portion of
the AERA Property that is described in Exhibit "A-311.
1.49 "AERA Orange County Property" means that portion
of the AERA Property now located within the unincorporated area
of Orange County and which is described in Exhibit "A-111.
1.50 "AERA L.A. County Property" means that portion of
the AERA Property now located in the unincorporated area of L.A.
County and which is described in Exhibit 11A-2
1.51 "AERA Property" means the AERA L.A. County
Property, AERA Orange County Property, and the AERA Diamond Bar
Property on which the Project will be constructed, which
aggregate real property is legally described in Exhibit "A",
attached hereto.
1.52 "Transferred Property" shall mean that portion of
the AERA Diamond Bar Property sold, assigned or conveyed to a
Permitted Transferee.
1.53 "USFWS" means the United States Fish and Wildlife
Service.
1.54 Additional Defined Terms. To the extent that any
capitalized terms contained in this Agreement are not defined
above, then such terms shall have the meaning otherwise ascribed
to them in this Agreement.
2. GENERAL PROVISIONS.
2.1 Binding Effect of Agreement. All of the AERA
Diamond Bar Property shall be subject to this Agreement. Until
released pursuant to the provisions of this Agreement or until
this Agreement is terminated pursuant to its terms or until
Owner has fully performed its obligations arising out of this
Agreement, the burdens of this Agreement shall be binding upon,
and the benefits of this Agreement shall inure to, all
successors in interest to the parties to this Agreement, and
shall constitute covenants which shall run with the AERA Diamond
11 Aera\Diamond BaAPreannex&Deve1Agt:07/18/06
Bar Property, and in order to give notice thereof, this
Agreement shall be recorded in accordance with applicable law.
Subject to extension by the mutual agreement of Owner and City,
on thirty (30) days, written notice from Owner to City or City
to Owner given, if at all, after , this
Agreement shall terminate ab initio and be of no further force
or effect unless all of the following shall have occurred on or
before (i) annexation of portions of the AERA
L.A County Property to City shall have occurred and all
applicable statutes of limitations for a referendum to qualify
for the ballot and judicial challenge to be filed which can
challenge the annexation shall have run without any such
referendum having qualified for the ballot or judicial challenge
having been filed; (ii) Owner shall have secured "will serve"
letters from all applicable utility companies for not less than
the maximum permitted number of residential units to be
constructed on the AERA Diamond Bar Property; and (iii) Owner
and USFWS have executed a binding HCP in all material respects
in the form dated If this Agreement so
terminates, City shall deliver to Owner a Notice of Termination
of Development Agreement, in recordable form, and otherwise in
form and content reasonably satisfactory to Owner in order to
clear record title of the AERA Diamond Bar Property from the
encumbrance of this Agreement. Notwithstanding the foregoing,
except as set forth below, all of the terms and conditions of
this Agreement shall be operative as of the Agreement Date;
however, Owner and City shall not be obligated to fulfill any of
their respective covenants hereunder and the term of this
Agreement shall not commence to run unless and until all of the
following have occurred: (a) portions of the Aera L.A. County
Property have been annexed to City, which in no event shall
occur until the condition in subsection 2.1(c) has been
satisfied; and(b) all periods of time have run within which a
referendum can qualify for the ballot or a judicial challenge
can be filed challenging all or any part of this Agreement and
no such referendum shall have qualified for the ballot and no
such judicial challenge shall have been filed. Notwithstanding
anything in this Agreement to the contrary, in the event this
Agreement is terminated pursuant to this Section 2.1, all of the
plans, agreements, and documents referenced in this Agreement
including but not limited to the Specific Plan, Project Phasing
Plan, and Public Financing Plan, shall also terminate ab initio
and be of no force or effect.
2.2 Relationship of the Parties. It is specifically
understood and acknowledged that the development of the AERA
Diamond Bar Property constitutes a private project and that the
contractual relationship between City and Owner as set forth in
12 Aera\Diamond Bar\Preannex&Deve1Agt;07118l06
this Agreement is such that Owner is an independent contractor
and not an agent of City and City is not an agent of Owner.
2.3 Duration of Agreement. The term of this
Agreement shall commence on the later of the dates described in
Section 2 . i (a) , (b) and (c) above, and the term shall be for a
period of twenty --five (25) years following the later of such
dates, unless this Agreement is earlier terminated or its term
is modified pursuant to this Section or Section 2.1 above. Such
term is reasonable in view of the difficulty of predicting with
precision the remaining life of the oil field production, time
required to abandon and remediate the oil fields and then
subsequently develop the remediated fields. If Owner has
proceeded in good faith, but has been prevented, delayed or
hindered from developing the AERA Diamond Bar Property by
circumstances beyond its control, including but not limited to
referendum, judicial injunctions, or delays caused by City,
including City imposed moratorium or City's failure to meet the
time frames set forth in Section 6.4 below, or City's breach of
its obligations hereunder, or delays caused by other local,
state or federal agencies, such term shall be extended for an
additional period equal to the period of delay caused by such
delays(s) and during the pendency of any litigation, including
judicial reference, entered into by and between City, Owner
and/or any third parties.
2.4 Life of Subdivision Maps. Pursuant to California
Government Code Section 66452.6, the term of any tentative map
for the AERA Property filed within the term of this Agreement
shall automatically be extended for the term of this Agreement.
2.5 Assignment.
2.5.1. All or Part. Owner shall have the
right to sell, transfer, and assign its rights and obligations
hereunder, in whole or in part, to a Permitted Transferee at any
time during the term of this Agreement, provided that any sale,
assignment and transfer must be pursuant to an assignment of the
interest of Owner in all or a portion of the AERA Property.
2.5.2 Assumption of Obligations. Each such
Permitted Transferee shall execute and deliver to City an
assumption agreement, in a form and with terms reasonably
acceptable to City, wherein such Permitted Transferee covenants
to observe and perform, for the benefit of Owner and City, all
of the duties and obligations of Owner contained in this
Agreement as such duties and obligations pertain to the portion
of the AERA Diamond Bar Property sold, transferred and assigned
to such Permitted Transferee. Any Permitted Transferee shall
13 Aera\Diamond Bar\Preannex&Deve1Agt:07118106
have all of the same rights, benefits, duties, obligations, and
liabilities of Owner under this Agreement with respect to the
portion of the AERA Diamond Bar Property sold, transferred and
assigned to such Permitted Transferee. Any Permitted Transferee
shall have all of the same rights, benefits, duties,
obligations, and liabilities of Owner under this Agreement with
respect to the portion of the AERA Diamond Bar Property sold,
transferred and assigned to such Permitted Transferee, provided,
however, without the prior written consent of Owner who is the
original signatory to this Agreement, no Permitted Transferee
(i) shall be entitled to enter into an amendment to this
Agreement; or (ii) be entitled to any credits or reimbursements
to which the original signatory Owner is entitled to hereunder.
If the AERA Diamond Bar Property is subdivided, any subdivided
parcel may be sold, mortgaged, hypothecated, assigned, or
transferred to Permitted Transferee for development by them in
accordance with the provisions of this Agreement.
2.5.3 Assignment of Rights. Concurrent with
any sale, assignment or transfer or within fifteen (15) business
days thereafter, Owner shall notify City in writing of such
event, the identity of the Transferred Property and the name and
address (for purposes of notices hereunder) of the Permitted
Transferee, together with the corresponding number of dwelling
units or entertainment/commercial square footage which can be
developed on the Transferred Property, and Owner and the
Permitted Transferee shall notify City which of Owner's
obligations have been assumed, including the posting of
Substituted Security. A failure of Owner to strictly comply
with this subsection shall not constitute a material breach of
this Agreement.
2.5.4 Release of Security. No sale,
assignment, or transfer to a Permitted Transferee shall be
effective under the terms of this Agreement unless and until the
Permitted Transferee satisfies all of the following: (i) at
Owner's option, either the Permitted Transferee provides to City
Substituted Security reasonably satisfactory to the City Manager
which secures performance of the Permitted Transferee's monetary
obligations associated with the Transferred Property, or Owner
provides written notice to City that Owner's security is not
being substituted and shall remain in place; and (ii) the
Permitted Transferee executes and delivers the assumption
agreement referenced in Section 2.5.2, assuming those of Owner's
other obligations hereunder with regard to the Transferred
Property, as identified in such assumption agreement. Upon the
satisfaction of the above conditions, Owner's obligations
hereunder with regard to the projected public infrastructure
costs appurtenant to the Transferred Property, including
14 AeraUamond B2APreannexBDeve1Agt:07118I06
security if substituted, shall be released on a Pro Rata Basis
with regard to the Transferred Property. With regard to the
Transferred Property only, after such release, City shall look
solely to the Permitted Transferee for compliance with the
provisions of this Agreement, as such provisions relate to the
Transferred Property acquired by such Permitted Transferee.
