CC SR 20180918 F - Trump Development AgreementRANCHO PALOS VERDES CITY COUNCIL MEETING DATE: 09/18/2018
AGENDA REPORT AGENDA HEADING: Consent Calendar
AGENDA DESCRIPTION:
Consideration and possible action to waive further reading and adopt Ordinance
No. 609 approving an amended and restated Development Agreement between the
Developer of the Trump National Golf Club Project and the City.
RECOMMENDED COUNCIL ACTION:
(1) Adopt Ordinance No. 609, AN ORDINANCE OF THE CITY OF RANCHO PALOS
VERDES APPROVING AN AMENDED AND RESTATED DEVELOPMENT
AGREEMENT BETWEEN THE DEVELOPER AND THE CITY TO CLARIFY
AND CONSOLIDATE, UNDER ONE AGREEMENT, ALL OF THE
PREVIOUSLY-APPROVED CHANGES AND CONDITIONS TO THE
DEVELOPMENT OF THE TRUMP NATIONAL GOLF COURSE PROJECT AND
TO EXTEND THE TERM OF THE DEVELOPMENT AGREEMENT.
FISCAL IMPACT: None
Amount Budgeted: N/A
Additional Appropriation: N/A
Account Number(s): N/A
ORIGINATED BY: So Kim, AICP, Deputy Director/Planning Manager
REVIEWED BY: Ara Mihranian, AICP, Director of Community Development
APPROVED BY: Doug Willmore, City Manager
ATTACHED SUPPORTING DOCUMENTS:
A. Ordinance No. 609 (page A-1)
All previous Staff Reports, meeting Minutes, and public comments on this topic can be
found on the City’s website via the September 4, 2018, City Council Agenda at
http://rpv.granicus.com/GeneratedAgendaViewer.php?view_id=5&clip_id=3230.
The sub-attachments to the Ordinance have been intentionally omitted, but are
available for viewing on the City’s website at http://www.rpvca.gov/481/Trump-National-
Golf-Club.
BACKGROUND AND DISCUSSION:
On September 4, 2018, Ordinance No. 609 (Attachment A) was introduced by the City
Council. This evening, Ordinance No. 609 is being presented to the City Council for its
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second reading and adoption. The ordinance will take effect on October 18, 2018. The
amended and restated Development Agreement provides for, among other things, the
extension of the term of the original Development Agreement for the Trump National
Golf Course Project for a 25-year period.
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ORDINANCE NO. 609
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF RANCHO
PALOS VERDES, CALIFORNIA, APPROVING AN AMENDED AND
RESTATED DEVELOPMENT AGREEMENT BETWEEN THE
DEVELOPER AND THE CITY TO CLARIFY AND CONSOLIDATE,
UNDER ONE AGREEMENT, ALL OF THE PREVIOUSLY-APPROVED
CHANGES AND CONDITIONS TO THE DEVELOPMENT OF THE
TRUMP NATIONAL GOLF COURSE PROJECT AND TO EXTEND THE
TERM OF THE DEVELOPMENT AGREEMENT.
WHEREAS, Sections 65864 et seq. of the Government Code of the State of
California and Chapter 17.82 of the City of Rancho Palos Verdes’ Municipal Code
authorize the City of Rancho Palos Verdes (the "City") to enter into binding
development agreements and amendments thereto; and,
WHEREAS, on June 1, 1992, the City Council of the City adopted Resolution
No. 92-53, certifying Environmental Impact Report (EIR) No. 36 and adopted
Resolution Nos. 92-54, 92-55, 92-56, 92-57, approving Vesting Tentative Tract Map
Nos. 50666 and 50667, Tentative Parcel Map Nos. 20970 and 23004, Conditional Use
Permit Nos. 162 and 163, Coastal Development Permit No. 103 (the "CDP"), and
Grading Permit No. 1541 for a Residential Planned Development, an 18-hole public
golf course, and associated amenities and public open space (the “Original Project”)
on an approximately 261.4 acre property located in the City (the "Property"); and,
WHEREAS, on November 5, 1997, the City Council approved a Development
Agreement with the "Zuckerman Entities" and Palos Verdes Land Holding Corporation,
L.P., a California limited partnership, pursuant to Ordinance No. 328, which was
recorded on December 8, 1997 in the Official Records of Los Angeles County ("Official
Records") as Instrument No. 97-1929840 (“Original Development Agreement”),
pursuant to which original developer (“Original Developer”) was granted certain vested
rights to develop the Original Project; and,
WHEREAS, the City Council subsequently approved sixteen various
amendments to the Original Development Agreement, including amendments dated
September 18, 2001, March 4, 2003, November 20, 2007, March 4, 2008, July 15,
2008, October 21, 2008, January 21, 2009, September 15, 2009, March 16, 2010,
September 21, 2010, March 15, 2011, September 20, 2011, March 6, 2012, August 7,
2012, September 16, 2014, and August 16, 2016, each of which were approved by
the City Council and recorded in the Official Records (such amendments, together with
the Original Development Agreement, are sometimes collectively referred to herein as
the "Development Agreement"), which provided for, among other things, the extension
of the term of the Original Development Agreement and Tentative Tract Map No.
50666, clarifications and agreements regarding the golf taxes payable by developer to
City and golf fees chargeable by developer to users of the golf course; and,
WHEREAS, the rights and obligations of the Original Developer under the
Development Agreement were assigned to, and assumed by VH Property Corp. (the
"Developer") and VHPS, LLC (the "Owner"), which are the current owners of the
Property (except for certain portions thereof which have been deeded or dedicated to
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the City as habitat, open space, and park areas), and Developer (and its
predecessors-in-interest) has made substantial progress in completing the
development contemplated under the Original Development Agreement, which is now
known as the Trump National Golf Club Project (the “Project”), including the
completion of the Trump National Golf Course, including an 18 hole golf course, driving
range, practice areas, golf clubhouse, parking areas, public trails, open space, and
related facilities, as well as completion of a majority of the residential buildings, public
facilities and other structures set forth in the Final Map for Vesting Tentative Tract No.
50667; and,
WHEREAS, the term of, and vested rights conferred by, the existing
Development Agreement and VTTM No. 50666 are set to expire on September 21,
2018; and,
WHEREAS, the Original Development Agreement is proposed to be amended
and restated in full in order to, among other things, to clarify and consolidate, under
one agreement, all of the previously-approved changes and conditions to the
development of the Project that have occurred over the last 21 years (the most recent
of which were approved by the City Council at its public hearings held on Jun 19, 2018
and August 21, 2018, pursuant to Resolution Nos. 2018-39, 2018-57, 2018-58, 2018-
59, and 2018-60, the recitals and terms and provisions of which are hereby
incorporated within this Ordinance), and to extend the term of the Development
Agreement; and,
WHEREAS, the Amended and Restated Development Agreement attached
hereto as Exhibit A, and incorporated herein by this reference with the same force and
effect as set forth in full, has been prepared by City staff, and has been agreed to by
the Developer and Owner; and,
WHEREAS, the Amended and Restated Development Agreement contains a
number of benefits to the City, including, without limitation (i) it clarifies the property
and trail easements required to be dedicated to the City, (ii) it incorporates and
references the current set of City Council-adopted Conditions of Approval and
Mitigation Measures that have been approved over the years to ensure compliance
with such Conditions of Approval and Mitigation Measures, (iii) it redefines the scope
of work/approved development plan for the Project to conform to the current
Conditions of Approval imposed by the City for the Project (which have been revised
significantly over the course of the last 21 years with the City Council’s approval, but
which have not been incorporated into the Development Agreement), (iv) it clarifies
and enhances the maintenance and management obligations of the Developer with
respect to the public open space, trails, park and recreational areas, streets, paths
and parking areas located on the Property and on City-owned property, and (vi) it
extends the term of the Development Agreement (which is currently set to expire on
September 21, 2018) for a 25 year period to ensure the Project will be completed as
intended; and,
WHEREAS, on August 14, 2018, the Planning Commission adopted Resolution
No. 2018-22, recommending that the City Council adopt an ordinance approving an
Amended and Restated Development Agreement between the City and the Trump
Organization (VH Property Corp. and VHPS, LLC.), with modifications to provide for a
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tracking program to assess the Developer’s compliance with its maintenance
obligations and to reduce the term of the anticipated completion for the development
project from 10 years to 7 years; and,
WHEREAS, on September 4, 2018, the City Council conducted a duly noticed
public hearing on the proposed Amended and Restated Development Agreement,
considered testimony and materials in the staff report and accompanying documents,
and after review and consideration, approved the Amended and Restated
Development Agreement, as set forth in Exhibit A, attached hereto; and,
WHEREAS, all legal prerequisites to the adoption of the Ordinance have been
met.
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF RANCHO
PALOS VERDES DOES HEREBY FIND, DETERMINE, AND RESOLVE AS
FOLLOWS:
Section 1. The above recitals are true and correct and are hereby
incorporated into this Resolution as set forth herein.
Section 2. Pursuant to the California Environmental Quality Act and State
CEQA Guidelines, the City Council hereby determines that there is no substantial
evidence that the changes and modifications to the Project or to the circumstances
under which the Project is undertaken embodied in the Amended and Restated
Development Agreement would result in a new or increased significant adverse effect
on the environment that was not already considered under EIR No. 36 (and the
modifications, addenda, supplementations, and/or mitigated negative declarations or
mitigation monitoring programs related thereto or otherwise to the Project, which have
previously received approval from City Council).