2.5.5 Defaults. If Owner or the owner of the
Transferred Property defaults under this Agreement, such default
shall not constitute a default by the owner of any other portion
of the AERA Diamond Bar Property hereunder (including, but not
limited to, Owner) and shall not entitle City to terminate or
modify this Agreement with respect to such other portion of the
AERA Diamond Bar Property or the owner thereof who is not in
default.
2.6 Amendment of Agreement.
2.6.1 Amendment of Agreement. This Agreement
may be amended from time to time by mutual written consent of
the parties or, except as otherwise provided in Section 2.5.2
above, their successors in interest, in accordance with
California Government Code Sections 65867, 65867.5 and 65868.
2.6.2 Minor Amendments. Owner and City
acknowledge that refinements and further development of the
Project may demonstrate that changes are appropriate with
respect of the details and performance of the parties under this
Agreement. Owner and City desire to retain a certain degree of
flexibility with respect to the details of the Project and with
respect to those items covered in general terms under this
Agreement. If and when the parties find that changes or
adjustments are necessary or appropriate to further the intended
purposes of this Agreement, including modifications to the
Specific Plan, and to any agreements or other documents referred
to herein, they may, unless otherwise required by law,
effectuate such changes or adjustments through operating
memoranda mutually approved by the parties, which, after
execution, shall be attached hereto as addenda and become a part
hereof, and may be further changed and amended from time to time
as necessary, with further approval by City and Owner. Unless
otherwise required by law, no such changes or adjustments or
further changes or amendments shall require prior notice or
hearing. By way of example, any amendment to this Agreement
which does not relate to (i) the term of this Agreement; (ii)
permitted uses of the AERA Diamond Bar Property; (iii)
provisions for reservation or dedication of land; (iv)
conditions, terms, restrictions, or requirements for subsequent
discretionary actions; (v) the density or intensity of use of
15 AeralDiamond BarlPreannex&Deve1Agt:07118/06
the AERA Diamond Bar Property; (vi) the maximum height or size
of proposed buildings; (vii) monetary contributions by Owner; or
(viii) non -substantial deviations from the Specific Plan and
tentative maps including with respect to the location and size
of streets, buildings, and other physical facilities, shall not,
except to the extent otherwise required by law, require notice
or public hearing before City and Owner may execute an amendment
hereto and shall be considered minor amendments to this
Agreement and/or the Specific Plan.
2.6.3 Assuming Permitted Transferee. Where a
portion of Owner's rights or obligations have been transferred
to a Permitted Transferee and an assumption agreement has been
executed in connection therewith, the signature of the Permitted
Transferee shall not be required to amend this Agreement unless
such amendment would materially alter the rights or obligations
of such Permitted Transferee hereunder; provided, however, that
any such Permitted Transferee shall be provided with thirty (30)
days' prior written notice of any amendment to this Agreement.
No Permitted Transferee shall be entitled to amend this
Agreement without the written consent of the entity which is the
named Owner or its affiliate in the introductory paragraph of
this Agreement.
2.6.4 Non -Assuming Permitted Transferees. In
no event shall the signature or consent of any person or entity
who does not execute an assumption agreement for the benefit of
City be required to amend this Agreement.
2.7 Concurrent Approvals. To further achieve the
mutual goals of City and Owner, the City Council, on
adopted Resolution No. , approving
Tentative Map No. for the division of the AERA
Diamond Bar Property for financing and conveyance purposes
finding that all arterial roads provided for in the Specific
Plan and finding that the Specific Plan, due to its provision of
a wide range of housing opportunities, is consistent with the
Housing Element of the General Plan.
3. ANNEXATION AND PREZONING.
3.1 Annexation.
3.1.1 Owner Institutes. Prior to the
Agreement Date, Owner, with the cooperation of City, has
instituted, and Owner and City shall cooperate to diligently
pursue .to completion, all necessary proceedings for the
annexation of the AERA Diamond Bar Property described in Exhibit
"A--3" to City as an uninhabited annexation under the Municipal
16 Aera\Diamond Bar\Preannex&Deve1Ag#;07/18/06
Organization Act of 1977 (California Government Code Elections
35000 et seq., or under the District Reorganization Act of 1965
(California Government Code sections 56000 et seq.) Annexation
of the AERA Diamond Bar Property shall be completed no later
than the date specified in Section 3.4.2 below. Owner agrees to
pay for all filing costs and administrative fees relating to the
annexation.
3.1.2 Owner Cooperation. Owner shall give
all necessary approvals, written consents, and any other
requested assistance to accomplish such annexation, and
specifically agrees not to protest such annexation, before the
Los Angeles County Local Formation Commission (collectively,
"LAFCO") or the City Council of City so long as the annexation
is consistent with the terms and conditions of this Agreement
and no conditions or burdens are placed on all or any part of
the AERA Diamond Bar Property which are not applicable to all
other property which is now within the jurisdiction of City,
except as may be provided in this Agreement or otherwise agreed
to by Owner and City.
3.1.3 Mutual Cooperation. Each party hereto
also will support and cooperate with the other in any manner
reasonably required to facilitate completion, of annexation of
the AERA Diamond Bar Property.
3.2 Prezoning. City certifies that as of the
Agreement Date, the Specific Plan fully meets the requirements
of Chapter , Article Planned Community (PC) Zone of the
City of Diamond Bar Zoning Ordinance then in effect, including
but not limited to Sections through of
Article and all other ordinances and codes applicable to said
Article and, as a consequence of such certification and the
provisions of this Agreement, becomes the sole zoning ordinance
together with such other codes and ordinances specifically set
forth in the Land Regulations Binders applicable to
implementation of the Project as provided for in this Agreement.
City further certifies that the Specific Plan serves as a
binding pre -annexation zoning agreement consistent with the
provisions of Government Code Sections 65859 and 65865.
3.3 Oil Well Production Taxes and Related Fees and
Charges. A material inducement to Owner to agree to annex to
City the AERA Diamond Bar Property is the agreement of City
hereby made that following annexation Owner shall be entitled to
continue the full operation and enjoyment of the Oil Facilities
and that City shall not increase the economic burden to Owner
over the economic burden now paid by Owner to L.A. County as a
result of the existence operations, ownership, abandonment or
17 Aera\Diamond Bar\Preannex&DevelAgt:07118106
remediation of the Oil Facilities thereon. In accordance with
the foregoing, and in consideration of the City's receipt of the
Public Benefits, City hereby agrees that following annexation of
the AERA Diamond Bar Property to the City, Owner Shall be
entitled to continue the full beneficial use and operation of
all Oil Facilities and City waives and agrees not to impose
City's oil well production taxes on the Oil Facilities located
on the AERA Diamond Bar Property, or any other fees, licenses or
inspection fees including any abandonment and/or remediation
permit fees, or transmission pipeline franchise fees or taxes
which current or future City ordinances, rules or regulations
would otherwise permit or require to be imposed or assessed
against Owner, the AERA Diamond Bar Property, the Oil Facilities
thereon, with the result that upon annexation and thereafter
with regard to the AERA Diamond Bar Property, Owner will not
suffer or pay any amount to City which is additive to or of a
different character or is in excess of the amount which, on the
Agreement Date, Owner would be obligated to pay to L.A. County
in connection with the existence, operation or ownership of the
Oil Facilities on all or any part of the AERA Diamond Bar
Property, only the existing Land Regulations shall govern.
Notwithstanding the foregoing, Owner shall abandon and
remediate, as necessary, portions of the AERA Diamond Bar
Property in accordance with all applicable law with regard to
proposed land uses.
3.4 Timing.
3.4.1 Recordation of Agreement. This
Agreement shall be recorded pursuant to the requirements of
Government Code Section 65868.5. Pursuant to Government Code
Section 65865(b), this Agreement shall be null and void unless
the Aera Diamond Bar Property is annexed to City within the time
periods prescribed in Section 3.4.2 below, plus upon City and
Owner's mutual agreement, an amount of time equal to the time
during which annexation is delayed (or if it becomes effective,
is later voided) due to any litigation or referendum related to
annexation, the Project, this Agreement, or Project Approvals,
including litigation or a referendum pending on the Agreement
Date. Notwithstanding the occurrence of any such circumstances,
the Land Regulations in effect on the Agreement Date shall be
the only statutes, ordinances, rules and regulations which
govern the development of the Project, except as otherwise
expressly provided herein.
3.4.2 Annexation Timin
Bar Property shall be annexed to City on
In the event that LAFCO
annexation of such property to City on or
g. The AERA Diamond
or before
has not approved the
before
18 AeralDiamond Bar\Preannex&Deve1Agt:07/18/06
upon thirty (30) days' written notice from City to Owner or
Owner to City, this Agreement shall be null and void.
3.5 California Environmental Quality Act. City
hereby certifies that the final EIR for the Specific Plan meets
the requirements for exemption from CEQA as set forth in
Government Code Section 65457 in effect on the Agreement Date.
City further hereby certifies that the final EIR is a program
EIR for purposes of CEQA Guidelines Section 15168 and as such is
meant to invoke those provisions, the provisions of Public
Resources Code Section 21068.5 relating to "tiering" of further
CEQA review and Public Resources Code Section 21080.7 and
Government Code Section 65457 regarding future CEQA review of
residential components of the Project and that City will take
such reasonable actions as are required to assist in assuring
that the Project will be able to qualify under the provisions of
these statutes or such other comparable statutes as may be
applicable to implementation of the Project.
4. DEVELOPMENT OF THE AERA PROPERTY.
4.1 Vested Right to Develop. Subject to all of the
terms and conditions of this Agreement, Owner shall have the
vested right, to the fullest extent allowed under the California
Development Agreement statute (California Government Code
Sections 65864 et seq.) to develop the Project on the AERA
Diamond Bar Property in accordance with this Agreement. Except
as may otherwise be required by this Agreement, or any of the
other plan and agreements referred to and incorporated herein by
reference, (i) Owner shall not be required to initiate or
complete development of any particular phase of the Project,
including infrastructure, within any period of time; (ii) Owner
shall develop the AERA Diamond Bar Property, including
infrastructure, in accordance with Owner's own time schedule as
such schedule may exist from time to time; and (iii) Owner may
determine which part of the Project shall be developed during
each phase of the Project. By entering this Agreement, Owner
shall not be obligated to build any homes or entertainment/
commercial improvements or make any other improvements,
including infrastructure, or otherwise develop the AERA Diamond
Bar Property.
4.2 Vested Dwellinq Unit Entitlement. In
consideration of the Public Benefits, subject to the terms and
conditions of this Agreement, Owner is hereby granted the vested
right to develop on the AERA Diamond Bar Property
( ) market rate residential units and
{ ) square feet of entertainment/restaurant/retail
improvements.
19 Aera\Diamond BarlPreannex&Deve1Agt:07118106
4.3 Permitted Use. Owner is hereby vested with the
right to develop the AERA Diamond Bar Property with respect to
the uses and requirements of the Zone and Zone
established by the Land Regulations and Specific Plan, the uses
and standards of development, approval of tentative maps, the
density and intensity of use(s), the maximum height, bulk and
size of proposed homes and other structures, provisions for
reservation or dedication of land for pubic purposes and
location of public improvements, construction standards and
specifications applicable to the Project, location of public
utilities and phasing of development, including infrastructures
and other terms and conditions of development applicable to the
AERA Diamond Bar Property, as set forth in this Agreement.
4.4 Application Rules, Regulations and Policies.
Owner shall have the vested right to develop the AERA Diamond
Bar Property subject to the terms of this Agreement, including
the Land Regulations set forth in the Land Regulation Binders
governing the AERA Diamond Bar Property and the Specific Plan.
Notwithstanding the foregoing, Owner and City may mutually agree
in writing that the Project will be governed by particular later
enacted Land Regulations. No City Department heads are, or
within the twelve (12) month period preceding the Agreement Date
have been (and they are not aware that any other City employee
or consultant has been) in discussions with representatives of
any federal, state or county governmental entity regarding the
enactment of any law which if enacted, would be in conflict with
Owner's rights hereunder or under any Land Regulations.
4.5 Exception for Uniform Codes. The provisions of
Section, 4.4 shall not govern the application to the Project of
the Uniform Building Code and other applicable uniform
construction codes.
4.6 Development, Construction and Completion of
Project. In consideration of Owner providing the Public
Benefits, Owner has been legally vested with the rights set
forth in Sections 4.1, 4.2, 4.3 and 4.4 above. Owner shall be
issued building permits for phases of development after: (i)
permit applications are reviewed and approved by City under the
Land Regulations; (ii) Owner provides City with the appropriate
financial assurances, as more fully described in Section 5.4
below, to ensure that the identified private and public
facilities will be provided; and (iii) all other conditions set
forth in the Land Regulations are satisfied which are precedent
to issuance of building permits and which as of the Agreement
Date are regularly required by City of developers within the
City. In exercising its discretion to implement the Specific
20 AeralDiamond BarTreannex&Deve1Agt:07/98/06
Plan and grant future Project Approvals necessary to implement
the Specific Plan, City shall only take action which complies
and is consistent with the Specific Plan and this Agreement.
City and Owner will use their best efforts to ensure that all
applications for future Project Approvals are sought and
processed in a timely manner and in accordance with applicable
law, including the Permit Streamlining Act, California
Government Code Section 65920 et seq.
4.7 Standards of Development and Allocation of Land
Within the Specific Plan to All Types of and Intensities of Land
Uses Identified Therein. Consistent with the provisions of the
City of Diamond Bar Zoning Ordinance Sections as in
effect on the Agreement Date, the Specific Plan defines the
standards of development and the substantive and procedural
provisions applicable to the allocation of land within the
Specific Plan for the land uses identified in the Specific Plan.
4.8 Subsequent Enactments. This Agreement shall not
preclude City, in subsequent actions applicable to the AERA
Diamond Bar Property or the Project, from applying new rules,
regulations and official policies which do not conflict with the
Land Regulations. Without limitation, any action or proceeding
of City which has any of the following effects shall be
considered in conflict with this Agreement and the Land
Regulations.
4.8.1 Limits on Density and Intensity.
Limiting or reducing the density or intensity of all or any part
of the Project, inconsistent with the Specific Plan or this
Agreement.
4.8.2 Limits on Phasing. Limiting,
constraining, or restricting in any manner the rate, timing or
phasing or accelerating the phasing of the Project, including
infrastructure, which is not expressly provided for in the
Project Phasing Plan.
4.8.3 Location of Improvements. Limiting the
location of or increasing or decreasing the size of home sates
or commercial pads or structures thereon, or requiring grading,
or other improvements on the AERA Diamond Bar Property in a
manner which is inconsistent with the Conceptual Grading Plan or
in a manner which is discriminatory.
4.8.4 Discriminatory Application of
Ordinances. Applying to the Project or the AERA Diamond Bar
Property any Land Regulations, or interpreting or enforcing any
Land Regulation in a stricter or more demanding fashion than was
21 Aera\Diamond Bar\Preannex&Deve1Agt:07/18/06
theretofore applied anywhere else within City or in a manner
which is not uniformly applied on a City-wide basis to all
development projects or project sites in City. Notwithstanding
the foregoing Owner shall not be in a position to protest, and
City shall not be in breach hereunder, in the event that any
District is created at Owner's request and is established
pursuant to understandings reached between City and Owner, if
such District affects only the AERA Diamond Bar Property, or
portions thereof.
4.8.5 Exactions. Imposing any Imposition,
requirement, condition, exaction, or other restriction on the
Project which is not expressly contained within, this Agreement,
the Specific Plan, or Land Regulations.
4.8.6 Reduction in Rights. The enactment or
imposition of any ordinance, resolution, rule, regulation,
standard, directive, condition, or other measure that is
directly or indirectly in conflict with this Agreement.
The above list of actions is not intended to be
comprehensive, but is illustrative of the types of actions that
would conflict with this Agreement and the Land Regulations.
4.9 Impositions. Owner shall be subject to and be
obligated to pay only those Impositions that are prescribed in
the Land Regulations that exist on the Agreement Date.
Notwithstanding the foregoing, the City may increase Impositions
which are provided for in the Land Regulations based on any City
wide increase in the reasonable cost to City for performing the
work for which the particular fee or charge is paid, which
increased amount will compensate the City for actual costs, as
permitted pursuant to California Government Code Section 54990
or successor statute.