Section 3. The City Council hereby finds the Amended and Restated
Development Agreement (attached hereto as Exhibit A) by and between the City and
Developer and Owner:
A. Conforms with the maps and policies of the General Plan and any applicable
specific plan including, without limitation, the City's Coastal Specific Plan;
B. Complies with the requirements of California Government Code Sections
65865 through 65869.5;
C. W ill not be detrimental to or cause adverse effects to adjacent property
owners, residents, or the general public; and
D. Provides clear and substantial benefit to the residents of the City of Rancho
Palos Verdes.
Section 4. The City Council hereby approves the Amended and Restated
Declaration of Restrictions attached hereto as Exhibit A.
Section 5. If any section, subsection, subdivision, sentence, clause, phrase or
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portion of this Ordinance is for any reason held to be invalid or unconstitutional by the
decision of any court of competent jurisdiction, such decision shall not affect the
validity of the remaining portions of this Ordinance. The City Council hereby declares
that it would have adopted this Ordinance, and each section, subsection, subdivision,
sentence, clause, phrase, or portions thereof, irrespective of the fact that any one or
more sections, subsections, subdivisions, sentences, clauses, phrases or portions
thereof be declared invalid or unconstitutional.
Section 6. This Ordinance shall take effect 30 days after its adoption.
Section 7. The Mayor, City Manager, and City Clerk or their designees, are
authorized and directed to take such actions and execute such documents and
certifications as may be necessary to implement and affect execution, recordation and
enforcement of this Ordinance and the Amended and Restated Development
Agreement with any non-substantive changes or clerical corrections approved by the
City Manager and the City Attorney.
PASSED, APPROVED, and ADOPTED this 18th day of September
2018.
Mayor
Attest:
City Clerk
STATE OF CALIFORNIA )
COUNTY OF LOS ANGELES )ss
CITY OF RANCHO PALOS VERDES )
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I, EMILY COLBORN, City Clerk of the City of Rancho Palos Verdes, do hereby certify
that the whole number of members of the City Council of said City is five; that the
foregoing Ordinance No. 609 passed first reading on September 4, 2018, was duly
and regularly adopted by the City Council of said City at a regular meeting thereof held
on September 18, 2018, and that the same was passed and adopted by the following
roll call vote:
AYES:
NOES:
ABSENT:
ABSTAIN:
______________________
City Clerk
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EXHIBIT "A"
Amended and Restated Development Agreement
[Attached]
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RECORDING REQUESTED BY,
AND WHEN RECORDED, MAIL TO:
CITY OF RANCHO PALOS VERDES
30940 Hawthorne Boulevard
Rancho Palos Verdes, CA 90275-5391
Attn: City Clerk
___________________________________________________________________________
(Space Above for Recorder's Use)
This agreement is recorded at the request and
for the benefit of the City of Rancho Palos
Verdes and is exempt from the payment of a
recording fee pursuant to Govt. Code § 27383
AMENDED AND RESTATED DEVELOPMENT AGREEMENT
(Pursuant to Government Code
Sections 65864 - 65869.5)
This AMENDED AND RESTATED DEVELOPMENT AGREEMENT ("Agreement") is
entered into on _______________, 2018, by and among VH PROPERTY CORP., a Delaware
corporation ("Developer"), VHPS, LLC, a Delaware limited liability company ("VHPS", together
with Developer, collectively "Owners"), and the CITY OF RANCHO PALOS VERDES, a municipal
corporation organized and existing under the laws of the State of California ("City").
Developer, VHPS, and City are sometimes individually referred to herein as a "party" and
collectively as the "parties."
R E C I T A L S
A. These Recitals refer to and utilize certain capitalized terms which are defined
in this Agreement. The parties intend to refer to those definitions in conjunction with the use
thereof in these Recitals.
B. To strengthen the public planning process, encourage private participation in
comprehensive planning, and reduce the economic risk of development, the Legislature of
the State of California adopted Government Code Sections 65864 et seq. ("Development
Agreement Law"). The Development Agreement Law authorizes the City to enter into binding
development agreements with persons having a legal or equitable interest in real property,
to provide for the development of such property and to vest certain development rights
therein. Pursuant to Government Code Section 65865, City has adopted rules and regulations
establishing procedures and requirements for consideration of development agreements.
C. City, on the one hand, and the "Zuckerman Entities" and Palos Verdes Land
Holding Corporation, L.P., a California limited partnership, on the other hand (collectively,
"Original Developer"), as predecessors-in-interest to Developer, originally entered into that
certain Development Agreement, dated November 20, 1997, and recorded on December 8,
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1997 in the Official Records of Los Angeles County ("Official Records") as Instrument No. 97-
1929840 (“Original Development Agreement”), pursuant to which Original Developer was
granted certain vested rights to develop that certain real property described and/or depicted
on Exhibit A-1, attached hereto (the "Property"). The Original Development Agreement was
entered into in accordance with the Development Agreement Law and was approved by the
City Council of the City on November 5, 1997, pursuant to Ordinance No. 328. The purpose
of the Original Development Agreement was to allow for the development of a residential
planned development and an eighteen-hole public golf course (commonly referred to as the
Ocean Trails Project and now known as the Trump National Golf Club Project) and associated
amenities, including, without limitation, on-site and off-site improvements, as more
specifically described in the Original Development Agreement. In addition, the City previously
approved Vesting Tentative Tract Map ("VTTM") No. 50666 and VTTM No. 50667 and
subsequent amendments thereto in connection with the development of the Project. Final
Tract Map No. 50667 was recorded as Instrument No. 99-1934089 in the Official Records on
October 12, 1999.
D. Developer and/or Developer's predecessors-in-interest, on the one hand, and
City, on the other hand, subsequently entered into sixteen various amendments to the
Original Development Agreement, including amendments dated September 18, 2001, March
4, 2003, November 20, 2007, March 4, 2008, July 15, 2008, October 21, 2008, January 21,
2009, September 15, 2009, March 16, 2010, September 21, 2010, March 15, 2011, September
20, 2011, March 6, 2012, August 7, 2012, September 16, 2014, and August 16, 2016, each of
which were approved by the City Council and recorded in the Official Records (such
amendments, together with the Original Development Agreement, are sometimes
collectively referred to herein as the "Development Agreement"), which provided for, among
other things, the extension of the term of the Original Development Agreement and Tentative
Tract Map No. 50666, clarifications and agreements regarding the golf taxes payable by
Developer to City and golf fees chargeable by Developer to users of the golf course. The rights
and obligations under the Development Agreement were assigned to, and assumed by,
Developer pursuant to that certain Assignment of Development Agreement, dated May 1,
2002, and recorded in the Official Records on May 17, 2002 as Instrument No. 02-1149228.
The term of, and vested rights conferred by, the existing Development Agreement and VTTM
No. 50666 would otherwise be subject to expiration on September 21, 2018, unless extended
pursuant to this Agreement.
E. Owners collectively own, in fee title, the Property, except for those portions
thereof that were previously dedicated and/or granted to City or other governmental
agencies for street purposes, trails, parks, or open space. On December 9, 2004, Developer
conveyed its fee simple interest in and to certain portions of the Property to VHPS pursuant
to that certain Grant Deed, recorded in the Official Records on December 14, 2004 as
Instrument No. 04-32115802 (the "VHPS Property"), as described and/or depicted on Exhibit
A-2, attached hereto.
F. In connection with the Project and its development, Developer has previously
applied for, and City has approved, vesting tentative tract maps (VTTM Nos. 50666 and
50667), a final map for VTTM Nos. 50666 and 50667, parcel maps (PM Nos. 20970 and
23004), conditional use permits (CUP Nos. 162 and 163), a variance (Resolution No. 2016-
08), a grading permit (No. 1541), a Final Public Amenities Plan as shown on Exhibit F,
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attached hereto, and other approvals related to the Project, as described on Exhibit C,
attached hereto, each of which have been amended from time to time, in order to, among
other things, accommodate various changes and modifications to the Project and address
issues that arose as a result of a landslide that occurred on the Property in 1999 and protect
the Coastal Sage Scrub Habitat and the interests of its residents and the quality of the
community and the environment. The latest revisions to the Project that were approved by
the City Council of City, were approved on [September __, 2018 pursuant to Resolution No.
[2018-__]. In addition, (i) the California Coastal Commission has issued various approvals
and permits in connection with the Project, including, without limitation, its approval of
Coastal Development Permit No. A-5-RPV-93-005 (i.e., Coastal Permit No. (103)) on April 15,
1993, which was subsequently amended from time to time up to and including Coastal
Development Permit No. A-5-RPV-93-005-A24, to reflect various modifications to the
Project, and (ii) the United States Fish and Wildlife Service ("USFWS") and the Department
of Fish and Game adopted a Habitat Conservation Plan (known as the Ocean Trails
Residential and Golf Community Coastal Sage Scrub and Sensitive Species Habitat
Conservation Plan) for the Project dated July 1996, which was subsequently amended
pursuant to that certain Habitat Conservation Plan Amendment, approved by the City
Council of City on July 18, 2000 (as so amended, and as the same may be hereafter amended
or modified from time to time with the approval of the City and applicable resource agencies,
the "HCP"), and an Implementing Agreement for the HCP, which was amended pursuant to
that certain Amendment to the Implementing Agreement for the Ocean Trails HCP, approved
by the City Council of City on July 18, 2000 (as so amended, the "Implementing Agreement").