4.10 Intentionally Deleted.
4.11 Intentionally Deleted.
4.12 Taxes, Fees, Charges, Conditions and Dedications.
Owner shall be obligated to pay only those Impositions
prescribed in the Land Regulations and as provided in this
Section. Except as otherwise expressly allowed in Section 4.9
and the next sentence, Impositions shall not be increased, nor
new Impositions imposed or required with respect to the
development of the Project, including any which might otherwise
result from amendments instituted by City to City's General Plan
or to the Specific Plan. Furthermore, the Impositions now
authorized by the Land Regulations shall not be modified or
22 Aera\Diamond SarlPreannex&Deve1Ag#:07/18/06
renegotiated by City as a result of any Owner -requested
amendment to this Agreement, including to the Specific Plan,
including but not limited to any change occurring by reason of a
change in any tentative or final map, or as a result of the
filing of any new subdivision or processing of any lot line
adjustment.
4.13 Reservations and Dedications.
4.13.1 Reservation of Open Space.
Reservations and dedications of land are set forth in the Parks
and Open Space Implementation Plan, which also describes the
timing and methods by which Project Open Space shall be
permanently protected through the granting of perpetual open
space easements or the dedication of open space lands to the
public in fee title.
4.13.2 No New Dedications. City shall not
impose any additional or new dedications or improvements,
whether through the exercise of the police power, the taxing
power, or any other means (other than eminent domain, which
power City retains).
4.14 Park Site (s) . The
Park Site(s) shall be the full and final requirement of Owner
for the dedication and/or payment of all in -lieu fees for park
and/or recreational sites, facilities or equipment for the
Project.
4.15 HCP. Pursuant to the HCP, Owner is obligated to
carry out certain land dedication actions and wildlife
preservation and restoration and management activities. By
entering into this Agreement, City concurs that all such actions
and activities are components of the development assurances
provided for in this Agreement and City agrees to take such
reasonable actions as may be required to carry out and implement
the HCP as provided in Section 5.12.1 below. City will
cooperate with and assist Owner in connection with any future
amendment of the HCP and its Implementation Agreement to the
extent such cooperation is reasonably related to carrying out
the provisions of this Agreement.
4.16 Intentionally Deleted.
4.17 Intentionally Deleted.
4.18 Police Power and Moratoria. In the exercise of
its police power, City shall recognize and consider the
circumstances existing at the time this Agreement was
23 Aera\Diamond Bar\Preannex&Deve1A9t:07I18106
authorized. In addition, such exercise of the police power by
City shall be consistent with the purpose and intent of the
California Development Agreement statute (California Government
Code Sections 65864 et seq.) and the objectives and intent of
this Agreement. Nothing in this Agreement shall be construed to
be in derogation of City's police power to protect the public
health and safety, or mitigate loss of, or damage to, life,
health, property, or essential public services involving the
AERA Property or the immediate community. Subject to the
foregoing circumstances, no moratorium affecting subdivision
maps, building permits, utility hook-ups (other than water) or
other land use entitlements, or the acts, timing or sequencing
thereof shall apply to any part of the AERA Diamond Bar
Property. City and Owner acknowledge that City may be
restricted in its authority to limit its police power by
contract pursuant to California Government Code Section 65864
and that the foregoing limitations, reservations, and exceptions
are intended to reserve to City all of its police power which
cannot be so limited. Subject to the foregoing, moratoria
enacted by City to protect the public health and safety, and
which are imposed on the AERA Diamond Bar Property, shall toll
the time periods for performance by Owner set forth in this
Agreement, shall serve to extend the term of this Agreement for
the period equal to the period of the moratorium and City shall
concurrently release any security held by City to ensure Owner's
performance hereunder, which security shall be replaced by Owner
within ninety (90) days following the lifting of any such
moratorium and as a condition precedent to Owner's continuation
of the benefits afforded Owner hereunder.
S. INFRASTRUCTURE AND OTHER PUBLIC FACILITIES.
5.1 Owner Obligations. Except as otherwise may be
provided in this Agreement or in the Public Financing Plan,
Project Phasing Plan, Owner shall construct, at its sole
expense, in accordance with the Project Phasing Plan and
dedicate to City without charge, all necessary infrastructure
and public facilities required to serve needs directly generated
by the Project and which are set forth in the Specific Plan.
5.1.1 Lack of Jurisdiction Cooperation. In
the event that Owner is prevented or delayed from implementing
any mitigation improvement which is required to be performed by
Owner under the EIR by the jurisdiction, including City, in
which the mitigation is to take place, Owner's lack of
performance or delay in performance with regard to such
mitigation measure shall not constitute a default by Owner
hereunder or serve as a basis for City not to perform or to
24 AeralDiamond BarlPreannex&Deve1Agt:07/18/06
delay performance of any of City's obligations hereunder or form
a basis for the City not to timely issue building permits.
5.2 Funding. To the extent that funds are made
available to City and/or could be made available to the City
upon the City's initiative, for the purpose of constructing or
performing any mitigation measures required of Owner under the
EIR, City shall apply for and diligently attempt to secure such
funds. In the event City elects not to receive such funds, or
City does receive such funds but elects not to use such funds
for such purposes, City shall, prior or concurrently with making
such election, waive Owner's obligation to construct or perform
such mitigation.
5.3 Public Financing Plan. City shall fully
cooperate with Owner in implementing the Public Financing Plan,
including the formation of one or more assessment Districts and
improvement districts as set forth in the Public Financing Plan
for the purpose of generating Public Financing to enable Owner
to pay the costs associated with the planning, design, and
construction of the public facilities and infrastructure and
habitat maintenance areas, as more fully set forth in the Public
Financing Plan.
5.4 Financial Assurances for Performance. Owner
shall provide to City surety or performance bonds, letters of
credit, set aside letters, deeds of trust, or other security, in
each instance in a form and with terms reasonably acceptable to
City or, in City's sole discretion, Owner's personal guaranty,
in a form and with terms reasonably acceptable to City, in
amounts sufficient to guarantee completion of the public
improvements required as conditions of approvals in respective
tract maps, unless Bond proceeds are available to finance the
costs of such public improvements.
5.5 Storm Drain and Other Facilities Beyond Needs of
Project. City recognizes that Owner's responsibility, as a
condition of proceeding with development of the AERA Diamond Bar
Property, to fund, construct or dedicate land for the storm
drain facilities identified in Section 5.1 above and for Public
Benefits and other facilities is not limited to facilities based
upon a need created by the Specific Plan for the AERA Diamond
Bar Property. If Owner elects to or is otherwise required
pursuant to the terms hereof, to construct oversized storm
drainage or other facilities, Owner shall be reimbursed for the
value of such oversized facilities and/or dedicated land upon
which it was constructed. Such reimbursement shall be made by
City within thirty (30) days following City's acceptance of the
storm drainage or other improvements. City shall accept the
25 Aera\Diamond Bar\Preannex&beve1A9t:07/18/06
storm drainage improvements or other improvements as and when
provided for under the Land Regulations.
5.6 Drainage Fees.
5.6.1 Payment Upon Recordation of Final Maps.
Subject to the provisions of Section 5.6.3 below, Owner shall be
obligated to make payment -to City of Master Plan Drainage Fees
only at the time that a final subdivision map records, which
fees shall be related only to the real property included within
such final map.
5.6.2 Excluded Areas. Notwithstanding any
provision of this Agreement or in the Land Regulations, no
drainage fees shall be imposed: (i) in connection with that
portion of any real property included in any final subdivision
maps from which surface water drainage will not drain toward or
into the City; (ii) with regard to the land which is not
included within the "blue boundary Lines" of any final
subdivision map.
5.6.3 Drainage Fee Credit. Owner shall
receive credits against City's Master Plan Drainage Fees in an
amount equal to the value of all design and engineering fees and
costs, plan check and inspection fees and costs of construction
incurred by Owner in constructing on and about the AERA Diamond
Bar Property of storm drain facilities. Furthermore, City shall
negotiate in good faith with Owner one or more discounted pay-
offs of the Master Plan Drainage Fees otherwise applicable to
portions of the AERA Diamond Bar Property.
5.7 Flood Control. The flood plan management
regulations of City shall be those currently required both by
L.A. County and City under the Land Regulations. Owner shall
comply with the National Pollution Discharge Elimination System
(NPDES) requirements, including the payment of any fees imposed,
as now existing or as may be imposed or increased in the future,
by City or any other governing authority, to offset City's
direct and reasonable (or such other governing body's) cost to
comply with NPDES with respect to the AERA Diamond Bar Property.
As used herein, NPDES includes any federal, state or county
successor programs or additional programs of like or similar
kind.
5.8 Grading. City shall approve grading plans on the
AERA Diamond Bar Property and shall issue grading permits which
will accommodate the Specific Plan provided that such plans are
in substantial compliance with the Conceptual Grading Plan which
is an exhibit to the Specific Plan approved by Owner and City.
26 Aera\Diamond Bar\Preannex&DevelAgt:07/18/06
In the event of any inconsistency between the provisions or
requirements of Chapter of the Diamond Bar Municipal Code,
or any amendments or modifications thereto or any successor
provisions, and the Conceptual Grading Plan, the provisions of
the Conceptual Grading Plan shall govern development of the AERA
Diamond Bar Property.
5.9 Intentionally Deleted.
5.10 City Park Sites and Other Public Infrastructure
Maintenance. City shall accept and maintain the Park Site(s),
public rights--of--way, including trails provided for in the
Specific Plan, as well as all streets, drainage facilities and
green belts within and between development units in the Project,
under one or more maintenance districts.
5.11 Utilities. City shall cooperate with Owner in
the procurement, at Owner's cost, of all necessary utility
services to the AERA Diamond Bar Property, including but not
limited to water, sanitary sewer, electrical power, gas,
telephone and cable television, whether provided by itself or
its agents, franchisees, contractors, or other entities.
5.12 Intentionally Deleted.
5.13 Intentionally Deleted.
5.14 City Pipeline Franchise. Owner shall have the
right to apply under the Land Regulations for a franchise from
City for the purpose of installing, removing, re -installation,
maintenance, repair, and use of pipeline transmission and
monitoring facilities, along with ingress and egress thereto,
under all public streets and public right-of-ways which are or
become a part of the AERA Diamond Bar Property, and City shall
timely process such application to completion.
6. IMPLEMENTATION OF THIS AGREEMENT.
6.1 Processing and Approvals. Upon submission by
Owner of all appropriate applications for permits and approvals
for the Project and payment of all appropriate processing fees
as provided in this Agreement, City shall promptly commence and
diligently complete all steps necessary to review, and if
approved to issue, the requested permits or approvals including,
but not limited to: (i) the holding of all required public
hearings and notice for such public hearings; and (ii) timely
review, consideration, and, if approved, granting of the
requested permit or approval to the extent that it complies with
this Agreement and is consistent with the Specific Plan. Such
27 Aera\Diamond BarlPreannex&Deveftt:07/18106
requested permits and approvals shall include, but not
necessarily be limited to, approvals under the Specific Plan
such as Village Plan approvals, tentative or final subdivision
maps, phased final maps, lot line adjustments, building permits,
grading plans and permits, landscape plans, wall and streetscape
plans, urban edge treatment, design review approvals, and
certificates of occupancy (the "Project Approvals"). City, at
no cost to City, also agrees to assist and cooperate with Owner
in securing any County, State, and Federal permits which may be
required in connection with development of the Project.
6.2 Environmental Review. In connection with City's
issuance of any permit or approval which is subject to CEQA,
City shall promptly commence and diligently process, all at
Owner's expense, any and all initial studies and assessments
required by CEQA, and to the extent permitted by CEQA, City
shall use the EIR and other existing environmental reports and
studies as adequately addressing the environmental impacts of
such matter or matters without requiring new or supplemental
environmental documentation. In the event further environmental
review and documentation is required, Owner shall comply with
City's procedures for payment of the cost of preparation of such
review and documentation.
6.3 Design Reviews. Prior to or concurrent with the
first subdivision tract map submission for approval for Village
I, Owner shall submit for City's approval, Community Design
Guidelines which shall establish, among other matters, a spine
street system, streetscape, entry monumentation, perimeter
fencing and walls, trails and urban edge treatment for the
Project. Application of such guidelines shall fall within the
purview of City as part of the Design Review process set forth
in the Land Regulations and the Specific Plan. Any amendments
to the approved Community Design Guidelines shall be approved by
City.
6.4 Time Frame for City Review. Provided tentative
tract map, parcel map, and precise development plan applications
are reasonably consistent with the Specific Plan, and provided
that no additional environmental review is required in
connection therewith, City shall promptly and diligently
commence and complete all processes, including issuing notices
of and holding of all required public hearings and taking final
action on Owner's applications for land use permits and
approvals within the time periods set forth in applicable law
after such application has been accepted as complete or deemed
complete pursuant to applicable law.
28 AeralDiamond BarlPreannex&Deve1A9t:07/18/06
6.5 Building and Grading Permits. Subject to the
provisions of the last sentence of this Section, upon
application by Owner after Owner has secured all permits and
approvals required therefor, City shall issue residential
building permits to Owner in quantities consistent with the
Specific Plan and Project Phasing Plan. In addition, upon
application by Owner, City shall issue site clearance permits,
rough and final grading permits, demolition permits, and grading
permits of any type required by Owner for grading operations
consistent with this Agreement.
6.6 Other Governmental Permits. Owner shall apply
from time to time for other permits and approvals as may be
required by other governmental or quasi -governmental agencies
and utility companies having jurisdiction over the Project in
connection with the development of, or provision of services to,
the Project. City shall cooperate with Owner in its efforts to
obtain such permits and approvals, and from time to time at the
request of Owner and at no cost to City, attempt with due
diligence and in good faith to enter into binding agreements
with any such entity necessary to assure the availability of
such permits and approvals or services, including joint
financing and joint use agreements, provided such agreements arc
reasonable and not detrimental to City.
6.7 Eminent Domain Powers. City shall not impose any
conditions of approval on the Project which require the
acquisition of private property (other than may be owned by an
affiliate of Owner) in order to fulfill the condition in such
circumstances where City either does not or cannot exercise its
powers of eminent domain. Nothing herein is a prejudgment of
any of the matters concerning acquisition of real property,
whether by condemnation or otherwise.
6.8 Cooperation in the Event of Legal. Challenge. If
any legal or equitable action or other proceeding is brought by
any party, governmental entity or official challenging the
validity of any provision of this Agreement, the parties shall
cooperate in defending such action or proceeding, at Owner's
expense. In the event City and Owner are unable to select
mutually agreeable legal counsel to defend such action or
proceeding, each party may select its own legal counsel, at each
party's expense. In the event of any litigation challenging the
effectiveness of this Agreement, or any portion thereof, this
Agreement shall remain in full force and effect while such
litigation, including any appellate review, is pending.
7. STATEMENT OF COMPLIANCE.
29 Aera%Diamond Bar\Preannex&Deve1Agt:07118/08
Not more than once in any calendar year, Owner may
request that City's Community Development Director provide to
Owner a written statement confirming that Owner is in compliance
with the terms and conditions of this Agreement, which statement
shall be issued, if at all, within fifteen (15) days following
Owner's request. In the event that such statement is not
delivered within such period of time, then City shall deliver to
Owner within such period of time a detailed written statement of
findings as to how, when and where Owner breached its
obligations hereunder and City's suggested remedial actions.
Failure of City to timely provide to Owner such written
statement of findings shall be deemed City's automatic and
conclusive determination that Owner is in full compliance with
Owner's obligations hereunder, and City's failure to issue such
findings or certificate of compliance shall not be deemed a
material breach of City hereunder.
8. DEFAULT.
8.1 Events of Default. A default by City or Owner,
as the case may be, under this Agreement shall be deemed to have
occurred upon the happening of one or more of the following
events or conditions:
8.1.1 Breaches by Owner. Owner shall be in
breach of Owner's obligations hereunder:
(a) If a written warranty or
representation or statement made or furnished by Owner to City
is false or proves to have been false in any material respect
when it was made.
(b) If there is a finding and
determination by City made following a periodic review under the
procedure provided for in California Government Code Section
65865.1 that upon the basis of substantial evidence Owner has
not complied in good faith with one or more of the terms or
conditions of this Agreement.
8.1.2 Breaches by City. City shall be in
breach of City's obligations hereunder:
(a) If City does not accept timely
review, or appropriately consider requested development permits
or entitlements submitted in accordance with the provisions of
this Agreement.
8.1.3 Breaches by Both Owner and City. City
and/or Owner shall, as the case may be, each be in breach of its
30 AeraUamond BarlPreannex&Deve1Agt:07118106
respective obligations hereunder if either fails to perform any
act required to be performed by it under this Agreement, or
either commits any act prohibited by it under this Agreement.