Such approvals and permits, together with any other permits and approvals issued by the
City, California Coastal Commission, the USFWS and Department of Fish and Game, and/or
any other governmental agency, are collectively referred to herein as the "Approvals".
G. As part of the approval process, City has undertaken, pursuant to the California
Environmental Quality Act (California Public Resources Code Section 21000 et seq.)
("CEQA"), the required analysis of the environmental effects which would be caused by the
Project. In that regard, on June 2, 1992, the City Council of City adopted Resolution No. 92-
53, which certified Environmental Impact Report No. 36 and imposed a series of mitigation
measures in connection with the development of the Project to eliminate or mitigate, to the
extent feasible, any potentially adverse impacts caused by the Project and made the required
environmental findings. Subsequent thereto, the City Council of City adopted certain
addenda, supplementations, and separate mitigated negative declarations and amendments
thereto in connection with proposed modifications to the Project, all as set forth on Exhibit
K, attached hereto and incorporated herein by this reference (such Environmental Impact
Report, together with all modifications, addenda, supplementations, and/or mitigated
negative declarations or mitigation monitoring programs related thereto or otherwise to the
Project, which have received approval from City, are collectively referred to herein as
"Project CEQA Environmental Documentation").
H. Developer has made substantial progress in completing the development
contemplated by the Development Agreement, including the completion of the Trump
National Golf Course, including an 18 hole golf course, driving range, practice areas, golf
clubhouse, parking areas, public trails, open space, and related facilities, as well as
completion of a majority of the residential buildings, public facilities and other structures set
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forth in the Final Map for VTTM 50667, all in accordance with the Development Agreement
and the Approvals.
I. The City and Owners now desire to amend the Development Agreement and
enter into this Amended and Restated Development Agreement to address, among other
things, extending the term of the Development Agreement, recognition of the changed
assumptions and conditions for the development of the Project that have occurred over the
years (as previously reviewed and approved by the City and as studied and analyzed under
the Project CEQA Environmental Documentation), including, without limitation, their desire
to revise the original development plans for the Project, the Owners' maintenance and
management obligations with respect to certain habitat conservation and restoration areas,
trails, paths, open spaces, signage, public facilities and amenities, park spaces, fire breaks,
streets, parking areas, drainage systems, fencing, planting and landscaping, and other areas,
facilities and improvements as set forth below and under the Restated Declaration.
J. This Agreement is intended to be, and shall be construed as, a development
agreement within the meaning of the Development Agreement Law. This Agreement will
eliminate uncertainty in planning for and secure the orderly completion of development of
the Project, ensure a desirable, attractive, and functional community environment for
residents and visitors, and provide for, among other things, recreational activities and
amenities open to the public, trail systems, park and natural open space, sufficient parking,
signage, habitat conservation, landscaping, public facilities, infrastructure, and services
appropriate for the development of the Project, effective and efficient development of
residential housing including affordable units, assure attainment of the maximum effective
utilization of resources within the City, and provide other significant public benefits to the
City and its residents by otherwise achieving the goals and purposes of the Development
Agreement Law. In exchange for these benefits to the City, Owners desire to receive, or if
vested by the Development Agreement, continue to receive, the assurance that Developer
may proceed with the development of the Project in accordance with the terms and
conditions of this Agreement, the Approvals, and Conditions of Approval (defined below).
Consequently, entering into this Agreement is acknowledged to be to the mutual benefit of
all parties.
K. The Planning Commission and the City Council have found that this Agreement
is consistent with the City's General Plan, Coastal Specific Plan, Development Code and the
Approvals, as most recently amended.
L. The City has determined that there is no substantial evidence that the changes
and modifications to the Project or to the circumstances under which the Project is
undertaken embodied in this Agreement would result in a new or increased significant
adverse effect on the environment that was not already considered under the existing
Project CEQA Environmental Documentation, as such changes are not intended to revise any
aspect of the Approvals or Conditions of Approval. As a result, the approval of this Agreement
is exempt from the provisions of CEQA pursuant to State CEQA Guidelines 15061.
M. On [September 4, 2018], after notice issued pursuant to the provisions of the
Development Code and Government Code §§ 65090, 65091, 65092, and 65094, the City
Council held a public hearing to consider this Agreement and, after making appropriate
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findings, the City Council adopted Ordinance No. [_____________] at its public hearing on
[September 18, 2018], approving this Agreement with Owners.
N. City has found and determined that the execution of this Agreement is in the
best interest of the public health, safety and general welfare of City and its residents and that
adopting this Agreement constitutes an appropriate exercise of its police powers.
NOW THEREFORE, the parties agree to amend and restate the Development
Agreement in its entirety as follows:
1. Definitions. The following terms and phrases shall have the meaning
ascribed below.
1.1. "Conditions of Approval" shall mean all of the Conditions of
Approval referenced on Exhibit D, attached hereto together with any modifications or
additions thereto, issued or granted by City and the California Coastal Commission in
connection with the Project.
1.2 "Development Plan" is: (a) the Existing Land Use Regulations
(as defined below), and (b) all of the Approvals, Conditions of Approval governing the
development and use of the Property as of the Effective Date, and as may be amended from
time to time after the Effective Date, including, without limitation, the permitted uses of the
Property, the density or intensity of use, the maximum height and size of proposed buildings,
the provisions for reservation or dedication of land for public purposes, and the design,
improvement and construction standards and specifications applicable to the development
of the Property, including, without limitation, all of those permits and Approvals referenced
on Exhibit C, attached hereto, and the Conditions of Approval set forth on Exhibit D, attached
hereto, allowing for the development of a Residential Planned Development consisting of 59
single family dwelling units (including 23 units in VTTM 50666 and 36 units in VTTM 50667)
and four (4) affordable housing units on the Property and requiring two (2) additional
affordable units off-site, the development of an 18-hole public golf course, a golf clubhouse,
driving range, parking facilities, parklands, pedestrian and bicycle trails, native habitat
preserves and related facilities located on an approximately 261.4 acre site. To the extent
any of the Approvals or Conditions of Approval are further amended by City, the California
Coastal Commission, or any other governmental agency from time to time with the consent
of Owners, the appropriate component of the Development Plan shall be deemed to be
automatically amended. Notwithstanding the immediately preceding sentence, if this
Agreement is required by law to be amended in order for the "Development Plan" to include
such amendments, the "Development Plan" shall not include such amendments unless and
until this Agreement is so amended.
1.3 "Effective Date" shall mean date of recordation of this
Agreement.
1.4 "Existing Land Use Regulations" means the Land Use
Regulations which have been adopted and are effective on or before the effective date of the
Original Development Agreement.
1.5 "Land Use Regulations" means all ordinances, laws,
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resolutions, codes, rules, regulations, policies, requirements, guidelines or other actions of
City, including but not limited to the City's General Plan and the City's Municipal Code
("Municipal Code") and including all development impact fees, which affect, govern or apply
to the development and use of the Property, including, without limitation, the permitted use
of land, the density or intensity of use, subdivision requirements, 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 Property, subject to the terms of this Agreement. The
term Land Use Regulations does not include, however, regulations relating to the conduct of
business, professions, and occupancies generally; taxes and assessments; regulations for the
control and abatement of nuisances; uniform codes; utility easements; encroachment and
other permits and the conveyances of rights and interests which provide for the use of or
entry upon public property; any exercise of the power of eminent domain; health and safety
regulations; environmental regulations; or similar matters or any other matter reserved to
the City pursuant to Sections 10.1, 11, and 12 below.
1.6 "Project" shall mean the residential planned development and
eighteen-hole public golf course commonly referred to as the Trump National Golf Club
Project (formerly known as the Ocean Trails Project) and associated amenities, including,
without limitation, on-site and off-site improvements, all as contemplated by the
Development Plan, as the same may be further defined, enhanced or modified pursuant to
the provisions of this Agreement.
1.7. "Subsequent Development Approvals" means all development
and entitlement approvals issued subsequent to the Effective Date in connection with
development of the Property, which shall include, without limitation, the approvals defined
herein as the Development Plan, excepting those for which approval has already been
obtained.
1.8. "Subsequent Land Use Regulations" means any Land Use
Regulations effective after the effective date of the Original Development Agreement
(whether adopted prior to or after the effective date of the Original Development
Agreement), which govern the development, and use of the Property.
2. Exhibits. The following Exhibits are attached hereto and incorporated
herein by this reference:
Exhibit Description
A-1 Legal Description / Depiction of the Property
A-2 Legal Description / Depiction of the VHPS Property
B Depiction of Parcels Owned by the City
C Permits and Approvals
D All Conditions of Approval Imposed on the Project
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E Dedication Map
F Final Public Amenities Plan
G Form of Amended and Restated Declaration of
Restrictions
H Shoreline Park License Amendment
I License Agreement (Switchbacks and Other City
Property)
J Chapter 3.40 of the Rancho Palos Verdes
Municipal Code
K Project CEQA Environmental Documentation
3. Mutual Benefits. This Agreement is entered into for the purpose of
carrying out the Development Plan for the Project in a manner that will ensure certain
anticipated benefits to both City and its residents and to Owners, as set forth in this Section.