8.2 Procedure Upon Default.
8.2.1. Termination of Agreement. Upon the
occurrence of a default, the non -defaulting party shall deliver
to the other, fifteen (15) days' written notice specifying the
nature of the alleged default. In the event that such default
is not one reasonably subject to cure within such fifteen (15)
day period, the defaulting party shall not be deemed in default
in the event that the defaulting party commences to cure within
such fifteen (15) day period and diligently prosecutes such cure
to completion.
8.2.2 Default by Owner. If City alleges a
material default by Owner and alleges that Owner has not cured
the default within the applicable cure period, the following
shall occur:
(a) City shall deliver to Owner not
less than fifteen (15) days' advance written notice of the day
and time of a hearing before the City Council, the purpose of
which hearing shall be to determine whether this Agreement shall
be terminated;
(b) Owner shall have the opportunity
to appear with counsel before the City Council to present its
case on the merits of the alleged breach; and
(c) City and Owner acknowledge that,
if Owner fails to carry out its obligations under this
Agreement, City shall have the right to refuse to issue any
permits or other approvals to which Owner would otherwise have
been entitled pursuant to this Agreement and which are directly
related to such failure of the Owner to carry out its
obligations. If City issues a permit or other approval pursuant
to this Agreement in reliance upon a specified condition being
satisfied by Owner in the future, and if Owner constructs the
portion of the Project to which the permit or approval relates,
but fails to satisfy such condition, City shall be entitled to
specific performance for the sole purpose of causing Owner to
satisfy such condition. City's right to specific performance
shall be limited to those circumstances set forth above, and
City shall have no right to seek specific performance to cause
Owner to otherwise proceed with the development of the Project
in any manner.
31 Aera\Diamond BaAPreannex&Deve1Agt:07/18/06
8.2.3 Default by City. If Owner alleges a
material default by City and alleges that City has not cured
such material default within the applicable cure period, Owner
may: (i) terminate this Agreement on not less than fifteen (15)
days' written notice to City; or (ii) petition the City Council
for a hearing. Due to the size, nature, and scope of the
Project, it will not be practical or possible to restore the
AERA Diamond Bar Property to its pre-existing condition once
implementation of this Agreement has begun. After such
implementation, Owner may be foreclosed from other choices it
may have had to utilize the AERA Diamond Bar Property and
provide for other benefits. Owner has invested significant time
and resources and performed extensive planning and processing of
the Project in agreeing to the terms of this Agreement and will
be investing even more significant time and resources in
implementing the Project in reliance upon the terms of this
Agreement. It is not possible to determine the sum of money
which would adequately compensate Owner for such efforts. For
the above reasons, City and Owner agree that damages would not
be an adequate remedy if City fails to carry out its obligations
under this Agreement. In addition to all other remedies at law
(subject to the limitation set forth in Section 8.3), after
exhausting any administrative remedy before the City Council for
redress which appeal is not, in Owner's judgment, adequately
responded to, Owner shall be entitled, subject to the provisions
of Section 8.2.4, to seek writs of mandate or prohibition,
including peremptory writs and injunctive relief, including
mandatory injunctions, all without the requirement of having to
make factual showing that damages are an adequate remedy.
During the time when Owner alleges the existence of a City
default and without limiting any of its other remedies, Owner
shall not be obligated to proceed with or complete the Project
or any phase of the Project, nor to reserve, dedicate or convey
any property pursuant to this Agreement. Upon a City default,
any resulting delays in Owner's performance shall neither be an
Owner default nor constitute grounds for termination or
cancellation of this Agreement by City. Any delays resulting
from a City default, at Owner's option, shall extend the term of
this Agreement for a period equal to the length of the delay.
8.2.4 Rapid Dispute Resolution. In the
event City and Owner cannot resolve any conflict which arises
hereunder within thirty (30) days following written demand of
either party, or such longer period as the parties may agree,
then either Owner or City shall have the right to submit the
matter to a reference judge for a binding decision, in the
manner and subject to the procedures set forth in Section
8 .2 .4 (a) below.
32 AeraTiamond Bar\Preannex&Deve1Agt:07/18/06
(a) Procedures. In the event of any
dispute between Owner and City arising under this Agreement,
such dispute shall be heard by a reference proceeding from the
Orange County Superior Court pursuant to California Code of
Civil Procedure Section 638 et seq. Owner and City agree that a
single referee will try all issues, whether of fact or law, and
report a finding and judgment thereon, and issue all legal and
equitable relief appropriate under the circumstances of the
controversy before him/her. The referee may be asked to issue
orders for the settlement, cure, correction or remedy of any
default, controversy or deadlock, or to enforce any covenant or
agreement herein, to enter a judgment for damages, to issue
mandatory or prohibitory injunctions, to issue a writ of
mandamus, issue a declaration in any declaratory relief action,
or to grant any other remedies consistent wilth the purposes of
this Agreement. From the date of the filing of a complaint or
petition with respect to this Agreement until the date upon
which the one referee chosen by Owner and City agree to serve
and in fact begins serving, the Orange County Superior Court
Judge sitting as the writs and receivers judge shall be the
referee for the purposes of issuing all orders in any
proceedings hereunder. Any referee selected pursuant to this
Section shall be considered a temporary judge appointed pursuant
to Article 6, Section 21 of the California Constitution.
Immediately upon the service of a complaint, counsel for Owner
and City shall be obligated to cooperate in good faith to select
and formally retain the services of a referee, in writing,
through the services of the Judicial Arbitration and Mediation
Service. If Owner and City are unable to agree on the identity
of a referee within ten (10) days of the service of such a
complaint, either party may seek to have one appointed pursuant
to California Code of Civil Procedure Section 640. The cost of
such reference proceeding shall initially be borne equally by
the parties, but the prevailing party shall ultimately be
awarded a judgment for its share of such costs.
(b) Standard of Review. Owner is
concerned that normally the judiciary extends to local agencies
significant deference in the adoption of land use regulations
which might permit City, in violation of the Reserved Authority
and the provisions of Section 4.9 above, to attempt to apply to
the AERA Diamond Bar Property any rules, regulations or
ordinances which are inconsistent with the Land Regulations and
this Agreement pursuant to the exercise of the Reserved
Authority and the provisions of Section 4.9. Based on the
foregoing, in the event Owner judicially (including by way of a
reference proceeding) challenges the application of a future
land use rule, regulation or ordinance as being in violation of
this Agreement or as not being adopted pursuant to the Reserved
33 Aera%Diamond BarlPreannex&Deve1Agl:07118/06
Authority, the court (including by way of reference) shall
render an independent judgment, based solely on the record and
the provisions of this Agreement, that Owner shall bear the
burden of proof in establishing that such rule, regulation or
policy is inconsistent with the Land Regulations and/or the
Specific Plan, and City shall thereafter bear the burden of
proof in establishing that such regulation was adopted pursuant
to and in accordance with the Reserved Authority or Section 4.9
and was not applied by City in violation of this Agreement.
(c) Standard of Review; Alleged Owner
Default. The findings of the City Council as to the existence
of an. Owner default shall have no weight in any legal
proceeding, including by judicial reference referred to in
Section 8.2.4 above that is brought to determine the existence
of an Owner default. The validity of any termination may be
judicially, including by judicial reference referred to in
Section 8.2.4 above, challenged by Owner, in which case the
court or judge, as the case may be, must render an independent
judgment as to the existence of good cause for termination,
based solely on the administrative record and applicable law.
Termination for an Owner default may result only from a material
Owner default of a material provision of this Agreement.
9. ENCUMBRANCES AND RELEASE ON PROPERTY.
9.1 Discretion to Encumber. This Agreement shall not
prevent or limit Owner, in any manner, at Owner's sole
discretion, from encumbering the AERA Diamond Bar Property or
any portion of the AERA Property or any improvement on the AERA
Property by any mortgage, deed of trust, UCC Financing Statement
and/or fixture filing or other security device securing the
replacement of financing with respect to the AERA Diamond Bar
Property or its improvement.
9.2 Mortgagee Rights and Obligations. The Mortgagee
of the AERA Diamond Bar Property, or any part thereof, shall,
upon written request to City, be entitled to receive from City
written notification of any default by Owner of the performance
of Owner's obligations under the Agreement which has not been
cured within thirty (30) days following the date of default,
provided that the failure of City to provide such required
notice shall not constitute a material breach of this Agreement
nor shall it affect the status of such Owner default other than
that the period of time for the Mortgagee's right to cure the
default shall not begin to run until it receives such notice.