3.1. Benefits to City. The benefits to City (including, without
limitation, the City's residents) under this Agreement include, but are not limited to: (a) the
dedication to City of certain areas of the Property for habitat conservation and restoration
areas, trail systems, streets, paths, park and open spaces, public facilities, viewsheds, fire
breaks, public access, parking areas, fire and emergency access, and other improvements
which have been and will continue to be available to the public, as depicted in part on Exhibits
E and F, attached hereto, and described under (i) that certain Easement Deed, by Developer
in favor of City, recorded on February 8, 2006 in the Official Records as Instrument No. 06-
0295375, (ii) that certain Grant Deed, by Developer in favor of City, recorded on May 23,
2011, in the Official Records as Instrument No. 20110719711, (iii) that certain Grant Deed, by
Developer in favor of City, recorded on May 23, 2011, in the Official Records as Instrument
No. 20110719715, (iv) that certain Grant Deed, made by Developer in favor of City, for the
property known as "Lot H", which was recorded in the Official Records on ______________,
2018, as Instrument No. ________________, (v) that certain Grant Deed, made by Developer
in favor of City, for the property known as the Flagpole Lot, which was recorded in the Official
Records on ______________, 2018, as Instrument No. ________________, (vi) that certain
Amended and Restated Irrevocable Offer to Dedicate Fee Title, dated August 22, 2000, and
recorded on October 17, 2000 in the Official Records as Instrument No. 00-1613039, which
was subsequently amended pursuant to that certain Amendment to Documents, recorded in
the Official Records on October 23, 2000 as Instrument No. 00-1649980 (the "Amendment"),
and the Certificate of Acceptance for same, which was recorded in the Official Records on
______________, 2018, as Instrument No. ________________, (vii) that certain Amended
and Restated Irrevocable Offer to Dedicate Public Trail Easement and Declaration of
Restrictions executed by Ocean Trails, L.P. and recorded on October 17, 2000 as Instrument
Number 00-1613038 in the Official Records, which was subsequently amended pursuant to
the Amendment, and other amendments recorded in the Official Records as Instrument Nos.
06-2156248, 20070716114, respectively, and that certain Second Amendment to Amended
and Restated Irrevocable Offer to Dedicate Public Trail Easement and Declaration of
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Restrictions, and the Certificate of Acceptance for same, which were recorded on
____________ and _______________ as Instrument Nos. ______________and __________,
respectively, (viii) that certain Easement Agreement, by Owners in favor of City recorded in
the Official Records on __________, 2018 as Instrument No. ______________, and (ix) the
property dedications shown on Final Tract Map Nos. 50666 and 50667; (b) a guaranty, which
shall be set forth in the Amended and Restated Declaration of Restrictions, shown on Exhibit
G, attached hereto which shall be executed by Owners in favor of the City and recorded
against the Property ("Restated Declaration") guaranteeing payment to City of the revenue
which would have been generated from the golf course by virtue of the City's golf tax,
regardless whether the golf tax which is set forth in Chapter 3.40 of the Municipal Code is
found by a court to be invalid; (c) the agreement by Owners (and any subsequent owner of
the portion of the Property which is to be used as a golf course) to (i) maintain and manage
to City's reasonable satisfaction the habitat conservation and restoration areas, trails, paths,
parks, and open space areas located on the Property, City Property (as defined below), and
off-site areas as described under, inter alia, the HCP, the Implementing Agreement, the
Restated Declaration, and the Conditions of Approval, and as shown on that certain map
entitled "Ownership of Open Space Lots and Public Trail Easements Tract 50666 and Tract
50667," dated [__________], 2018 ("Dedication Map"), attached hereto as Exhibit E, and that
certain map entitled "Public Amenities Plan, Trail and Signage Tract 50666 and Tract 50667,
dated [________], 2018 (the "Final Public Amenities Plan"), attached hereto as Exhibit F, and
any improvements located thereon, including, without limitation, public facilities and
amenities, drainage systems, fences, walls, signs, landscaping, furniture, trash and recycling
containers, restrooms, flagpoles, drinking fountains, etc., and shall maintain and manage the
three (3) on-site public parking lots, the public restroom at the golf course clubhouse, the
storm drains that have not or will not be accepted by Los Angeles County, the fire access lane
abutting the Ocean Terraces Condominiums, as more particularly described under the
Restated Declaration, and (ii) comply with all terms, conditions, and obligations imposed on
Owners set forth under the covenants, declarations, and deed restrictions recorded against
the Property, including, without limitation, that certain Declaration of Covenants, Conditions
and Restrictions for Ocean Trails, recorded in the Official Records on March 16, 2000 as
Instrument No. 00-0393840, and that certain Covenant to Maintain Property to Protect
Views, recorded in the Official Records on March 16, 2000 as Instrument No. 00-0393841 (all
such covenants, declarations, and deed restrictions, collectively, "Recorded Obligations"); (d)
Owners' previous provision of financial support and agreement to continue to perform and
provide financial support for long-term habitat restoration and enhancement work,
implementation of conservation programming, and maintenance and management on the
property known as the "Switchbacks" area ("Switchbacks Area") and the property known as
the "Shoreline Park" area ("Shoreline Property") each of which are owned by the City as well
as on other off-site property as set forth in the HCP, the Implementing Agreement, Restated
Declaration, and the Conditions of Approval; (e) the provision of additional residential
housing; (f) the addition of six (6) residential units in the City made affordable to persons of
very low to low income households, four (4) of which were previously constructed on-site
and two (2) of which will be located within the City's Coastal Zone or within three miles
thereof; (g) improvements to roadways; (h) a golf course which will be available for use by
the public; and (i) an increase in property tax revenues to be derived by City.
3.2. Benefits to Owners. Owners have expended and will continue
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to expend substantial amounts of time and money on the planning and infrastructure
construction of the Project. In addition, Owners have expended and will expend substantial
amounts of time and money in constructing public improvements and facilities and in
providing for maintenance, management, and public services in connection with the Project,
the Property and the City Property (as defined below). Owners would not make such
additional expenditures or undertake such services without this Agreement and such
additional expenditures will be made in reliance upon this Agreement. The benefits to
Owners under this Agreement consist of: (a) the assurance that Owners will preserve the right
to develop the Property as planned and as set forth in the Development Plan; and (b) the
Owners' non-exclusive rights of access and use of certain City-owned property, including,
without limitation, the Switchbacks Area, Shoreline Property, Flagpole Lot, and all trails
located on City Property as shown on the Final Public Amenities Plan, in order to perform
their obligations under the HCP, the Implementing Agreement, the Restated Declaration, and
the Conditions of Approval.
4. Interest of Owners. Each Owner represents that it has a legal interest
in the Property.
5. Binding Effect of Agreement. The burdens of this Agreement bind and
the benefits of this Agreement inure to the successors in interest to the parties hereto.
6. Relationship of Parties. The contractual relationship between City and
Owners is that each Owner is an independent entity and not the agent of City.
7. Term. The term of the Development Agreement became effective on
or about December 20, 1997. The term of this Agreement shall commence upon the
Effective Date and shall expire twenty-five (25) years thereafter, unless sooner terminated
or extended by the mutual consent of the parties or as otherwise provided herein. Unless
this Agreement is extended beyond its twenty-five (25) year term, or terminated earlier
pursuant hereto, it shall terminate upon the expiration of such term, and all rights and duties
created by this Agreement in favor of any party shall be extinguished on the date of such
termination except for the provisions of this Agreement that expressly survive such
termination, any outstanding obligations of the parties hereunder not previously satisfied,
and any unexpired Approvals. The City shall not unreasonably refuse to extend the term of
this Agreement beyond the expiration date as may be necessary to complete the Project.
8. Development of Property; Changes in Project. Developer shall
complete the development of the Property in accordance with this Agreement and the
Development Plan for the Project. Owners shall not be entitled to any change, modification,
revision or alteration in the Development Plan relating to the permitted uses of the Property,
the density or intensity of use, the maximum height and size of proposed buildings or the
provision for reservation or dedication of land for public purposes without review and
approval by those agencies which approved the particular aspect of the Development Plan in
the first instance. Subject to the foregoing provisions of this Section 8, City acknowledges
that Owners may seek amendments to entitlements to use and new entitlements to use in
connection with the development of the Project. Subject to Sections 10 and 12 below,
nothing in this Agreement shall be deemed to restrict or expand the authority of City or the
California Coastal Commission in determining whether to approve or deny any such
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01203.0018/483444.8 16
amendments or new entitlements to use. Notwithstanding the foregoing, implementation of
the Project may require minor modifications of the details of the Development Plan and
performance of the parties under this Agreement. The parties desire to retain a certain
degree of flexibility with respect to those items covered in general terms under this
Agreement. Therefore, modifications of the Development Plan, which are found by Director
of Community Development of City following advice from the City Attorney to be non-
substantive and/or procedural, shall not require an amendment to this Agreement. A
modification will be deemed non-substantive and/or procedural if it does not result in
material change in fees, cost, density, intensity of use, permitted uses, the maximum height
and size of buildings, the reservation or dedication of land for public purposes, or the
improvement and construction standards and specifications for the Project.
9. Indemnification; Hold Harmless; Insurance.
9.1 Indemnification; Hold Harmless.
Each of the Owners hereby agrees to indemnify, defend, and hold City, its officers, agents,
employees, members of its City Council and any commission, partners and representatives
("City Indemnitees") harmless from any and all claims, actions, suits, damages, liabilities, and
any other actions or proceedings (whether legal, equitable, declaratory, administrative, or
adjudicatory in nature) (collectively, "Claims"), asserted against City or City Indemnitees
arising out of or in connection with this Agreement, including, without limitation, (i) City's
approval of this Agreement and all documents related to this Agreement, and/or any other
Approvals, permits, or other entitlements for the Project and issues related thereto, (ii) the
development of the Project, and (iii) liability for damage or claims for damage for personal
injury including death and claims for property damage which may arise from, or are
attributable to, Owners' (or Owners' contractors, subcontractors, agents, employees or other
persons acting on Owner's behalf ("Owners' Representatives") performance of their
respective obligations under this Agreement and/or the negligence or misconduct of Owners
or of Owners' Representatives which relate to the Project, the Property or City Property that
Owners' and/or Owners' representatives have maintenance and management obligations
with respect to. City shall not be liable for any damage to property of any Owners or of others
located on the Property, nor for the loss of or damage to any property of any Owner or of
others by theft or otherwise. City shall not be liable for any injury or damage to persons or
property resulting from fire, explosion, steam, gas, electricity, water, rain, dampness or leaks
from any part of the Property or from the pipes or plumbing, or from the street, or from any
environmental or soil contamination or hazard, or from any other latent or patent defect in
the soil, subsurface or physical condition of the Property, or by any other cause of whatsoever
nature relating to the Property or the Project.
The obligations of Owners under this Section 9.1 shall not apply to any Claims caused by the
negligent acts, errors, omissions or willful misconduct of the City or any City Indemnitees.
The provisions of this Section 9.1 shall survive the termination or expiration of this
Agreement.
9.2. Insurance Obligations.
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01203.0018/483444.8 17
Without limiting Owners' indemnification obligations set forth above, Owners shall obtain,
provide and maintain at its sole cost and expense during the entire term of this Agreement,
the following policies of insurance which shall cover the City and all City Indemnitees. Owners
shall provide certificates of insurance to City as evidence of the insurance coverage required
herein.
(a) General Liability Insurance. A policy of comprehensive commercial
general liability insurance with coverage at least as broad as Insurance Services Office
form CG 00 01, in an amount not less than $5,000,000 per occurrence, $10,000,000
general aggregate, for bodily injury, personal injury, and property damage. The policy
must include contractual liability that has not been amended. Any endorsement
restricting standard ISO "insured contract" language will not be accepted.
(b) Automobile Liability Insurance. A policy of automobile insurance at
least as broad as Insurance Services Office form CA 00 01 covering bodily injury and
property damage for all activities of the Owners arising out of or in connection with
the activities to be performed under this Agreement, including coverage for any
owned, hired, non-owned or rented vehicles, in an amount not less than $1,000,000
combined single limit for each accident.
(c) Professional Liability Insurance. A policy of professional liability
insurance in the minimum amount of $1,000,000 per claim and in the aggregate. Any
policy inception date, continuity date, or retroactive date must be before the Effective
Date of this Agreement and Owners agree to maintain continuous coverage
throughout the term of this Agreement.
(d) Workers’ Compensation Insurance. A policy of employers' liability
insurance with limits of at least $1,000,000, and a policy of workers' compensation
insurance in such amount as will fully comply with the laws of the State of California,
and which shall indemnify, insure and provide legal defense for the Owners against
any loss, claim or damage arising from any injuries or occupational diseases occurring
to any worker employed by or any persons retained by the Owners in the course of
carrying out the activities contemplated in this Agreement.
All insurance policies shall be issued by an insurance company currently authorized by the
Insurance Commissioner to transact business of insurance or is on the List of Approved
Surplus Line Insurers in the State of California, with an assigned policyholders’ rating of "A"
(or higher) and Financial Size Category Class VII (or larger) in accordance with the latest
edition of Best’s Key Rating Guide, unless otherwise approved by the City’s Risk Manager.
All insurance coverage maintained or procured pursuant to this Agreement shall be endorsed
to waive subrogation against City and City Indemnitees or shall specifically allow Owners or
others providing insurance evidence in compliance with these specifications to waive their
right of recovery prior to a loss. Owners hereby waive their respective rights of recovery
against City, and shall require similar written express waivers and insurance clauses from each
of its subconsultants. The waiver of subrogation endorsement in favor of City and City
Indemnitees shall be submitted to City together with the certificates of insurance required
hereunder.
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Coverage provided by Owners shall be primary and any insurance or self-insurance procured
or maintained by City shall not be required to contribute with it. The limits of insurance
required herein may be satisfied by a combination of primary and umbrella or excess
insurance. Any umbrella or excess insurance shall contain or be endorsed to contain a
provision that such coverage shall also apply on a primary and non-contributory basis for the
benefit of City before the City’s own insurance or self-insurance shall be called upon to protect
it as a named insured.
Owners acknowledge and agree that any actual or alleged failure on the part of the City to
inform Owners of non-compliance with any requirements contained within this Section 9.1
shall impose no additional obligations on the City nor does the City waive any rights
hereunder.
Requirements of specific coverage features or limits contained in this Section 9.1 are not
intended as a limitation on coverage, limits or other requirements, or a waiver of any
coverage normally provided by any insurance. Specific reference to a given coverage feature
is for purposes of clarification only as it pertains to a given issue and is not intended by any
party or insured to be all inclusive, or to the exclusion of other coverage, or a waiver of any
type. If the Owners maintain higher limits than the minimums shown above, the City requires
and shall be entitled to coverage for the higher limits maintained by the Owners. Any
available insurance proceeds in excess of the specified minimum limits of insurance and
coverage shall be available to the City to cover a valid Claim.
Owners agree to oblige its insurance agent or broker and insurers to provide to City with a
thirty (30) day notice of cancellation (except for nonpayment for which a ten (10) day notice
is required) or nonrenewal of coverage for each required coverage.
10. Vested Right. By entering into this Agreement and relying thereon, (i)
Owners are obtaining a vested right to proceed with the Project, subject to Sections 11 and
12 below, in accordance with the Development Plan, including the Approvals and Conditions
of Approval, and the Existing Land Use Regulations, and (ii) City is securing certain public
benefits and financing which help to alleviate current or potential problems in City and
enhance the public health, safety and welfare. City therefore agrees to the following:
10.1. No Conflicting Enactments. Subject to the terms and conditions
of Section 12 below, neither the City Council of City nor any other agency of City shall enact
any ordinance, policy, rule, regulation or other measure applicable to the Project which
relates to the rate, timing or sequencing of the development, the density, design,
construction standards and specifications of the development, or other matters applicable to
the construction of all or any part of the Project or which is otherwise in conflict with this
Agreement. This Section shall not restrict the City's ability in the event of a public emergency
to take such reasonable measures under its police powers to protect the public health and
safety as it deems necessary to deal with such emergency even if such measures are
incompatible with other terms of this Development Agreement, including, without limitation,
shutting off the water to the golf course if water on the golf course is causing or contributing
to the public emergency. Without limiting other matters which do not constitute a public
emergency, for purposes hereof, a public emergency shall not include matters which develop
over time such as, without limitation, traffic concerns or air quality issues; except, however,
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public emergency shall include any matter relating to the geologic stability of the Property
upon which the Project is located and the depth of the water table underlying said Property
which, in City's reasonable judgment, is adversely impacting the public health and safety. If
the geologic problem is being caused primarily by adjacent or upstream properties, City will
first take available actions against the owners of said other properties prior to taking action
against Owners of the subject Property. The parties acknowledge and agree that City is
restricted in its authority to limit its police power by contract and that the foregoing
limitations are intended to reserve to City all of its police power which cannot be so limited.
Notwithstanding the foregoing, this Agreement shall be construed, contrary to its stated
terms if necessary, to reserve to City all such power and authority which cannot be restricted
by contract.
10.2. Intent of Parties. In addition to and not in limitation of the
foregoing, it is the intent of the parties that no moratorium or other limitation (whether
relating to the rate, timing or sequencing of the development, the density, design,
construction standards and specifications of the development, or, subject to Sections 11 and
12 below, other matters applicable to the construction of all or any part of the Project and
whether or not enacted by initiative or otherwise) affecting subdivision maps, building
permits, occupancy certificates or other entitlements to use approved, issued or granted
within City, or portions of City, shall apply to the Project to the extent such moratorium or
other limitation is in conflict with this Agreement. Notwithstanding the foregoing, should an
ordinance, general plan or zoning amendment, measure, moratorium, policy, rule, regulation
or other limitation enacted by citizens of City through the initiative process be determined by
a court of competent and final jurisdiction to invalidate or prevail over all or any part of this
Agreement, Owners shall have no recourse against City pursuant to this Agreement, but shall
retain all other rights, claims and causes of action at law or in equity which Owners may have
independent of this Agreement.
11. General Development of the Project.
11.1. Project. While this Agreement is in effect, Owners shall have a
vested right to develop the Project in accordance with the terms and conditions of this
Agreement and the Development Plan, and City shall have the right to control the
development of the Project in accordance with the terms and conditions of this Agreement
and the Development Plan. Thus, the Development Plan shall control the overall design,
development and construction of the Project and all on-site and off-site improvements and
appurtenances in connection therewith, including, without limitation, all mitigation measures
(including those required to minimize or eliminate any potentially significant environmental
effects). The permitted uses of the Property, the density and intensity of use, the maximum
height and size of proposed buildings, the provisions for reservation and dedication of land
for public purposes and other terms and conditions of development applicable to the
Property shall be those set forth in the Development Plan.