34 Aera0amond 8ar\Preannex&DeveIAgt:07/18/06
9.2.1 Right to Cure. Notwithstanding Owner's
default, this Agreement shall not be terminated by City as to
any Mortgagee to whom notice is actually given and to which
either of the .following is true:
(a) The Mortgagee cures any default by
Owner involving payment of money within ninety (90) days after
Mortgagee's receipt of written notice of default;
(b) As to defaults requiring title or
possession of the AERA Diamond Bar Property, or any portion
thereof, to effectuate a cure: (a) the Mortgagee agrees in
writing, within ninety (90) days after receipt from City of the
written notice of default, to perform the proportionate share of
Owner's obligations under this Agreement allocable to that part
of the AERA Diamond Bar Property in which the Mortgagee has an
interest, conditioned upon such Mortgagee's acquisition of the
AERA Diamond Bar Property, or portion thereof, by foreclosure
(including a trustee sale) or by a deed in lieu of foreclosure;
(b) the Mortgagee commences foreclosure proceedings to reacquire
title to the AERA Diamond Bar Property, or applicable portion
thereof, within said ninety (90) days and thereafter diligently
pursues such foreclosure to completion; and (c) the Mortgagee
promptly and diligently cures such default after obtaining title
or possession. Subject to the foregoing, in the event any
Mortgagee records a notice of default as to its mortgage, upon
the Mortgagee's written request to assume Owner's obligations
hereunder, City shall consent to the assignment of all of
Owner's rights and obligations under this Agreement to the
Mortgagee or to any purchaser of Owner's interest at a
foreclosure or trustee sale, provided the Mortgagee or such
purchaser executes and delivers to City an assumption agreement
in a form and with terms reasonably acceptable to City, and
Owner shall thereafter be released by City from liability
hereunder with regard to the applicable portion of the AERA
Diamond Bar Property which is transferred in accordance with
Section 2.5 above. Notwithstanding the foregoing, City shall
not impose any terms on the Mortgagee which are inconsistent
with the provisions of this Agreement.
9.2.2 Extended Cure Period. Notwithstanding
Section 9.2.1 above, if any Mortgagee is prohibited from
commencing or prosecuting foreclosure or other appropriate
proceedings including by any process of injunction issued by any
court or by reason of any action by any court having
jurisdiction or any bankruptcy or insolvency proceeding
involving Owner, the times specified in Section 9.2.1 above for
commencing or prosecuting foreclosure or other proceedings or
35 AeraUamond BarlPreannex&DeveiAgW7l18/06
curing any default by Owner, including the payment of money,
shall be extended for the period of the prohibition.
9.2.3 Superior Lien. The Lien of any
existing or future deeds of trust recorded against all or any
part of the AERA Diamond Bar Property (other than the Public
Benefit Sites) shall be superior and senior to any lien created
by this Agreement or the recordation thereof. At the request of
any lender whose loan will be secured by a deed of trust on all
or any part of the AERA Diamond Bar Property (other than the
Public Benefit Sites), City shall execute a subordination
agreement, subordinating its interest hereunder to the lien of
such deed of trust, which subordination agreement shall be
subject to the reasonable approval of City. Notwithstanding the
foregoing: (i) at the option of the Mortgagee any foreclosure of
any such deed of trust shall not serve to extinguish or
terminate this Agreement, provided that in no event shall any
dedications or conveyances made by Owner to City be affected or
reversed; and (ii) the lien of any Bond or assessment shall be
superior to the lien of any deed of trust and this Agreement.
9.2.4 No Impairment of Lien. Neither
entering into this Agreement nor a breach of this Agreement
shall defeat, render invalid, diminish or impair the lien of any
existing or future mortgagee or deed of trust on the AERA
Diamond Bar Property made in good faith and for value.
9.2.5 Election to Assume Obligations.
Except as provided to the contrary in this Agreement, no
Mortgagee or beneficiary shall have an obligation or duty under
this Agreement to perform the obligations of Owner or other
affirmative covenants of Owner hereunder, or to guarantee such
performance, and no Mortgagee shall be liable for any defaults
or monetary obligations of Owner arising prior to acquisition of
title to the AERA Diamond Bar Property by such Mortgagee or
their respective successors or assigns; except that to the
extent any covenant to be performed by Owner is a condition to
the performance of a covenant by City, the performance thereof
shall continue to be a condition precedent to City's performance
hereunder. In the event a Mortgagee elects to develop the AERA
Diamond Bar Property in accordance with the Specific Plan, the
Mortgagee shall be required to assume and perform the
obligations or other affirmative covenants of Owner under this
Agreement.
9.2.6 Request to Modify. City acknowledges
that the lenders providing financing for the Project may require
certain modifications to this Agreement and City agrees, upon
request from time to time, to meet with Owner and/or
36 AeralDiamond Bar\Preannex&Deve1Agt:07118106
representatives of such lenders to negotiate in good faith any
such requirement for modification. To the extent that City
Council action is required in order to lawfully adopt the
requested modification to this Agreement, the City Council shall
promptly and reasonably consider the request, without imposing
any additional conditions, dedications, or exactions from Owner
so long as such requested modification(s) do(es) not materially
affect the terms of this Agreement.
9.3 Releases. City agrees that upon written request
of Owner and payment of all fees and performance of the
requirements and conditions required of Owner by this Agreement
with respect to the AERA Diamond Bar Property, or any portion
thereof, City shall execute and deliver to Owner appropriate
release(s) of further obligations imposed by this Agreement in,
form and substance acceptable to the County Recorder and title
insurance company, if any, or as may otherwise be necessary to
effect the release.
9.4 Termination of Agreement with Respect to
Individual Residential Lots Upon Sale to Public. Notwithstanding
any other provisions of this Agreement, this Agreement shall
terminate with respect to any residential lot and such lot shall
be released and no longer be subject to this Agreement without
the execution or recordation of any further document when a
final "Certificate of Occupancy", or its equivalent, is issued
for any lot or parcel within a phase or tract. Such release of
obligations shall occur automatically and shall not require the
execution or recordation of any further document or instrument.
10. MISCELLANEOUS PROVISIONS.
10.1 Rules of Construction. The singular includes the
plural; the masculine gender includes the feminine; "shall" is
mandatory; "may" is permissive.
10.2 Entire Agreement, Waiver and Recorded Statement.
This Agreement constitutes the entire understanding and
agreement of City and Owner with respect to the matters set
forth in this Agreement. This Agreement supersedes all
negotiations or previous agreements between City and Owner,
respecting this Agreement. All waivers of the provisions of
this Agreement must be in writing and signed by the appropriate
authorities of City and Owner. Upon the completion of
performance of this Agreement or its revocation or termination,
a statement evidencing completion, revocation, or termination
signed by the appropriate agents of City, shall be recorded in
the Official Records of County.
37 Aera\Diamond $arlPreannex&Deve1Agt:07118/06
10.3 Incorporation of Recitals. The Recitals set
forth in Paragraphs A through and including U above are part of
this Agreement.
10.4 Consent. Where the consent or approval of City,
or Owner, is required or necessary under this Agreement, the
consent or approval shall not be unreasonably withheld, delayed,
or conditioned unless otherwise provided herein.
10.5 Covenant of Cooperation. City and Owner shall
cooperate and deal with each other in good faith, and assist
each other in the performance of the provisions of this
Agreement.
10.6 Delay, Extension of Time for Performance. In
addition to any specific provision of this Agreement,
performance by either City or Owner of its obligations hereunder
shall be excused during any period of delay caused at any time
by reason of any event beyond the control of City or Owner,
which prevents or delays performance by City, or Owner, of
obligations under this Agreement, including, but not limited to,
acts of God, judicial actions such as the issuance of
restraining orders and injunctions, riots, strikes, or damage to
work in process by reason of fire, floods, earthquake, or other
such casualties. If City or Owner seeks excuse from
performance, it shall provide written notice of such delay to
the other within thirty (30) days of the commencement of such
delay. If the delay or default is beyond the control of City or
Owner, an extension of time for such cause shall be granted in
writing for the period of the enforced delay, or longer as may
be mutually agreed upon.