11.2. Timing of Development. The parties acknowledge that although
Owners currently anticipate that the Project will be constructed and completed over an
approximate seven (7) year time frame, at the present time, Owners cannot predict when the
Project will be finally completed. Such decisions depend upon numerous factors which are
not within the control of Owners, such as market orientation and demand, interest rates,
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competition and other similar factors. To the extent permitted by the Development Plan and
this Agreement, Owners shall have the right to develop the Project in such order and at such
times as Owners deem appropriate within the exercise of its subjective business judgment,
so long as the Project is constructed as an integrated residential planned development as
contemplated by the Development Plan, including, without limitation, as set forth in VTTM
Nos. 50666 and 50667, the Approvals, and the Conditions of Approval.
11.3. Effect of Agreement on Land Use Regulations. The rules,
regulations and official policies governing permitted uses of the Property, the density and
intensity of use of the Property, the maximum height and size of proposed buildings and the
design, improvement and construction standards and specifications applicable to
development of the Property shall be as set forth in the Existing Land Use Regulations, which
were in force as of the effective date of the Original Development Agreement, subject to the
terms and conditions of this Agreement. In connection with any approval which City is
permitted or has the right to make under this Agreement relating to the Project, or otherwise
under its rules, regulations and official policies, City shall exercise its discretion or take action
in a reasonably expeditious manner which complies and is consistent with the Development
Plan and the standards, terms and conditions contained therein or in this Agreement.
Pursuant to Government Code Section 66452.6, the term of any tentative map for the
Property (including, without limitation VTTM Nos. 50666 and 50667), street vacation, and
development plan review shall automatically be extended for the term of this Agreement.
11.4. Agreement to Maintain Property and Amenities And To Pay
Certain Revenues To City. Each Owner hereby agrees that such Owner and any subsequent
owner(s) of any parcel of the Property which comprise the golf course shall comply with all
covenants, conditions, restrictions and obligations set forth in (i) the Restated Declaration
attached hereto as Exhibit G which shall be recorded as a covenant against the parcels
comprising the golf course and shall continue in effect notwithstanding the expiration or
termination of this Agreement, (ii) the Conditions of Approval, and (iii) all other documents
and agreements referred to in Section 3.1 above.
City covenants that, in consideration for Owners guarantying the payment of the golf tax
discussed in the Restated Declaration, Owners shall not be obligated to pay any other similar
tax or fee or comply with any similar exaction imposed in connection with the operation of
the golf course, provided, however, this paragraph shall not be construed to preclude the
imposition of taxes or fees which are imposed on a City-wide basis either on all business
owners or on all property owners.
The provisions of this Section 11.4 shall survive the termination or expiration of this
Agreement.
11.5. Owners' Obligations Regarding Habitat Conservation Areas.
The HCP includes a mitigation/restoration program for the preservation of and enhancement
of certain areas both on-site and on properties located near the Property which are owned
or will be owned by City ("habitat conservation areas"), which Owners are obligated to
adhere to. The HCP provides, among other things, that while it is initially the Owners'
responsibility (as successors-in-interest to Original Developer), to ensure that the habitat is
planted and established, the City is to perform the long term maintenance of the habitat
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conservation areas located on the Property and off-site, including property owned by the City
(all such City-owned property, "City Property"). It is the intent of this Agreement that in
addition to the initial maintenance of the habitat conservation areas, Owners shall perform
City's long term maintenance responsibilities, to City's reasonable satisfaction as more
particularly described in the Restated Declaration. In addition, Owners (or their
predecessors-in-interest to the Property) have previously deeded to City the three public
parks and certain other open space and on-site habitat conservation areas depicted on
Exhibits E, and F, attached hereto. As more particularly set forth in the Restated Declaration,
if Owners or any subsequent owner(s) of those parcels of the Property which comprise the
golf course do not fulfill their maintenance obligations with respect to the habitat
conservation areas located on the Property, City Property, and other offsite property to City's
reasonable satisfaction, then, after providing Owners with the notice and opportunity to cure
the default set forth in Section 16.1 of this Agreement, City may (i) seek specific performance
or seek any other remedies or causes of action that City may have for such default at law or
in equity, and/or (ii) assume such maintenance obligations, and in such case, in addition to
the tax to be paid pursuant to the first paragraph of Section 11.4(a) above, Owners or any
subsequent owner(s) of such parcels shall pay a fee to City in the amount of One Dollar ($1.00)
per round of golf (or any portion thereof) played on the golf course to be developed as part
of the Project. The provisions of this Section 11.5 shall survive the termination of this
Agreement.
11.6. Maintenance and Management of Parks, Open Space, Trails,
Habitat Areas, Public Amenities, Roads, and Parking Areas; and Access to Such Property.
Owners' predecessors-in-interest previously agreed to perform revegetation work, habitat
restoration, conservation programming, landscape enhancement, and long term
maintenance and monitoring on the Property, the Switchbacks Area, the Shoreline Property,
certain City Property, and other off-site property as set forth in, or shown on, the HCP,
Implementing Agreement, Restated Declaration, Conditions of Approval, Recorded
Obligations, Dedication Map, and the Final Public Amenities Map. In connection therewith,
City issued a license to Owners' predecessor-in-interest to allow access and use of the
Shoreline Property, as set forth under that certain Shoreline Park License Agreement, dated
as of September 5, 2000 and recorded in the Official Records on September 18, 2000 as
Instrument No. 00-1456232, which the City and Owners have agreed to amend in connection
with this Agreement as set forth in that certain First Amendment to Shoreline Park License
Agreement, shown on Exhibit H, attached hereto (the "Shoreline Park License Amendment"),
which shall be recorded against the portion of the Property that comprises the golf course.
In addition, in order to provide for Owners' continued maintenance and management
obligations for the Switchbacks Area and additional City Property, City has agreed to grant
Owners' and any subsequent owners(s) of those parcels of the Property which comprise the
golf course a license to access the Switchbacks Area and certain other City Property as set
forth in that certain License Agreement (Switchbacks Area and Other City Property) set forth
on Exhibit I, attached hereto (the "License Agreement"), which shall be recorded against the
portion of the Property which comprises the golf course. Owners and any subsequent
owner(s) of those parcels of the Property which comprise the golf course shall continue to
perform such maintenance and management activities on the Property, the Switchbacks
Area, the Shoreline Property, the City Property, and on the other off-site property as required
under the HCP, Implementing Agreement, Conditions of Approval, Restated Declaration, and
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Recorded Obligations, and as shown on the Dedication Map and Final Public Amenities Map.
The Owners acknowledge and agree that they are obligated to install certain improvements
and enhancements approved by the City for landscaping on the parkways and median along
Palos Verdes Drive South between Schooner Drive and La Rotonda Drive, but are not
obligated to maintain such improvements and enhancements once they are installed. The
provisions of this Section 11.6 shall survive the termination of this Agreement.
11.7. Satisfaction of Park Fee Requirements. In consideration of the
Owners (or their predecessors-in-interest) dedication and improvement of three parks on the
Property and compliance with the obligations contained under the Restated Declaration that
the Owners and any other owner(s) of the golf course parcels shall maintain said parks and
other areas specified in the Restated Declaration, Owners shall be deemed to have satisfied
all park fee requirements of City, and no further park fees or exactions shall be applicable to
the development of the Project, except as otherwise set forth herein.
11.8. Development Fees. Subject to the terms and conditions of
Section 12 below, City shall not, without the prior written consent of Owners, impose or
increase any fees or exactions applicable to the development of the Property or any portion
thereof, or impose any such fees or exactions as a condition to the implementation of the
Project or any portion thereof, except the following:
(a) those fees, taxes or City assessments which exist as the
effective date of the Original Development Agreement or are included or contemplated in the
Development Plan (including those described in the Approvals and/or Conditions of
Approval), or the application of escalation clauses which, as of the effective date of the
Original Development Agreement, were in place in connection with those fees and exactions
in effect as of the effective date of the Original Development Agreement;
(b) any fees, taxes, or assessments required under the
Conditions of Approval or under any mitigation measures imposed on the Project by the
Project CEQA Environmental Documentation, which were effective as of the Effective Date,
including, without limitation the golf fees described in the Restated Declaration set forth in
Exhibit G attached hereto;
(c) any fees or taxes, and increases thereof, imposed on a
City-wide basis such as business license fees or taxes, sales or use taxes, utility taxes, and
public safety taxes;
(d) any future fees or assessments imposed on an area-
wide basis (such landscape and lighting assessments and community services assessments),
provided that each Owner reserves its right to protest the establishment or amount of any
such fees or assessments through the method prescribed by law; and
(e) any fees imposed pursuant to any assessment district
established within the Project area otherwise proposed or consented to by Owners.
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11.9. Reimbursement of City Costs. Owners shall reimburse City for
all of City's costs and expenses in connection with the preparation, negotiation and
performance of this Agreement, City costs and expenses in connection with the processing of
the applications for the Project and the Approvals or any Subsequent Development Approvals
for the Project, and City's costs and expenses in connection with the preparation and
negotiation of all additional agreements and approvals relating to the transactions
contemplated by this Agreement, including staff costs, fees and expenses of legal counsel,
and consultant costs, if any, in each case engaged by City for services directly related to the
Project, this Agreement, and the transactions contemplated by this Agreement.