10.7 Applicable Law; Severability; Forum; Service of
Process; Attorneys' Fees. This Agreement shall be governed by
and construed under California Law. Nothing contained herein
shall be construed so as to require the commission of any act
contrary to law, and wherever there is any conflict between any
provision contained herein and any present or future statute,
law, ordinance, or regulation contrary to which the parties have
no legal right to contract, the latter shall prevail but the
provision of this Agreement which is affected shall be curtailed
and limited only to the extent necessary to bring it within the
requirements of the law without invalidating or affecting the
remaining provisions of this Agreement. The parties hereto
agree that the Municipal and Superior Courts of the State of
California in and for the County of Orange, and the United
States District Court for the Central District of California,
Santa Ana Division, shall have exclusive jurisdiction of any
litigation between the parties hereto arising out of or
38 Aera\Diamond BaAPreannex&Deve1Agt:07118106
connected to this Agreement. Service of process on City shall
be made in accordance with the requirements for service of
process on a public entity. Service of process on Shell Western
E&P Inc. shall be made in any manner permitted by law and shall
be effective if served on Aera Energy LLC's registered agent for
service of process, PrenticQ Hall Corporation System Inc. of
California, 5670 Wilshire Boulevard, Suite 750, Los Angeles,
California 90036, with a copy mailed by certified or registered
mail, postage prepaid, to Division Land Manager, 10000 Ming
Avenue, Bakersfield, California 93309.
10.8 Time of Essence. Time is of the essence in the
performance of the provisions of this Agreement as to which time
is an element.
10.9 Estoppel Certificate. Within fifteen (15) days
following a written request by either of the parties, the other
party to this Agreement shall execute and deliver to the
requesting party a statement certifying that: (i) this Agreement
is unmodified and 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; (ii) there are no current uncured defaults under
this Agreement or specifying the date and nature of any such
default; and (iii) any other reasonable information requested.
The failure to deliver such a statement within such time shall
constitute a conclusive presumption against the party which
fails to deliver such statement that this Agreement is in full
force and effect without modification except as may be
represented by the requesting party and that there are no
uncured defaults in the performance of the requesting party,
except as may be represented by the requesting party; provided,
however, the fifteen (15) day period referenced above shall be
extended as reasonably necessary if the party providing the
statement has demanded in writing within the fifteen (15) day
period additional information from the requesting party that is
reasonably necessary for the providing party to obtain in order
to provide the statement.
10.10 Non -liability of City Officers and
Employees. No official, officer, employee, agent, or
representative of City, acting in his/her official capacity,
shall be personally liable to Owner, or any successor or assign,
for any loss, costs, damage, claim, liability, or judgment,
arising out of or connected to this Agreement, or for any act or
omission on the part of City or such official, officer,
employee, agent, or representative with respect to Owner.
39 AerakDiamond BarTreannex&Deveftt:07118106
10.11 Nonliability of Owner Officers and
Employees. No officer, director, shareholder, parent or
subsidiary corporation or other affiliate of Owner or any of
their respective employees, agents, or representatives shall be
personally liable to City, or any successor or assign, for any
loss, costs, damage, claim, liability, or judgment, arising out
of or connected to this Agreement, or for any act or omission on
the part of Owner or such officer, director, shareholder, parent
or subsidiary corporation or other affiliate of Owner or any of
their respective employees, agents, or representatives.
10.12 Covenant Against Discrimination. Owner and
City covenant and agree, for themselves and their respective
successors and assigns, that there shall be no discrimination
against, or segregation of, any person or group or persons on
account of race, color, creed, religion, sex, marital status,
national origin or ancestry in the performance of this
Agreement. Owner shall comply with the Americans with
Disabilities Act of 1990, as amended (42 U.S.C. Sections 12101,
et seq.).
10.13 Modification or Amendments. No amendment,
change, or modification of this Agreement shall be valid unless
in writing and signed by all of the parties hereto.
10.14 Successors and Assigns. All of the terms
and provisions contained herein shall inure to the benefit of
and shall be binding upon the parties hereto and their
respective heirs, personal representatives, and permitted
successors and assigns.
10.15 Separate Counterparts. This Agreement may
be executed in one or more separate counterparts, each of which,
when so executed, shall be deemed to be an original. Such
counterparts shall together constitute and be one and the same
instrument.
10.16 Agreement Negotiated. The parties hereto
have been represented by counsel of their own choosing
throughout this transaction who have carefully negotiated the
provisions hereof. As a consequence, the presumptions of'
California Civil Code Section 1654 relating to the
interpretation of contracts against the drafter or any
particular clause shall not be applied in this case and
therefore the parties hereto waive its effects.
10.17 Captions. The captions appearing at the
commencement of the paragraphs hereof are descriptive only and
for convenience in reference. Should there be any conflict
40 Aera\Oiamond BarTreannexWeveftt:07/18/06
between any such paragraph caption and the paragraph to which
the caption refers, the paragraph and not such caption shall
control and govern in the construction of this Agreement.
10.18 Notices. Any and all notices, demands or
other communications ("Notices") required or desired to be given
hereunder by any party shall be in writing and shall be validly
given or made by any of the following methods: (i) by personal
delivery; (ii) by facsimile transmission if also concurrently
deposited for delivery by United States mail in the manner
described in subparagraph (iii); (iii) by deposit in the United
States mail, certified or registered, postage prepaid; or (iv)
by delivery by a same -day or overnight courier (e.g., FedEx,
UPS, etc.). Notices delivered personally or by courier shall be
conclusively deemed made at the time of such personal delivery
or refusal to accept delivery. Notice served by facsimile
transmission shall conclusively be deemed to have been made as
of the earlier of (a) the first business day following the date
of transmission to the facsimile number, if any, set forth
below, so long as the sender has reasonable confirmation of the
receipt by the receiving facsimile machine of the facsimile
transmission; or (b) the effective date of receipt of the
concurrently mailed copy of the Notice. Notices delivered by
mail shall conclusively be deemed delivered three (3) business
days after the deposit thereof in the United States mail
addressed to the party to whom such Notice is to be given. Any
party hereto may change its address or facsimile number for the
purpose of receiving Notices as herein provided by a written
notice given in the manner aforesaid to the other party or
parties hereto. Notices shall be directed as follows:
If to Owner: 3030 Saturn Street, Suite 101
Brea, CA 92621
FAX No.: (714) 577-9149
Attn: George L. Basye
with copies to:
Aera Energy LLC
10000 Ming Avenue
Bakersfield, CA 93311
FAX No.: (805) -
Attn: General Counsel
Donfeld, Kelley & Rollman
11845 W. Olympic Boulevard
Suite 1245
Los Angeles, CA 90064
FAX No.: (310) 312-8014
Attn: Jeffrey E. Donfeld, Esq.
41 Aera\Diamond Sar\Preannex&Deve1Agl:07118/06
If to City:
Diamond Bar, CA
FAX No.: ( ) -
Attn: City Manager
with copy to:
FAX No.: ( ) -
Attn:
11. EXHIBITS.
Esq.
The following exhibits referred to in this Agreement
are attached hereto and incorporated herein as though set forth
at length and are identified as follows:
Exhibit
Designation Description
"A"' AERA Property Legal Description
"'A-11' AERA Orange County Property
11A-2"" AERA L.A. County Property
"A-3" AERA Diamond Bar Property
""B"' Map of AERA Property
The following documents referred to in this Agreement
are incorporated herein as though set forth at length and are
identified as follows:
Project Phasing Plan
Public Financing Plan
Shell Specific Plan/ Master Planned Community/ Shell
Diamond Bar Planned Community Zoning Ordinance
[signatures on next page »]
42 Aera\Diamond Bar\Prearinex&Deve1Agt:07118/06
IN WITNESS WHEREOF, this Agreement has been executed by
City, acting by and through its Mayor, pursuant to Ordinance No.
authorizing such execution by City, and by Owner
upon authorization by Resolution No. of the Board
of Directors of Owner.
Dated this day of , 2006.
ATTEST:
Name:
City Clerk of the
City of Diamond Bar
APPROVED AS TO FORM:
Name:
City Attorney
"OWNER"
AERA ENERGY LLC
a California limited liability
company
By:
Name:
Its Attorney -in -Fact
"CITY"
THE CITY OF DIAMOND BAR,
a Municipal Corporation and a
General. Law City,
By:
Name:
Mayor of the
City of Diamond Bar
43 Aera%Diamond Bar\Preannex&Deve1Agt:07/18/06
EXHIBIT "A"
AERA PROPERTY DESCRIPTION
[TBA]
AeralDiamond BarTreannex&DevelAgL07118146
EXHIBIT "A-1
AERA ORANGE COUNTY PROPERTY
[TBAI
AeraTiamond Bar\Preannox&DevelAgt:07l18106
EXHIBIT "A-2"
AERA L.A. COUNTY PROPERTY
[TBA]
Aeralbiamand BaAPreannex&DevelAgf:07/18/06
EXHIBIT "A-3"
AERA DIAMOND BAR PROPERTY
[ TBA]
AeraTiamond Bar\Preannex&DevelAgt07118/06
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