11.10 Public Works. Any public works facilities which will be
constructed by Developer and dedicated to City or any other public agency upon completion
shall be constructed in accordance with the design and construction standards as would be
applicable to City or such other public agency should it have undertaken such construction.
This Section shall not be interpreted to require public bids or any other similar requirements
unless otherwise required by applicable law.
12. Rules, Regulations, and Official Policies.
12.1. Reservation of Authority. This Agreement shall not prevent City
from applying the following Subsequent Land Use Regulations:
(a) Processing fees and charges of any kind or nature
imposed by City to cover the estimated actual costs to City of processing applications for
Subsequent Development Approvals or, for monitoring compliance with any Subsequent
Development Approvals, or for monitoring compliance with environmental impact mitigation
measures; provided such fees and charges are uniformly imposed by City on all similar
applications and for all similar monitoring.
(b) Procedural regulations relating to hearing bodies,
petitions, applications, notices, findings, records, hearings, reports, recommendations,
appeals and any other matters of procedure; provided such regulations are uniformly
imposed by City on all similar matters.
(c) Regulations governing construction standards and
specifications which are of general application which establish standards for the construction
and installation of structures and associated improvements such as and including, without
limitation, the Uniform Code, the City's Building Code, Plumbing Code, Mechanical Code,
Electrical Code, and Fire Code; provided that such construction standards and specifications
(i) are applied on a City-wide basis and (ii) do not reduce the amount of land within the
Property which can be utilized for structures and improvements or increase the amount of
open space within the Property.
(d) Regulations which are not in conflict with the
Development Plan or this Agreement.
(e) Regulations which are in conflict with the Development
Plan or this Agreement if such regulations have been consented to in writing by an Owner or
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01203.0018/483444.8 24
which the City determines are materially necessary to protect the public health, safety, and
welfare.
(f) Federal, State, County, and multi-jurisdictional laws and
regulations which City is required to enforce as against the Property or the development of
the Property.
(g) Subsequent Land Use Regulations applicable to local or
regional development impact fees.
In furtherance of the foregoing, the parties acknowledge that other public agencies not
subject to control by City may possess authority to regulate aspects of the development of
the Property, and this Agreement does not limit the authority of such other public agencies.
12.2. Subsequent Actions and Approvals. In accordance with
Government Code Section 65866, this Agreement shall not prevent City in subsequent actions
applicable to the Property from applying new rules, regulations and policies which do not
conflict with the Existing Land Use Regulations or any rules, regulations and policies otherwise
set forth in the Development Plan or this Agreement, nor shall this Agreement prevent City
from denying or conditionally approving any subsequent development project application on
the basis of the Existing Land Use Regulations.
12.3. State and Federal Laws. In the event that state or federal laws
or regulations, enacted after the Effective Date, prevent or preclude compliance with one or
more of the provisions of this Agreement, such provisions of this Agreement shall be modified
or suspended as may be necessary to comply with such state or federal laws or regulations;
provided, however, that this Agreement shall remain in full force and effect to the extent it is
not inconsistent with such laws or regulations and to the extent such laws or regulations do
not render such remaining provisions impractical to enforce.
13. Amendment or Cancellation of Agreement. This Agreement may be
amended or canceled in whole or in part only by mutual consent of the parties in the manner
provided for in Government Code Section 65868.
14. Enforcement. Unless amended or canceled as provided in Section 13,
or modified or suspended pursuant to Government Code Section 65869, this Agreement is
enforceable by any party hereto notwithstanding any change in any applicable general or
specific plan, zoning, subdivision or building regulation or other applicable law or regulation
adopted by City (or by the voters of City unless found by a court of competent and final
jurisdiction to prevail over this Agreement) which alters or amends the Development Plan or
the timing of any development.
15. Annual Review of Compliance With Agreement.
15.1. Annual Review. City and Owners shall review this Agreement at
least once every twelve (12) months from the date this Agreement is executed in accordance
with Section 17.82.080 of the Municipal Code. City shall notify Owners in writing of the date
for review at least thirty (30) days prior thereto. However, City's failure to comply with this
Section 15.1 shall not affect the validity of this Agreement. In addition, the City Council may,
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01203.0018/483444.8 25
in its sole and absolute discretion, order a special review of compliance with this Agreement
at any time at Owners' sole cost ("Special Review"). Owners shall cooperate with the City in
the conduct of such Special Reviews.
15.2. Good Faith Compliance. During each annual review or Special
Review, Owners shall be required to demonstrate good faith compliance with the terms of
this Agreement. If the City Manager / Director of Community Development or City Council,
as applicable, finds on the basis of substantial evidence that Owners have complied in good
faith with the terms and conditions of this Agreement, the review shall be concluded. If the
City Manager / Director of Community Development or City Council, as applicable, reasonably
determines that one or more Owners have not complied in good faith with the terms and
conditions of this Agreement, the City may modify or terminate this Agreement as provided
in Section 16 after City's delivery of a written notice of default to the Owners, provided that
Owners fail to cure the default specified by City within sixty (60) days, or to commence such
cure and work diligently to complete that cure within a reasonable time period.
16. Events Of Default.
16.1. Default by Owners. If City determines on the basis of
substantial evidence that an Owner has not complied in good faith with the terms and
conditions of this Agreement, City shall, by written notice to such Owner, specify the manner
in which such Owner has failed to so comply and state the steps such Owner must take to
bring itself into compliance. If, within sixty (60) days after the effective date of notice from
City specifying the manner in which such Owner has failed to so comply, such Owner does not
commence all steps reasonably necessary to bring itself into compliance as required and
thereafter diligently pursue such steps to completion within a reasonable time period
thereafter, then such Owner shall be deemed to be in default under the terms of this
Agreement and City may terminate this Agreement or seek specific performance as set forth
in Section 16.3.
16.2 Default by City. If an Owner determines on the basis of
substantial evidence that City has not complied in good faith with the terms and conditions
of this Agreement, such Owner shall, by written notice to City, specify the manner in which
City has failed to so comply and state the steps City must take to bring itself into compliance.
If, within sixty (60) days after the effective date of notice from such Owner specifying the
manner in which City has failed to so comply, City does not commence all steps reasonably
necessary to bring itself into compliance as required and thereafter diligently pursue such
steps to completion within a reasonable time period thereafter, then City shall be deemed to
be in default under the terms of this Agreement and such Owner may terminate such
provisions of this Agreement as it is bound by, or if the applicable Owner is the Developer,
this entire Agreement, or seek specific performance as set forth in Section 16.3.
16.3 Specific Performance Remedy. Due to the size, nature and
scope of the Project, and due to the fact that it is not, and will not, be practical or possible to
restore the Property to its natural condition once implementation of this Agreement has
begun, the parties acknowledge that money damages and remedies at law generally are
inadequate and that specific performance is appropriate for the enforcement of this
Agreement. Therefore, the remedy of specific performance shall be available to all parties
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01203.0018/483444.8 26
hereto. This subsection shall not limit any other rights, remedies, or causes of action that any
party may have at law or equity.
17. Institution of Legal Action. In addition to any other rights or remedies,
a party may institute legal action to cure, correct or remedy any default, to enforce any
covenants or agreements herein, to enjoin any threatened or attempted violation hereof, to
recover damages for any default, or to obtain any other remedies consistent with the
purposes of this Agreement. Any such legal action shall be brought in the Superior Court for
Los Angeles County, California.
18. Waivers and Delays.
18.1. Waiver. Failure by a party to insist upon the strict performance
of any of the provisions of this Agreement by another party, and failure by a party to exercise
its rights upon a default by another party hereto, shall not constitute a waiver of such party's
right to demand strict compliance by such other party in the future.
18.2. Third Parties. Nonperformance shall not be excused because
of a failure of a third person except as provided in Section 18.3 below.
18.3. Force Majeure. No party shall be deemed to be in default
where failure or delay in performance of any of its obligations under this Agreement is caused
by floods, earthquakes, other Acts of God, fires, wars, riots or similar hostilities, strikes, other
labor difficulties, government regulations, court actions, or other causes beyond the party's
control.
19. Notices. All notices, including, without limitation, all approvals and
consents, required or permitted under this Agreement shall be delivered in person, by
messenger, by overnight mail courier, or by registered or certified mail, postage prepaid,
return receipt requested, to Owners and/or City at its address shown below, or to any other
notice address designated in writing by such party. Any notice so delivered by messenger
shall be deemed delivered upon actual delivery. Any notice so delivered by US mail shall be
deemed delivered three (3) days after deposit in the US Mail.
TO CITY: City of Rancho Palos Verdes
30940 Hawthorne Blvd.
Rancho Palos Verdes, CA 90275
Attn: City Manager
AND TO: Aleshire & Wynder, LLP.
2361 Rosecrans Ave., Suite 475
El Segundo, CA 90245
Attn: William Wynder
TO DEVELOPER: VH Property Corp.
dba Trump National Golf Club Los Angeles
One Trump National Drive
Rancho Palos Verdes, CA 90275
Attn: Jill A. Martin
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01203.0018/483444.8 27
AND TO: VH Property Corp.
dba Trump National Golf Club Los Angeles
725 Fifth Avenue
New York, NY 10022
Attn: Alan Garten, Chief Legal Officer
TO VHPS: VHPS, LLC
c/o One Trump National Drive
Rancho Palos Verdes, CA 90275
Attn: Jill A. Martin
AND TO: VHPS, LLC
725 Fifth Avenue
New York, NY 10022
Attn: Alan Garten, Chief Legal Officer
Any party may change the address stated herein by giving notice, in writing, to the other
parties and thereafter notices shall be addressed and submitted to the new address.
20. Attorneys' Fees. If legal action is brought by a party against any other
for breach of this Agreement, or to compel performance under this Agreement, the prevailing
party shall be entitled to recover from the other party or parties all reasonable costs and
expenses, including reasonable attorneys’ fees and court costs incurred by the prevailing
party in any such dispute (whether or not such dispute is prosecuted to a final judgment or
other final determination), together with all reasonable costs of enforcement and/or
collection of any judgment. Attorney’s fees shall include attorney’s fees on any appeal, and
in addition a party entitled to attorney’s fees shall be entitled to all other reasonable costs
for investigation of such action, including the conducting of discovery.
21. Transfers and Assignments.
21.1. Right to Assign. Except as specifically provided in Sections 21.2
and 21.3, no party shall Transfer (as hereinafter defined) its interests, rights or obligations
under this Agreement without the prior written consent of the other, which consent shall not
be unreasonably withheld or delayed. Notwithstanding the foregoing, City shall have the
right to sell, assign or transfer its interest in any real property dedicated or transferred to City
pursuant to the terms of this Agreement to another public agency. A "Transfer" means any
hypothecation, sale, conveyance, lease, assignment or other transfer of the Developer’s
rights under this Agreement or of the Property together with any rights or obligations under
this Agreement; which shall include the transfer to any person or entity of more than twenty
percent (20%) of the present equity ownership and/or more than twenty percent (20%) of
the voting control of an Owner or any managing member of an Owner in the aggregate, taking
all transfers into account on a cumulative basis, except Transfers of such ownership or control
interest between members of the same immediate family, or transfers to a trust,
testamentary or otherwise, in which the beneficiaries are limited to members of the
transferor's immediate family, or transfers between or among affiliates. A "Transfer" shall
not include the following:
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01203.0018/483444.8 28
(a) Any Transfer to a Mortgage holder and any resulting
foreclosure (or deed or assignment in lieu of foreclosure) therefrom.
(b) The granting of easements or dedications to any
appropriate governmental or quasi-governmental agency or utility or permits to facilitate the
development of the Property.
(c) A Transfer resulting from or in connection with a
reorganization as contemplated by the provisions of the Internal Revenue Code of 1986, as
amended or otherwise, in which the ownership interests of a corporation or other entity are
assigned directly or by operation of law to a person or entity which acquires the control of
the voting capital stock of such corporation or other entity or all or substantially all of the
assets of such corporation or other entity.
(d) A Transfer between or among affiliates or wholly-
owned subsidiaries of the applicable Owner.
(e) A Transfer of common areas to a property owner's
association.
(f) The execution of any leases or subleases within the
Project for occupancy purposes.
(g) The sale of individual residential units within the
residential portion of the Project.
21.2 Right to Assign or Transfer Property. Owners shall have the
right to sell, transfer or assign the Property in whole or in part (provided that no such partial
transfer shall be permitted to cause a violation of the Subdivision Map Act, Government Code
Section 66410, et seq.) to any person, partnership, joint venture, firm, corporation or other
entity at any time during the term of this Agreement; provided, however, that any such sale,
transfer or assignment shall include an assignment and an unconditional assumption of the
rights, duties and obligations arising under or from this Agreement and shall be made in strict
compliance with the following conditions precedent:
(a) No sale, transfer or assignment of any right or interest under this Agreement shall be made
unless made together with the sale, transfer or assignment of all or a part of the Property.
(b) Thirty (30) days prior to any such sale, transfer or assignment, the applicable Owner shall
notify City, in writing, of such sale, transfer or assignment and of whether the transferee or
assignee has assumed any of such Owner's obligations hereunder, and such Owner shall
provide City with a copy of the form of such assignment agreement ("Assignment").
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01203.0018/483444.8 29
Any sale, transfer or assignment not made in strict compliance with the foregoing conditions
shall constitute a default by such Owner under this Agreement.
21.3. Release of Transferring Owner. Notwithstanding any sale,
transfer or assignment, the transferring Owner shall continue to be obligated under this
Agreement unless such Owner is given a release or a partial release in writing by City, which
release or partial release shall be provided by City following its satisfaction with such Owner’s
compliance with the following conditions:
(a) Such transferring Owner no longer has any legal or equitable interest in any part of the
Property for which the release is requested.
(b) Such Owner is not then in default under this Agreement.
(c) Such Owner has provided City with an executed copy of the Assignment.
(d) Such assignee or transferee has assumed such duties and obligations as to which the
transferring Owner is requesting to be released in a manner approved by City, and such
Owner has provided City with written evidence, in a form and substance satisfactory to City,
demonstrating the experience, capability, competence, and financial ability of the proposed
transferee or assignee to carry out such obligations for which such Owner is requesting a
release.
(e) Such Owner has caused the applicable assignee or transferee to provide City with adequate
security for performance of the obligations of such Owner under this Agreement.
21.4. Termination of Agreement with Respect to Individual Parcels
Upon Sale to Public. Notwithstanding any provisions of this Agreement to the contrary, the
burdens of this Agreement shall terminate as to any lot or parcel which has been finally
subdivided and individually leased or sold for residential purposes to the purchaser or user
thereof and thereupon and without the execution or recordation of any further document or
instrument such lot or parcel shall be released from and no longer be subject to or burdened
by the provisions of this Agreement; provided, however, that the benefits of this Agreement
shall continue to run as to any such lot until a building is constructed on such lot (and a
certificate of occupancy is issued therefor) or until the termination of this Agreement, if
earlier. Nothing herein shall be construed as exempting any such lot from the provisions of
the Development Plan or other applicable rules and regulations.
22. Cooperation in the Event of Legal Challenge. In the event of any legal
action instituted by a third party or other governmental entity or official challenging the
validity of any provision of this Agreement or any of the Claims described in Section 9, above,
the parties hereby agree to cooperate in defending such action. Provided that each of the
Owners have been permitted to select the legal counsel to represent such Owners and City
in connection with such action, subject to approval by City, which shall not be unreasonably
withheld, (i) Owners shall reimburse City for its costs and legal expenses incurred after the
date of this Agreement in any such action, including, without limitation, its City Attorneys'
fees and costs or other legal counsel in reviewing and supervising such action, and (ii) if in any
such action there is an order, ruling, or judgment which includes a requirement that the City
pay damages or reimburse any party for legal fees or costs incurred in connection with that
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01203.0018/483444.8 30
action, each Owner hereby agrees that it will pay said damages, fees and costs.
Notwithstanding the foregoing, it is expressly agreed that the City shall have the right to
utilize the City Attorney’s office or use other legal counsel of its choosing. Owners' obligation
to pay the defense costs of the City shall extend until final judgment, including any appeals.
City agrees to fully cooperate with Owners in the defense of any matter in which any Owner
is defending and/or holding the City harmless. If City or any of the Owners determine that
the legal counsel selected would have a conflict of interest in representing such Owner and
City, then City may engage its own legal counsel to represent City in connection with such
action, which shall be fully reimbursed by such Owner, provided that City defends the action
in good faith. Additionally, in such event, the applicable Owner shall not be required to pay
any amounts pursuant to any settlement entered into by City without such Owner's consent
unless the settlement (i) does not admit fault of the Owners, (ii) contains a release of the
Owners, and (iii) does not require the payment of funds by Owners under the indemnity or
otherwise. In the event of any litigation challenging the effectiveness of the Agreement, or
any portion hereof, this Agreement shall remain in full force and effect while such litigation,
including any appellate review, is pending.
23. Protect as a Private Undertaking. It is specifically understood and
agreed by and between the parties hereto that the development of the Project is a private
development, that no party is acting as the agent of the other in any respect thereunder, and
that each party is an independent contracting entity with respect to the terms, covenants and
conditions contained in this Agreement. No partnership, joint venture or other association
of any kind is formed by this Agreement. The only relationship between City and Owners is
that of a government entity regulating the development of private property by the owner of
such property.
24. Eminent Domain. No provision of this Agreement shall be construed
to limit or restrict the exercise by City of its power of eminent domain.
25. Authority to Execute. The persons executing this Agreement on behalf
of the parties hereto warrant that (i) such party is duly organized and existing, (ii) they are
duly authorized to execute and deliver this Agreement on behalf of said party, (iii) by so
executing this Agreement, such party is formally bound to the provisions of this Agreement
applicable to that Party, and (iv) the entering into this Agreement does not violate any
provision of any other Agreement to which said party is bound.
26. Recordation. This Agreement and any amendment or cancellation
hereto shall be recorded in the Official Records.
27. Protection of Mortgage Holders. Nothing contained herein shall limit
or interfere with, and no breach hereof shall diminish or impair, the lien of any mortgage
holder having a mortgage made in good faith and for value on any portion of the Property.
"Mortgage holder" includes the beneficiary under a deed of trust, and "mortgage" includes
any deed of trust. Notwithstanding anything to the contrary contained herein, no mortgage
holder shall have any obligation or duty under this Agreement to perform any of Owner's
obligations hereunder, except that: (i) to the extent that any obligation to be performed by
any Owner is a condition to the performance of an obligation by City, the performance
thereof shall continue to be a condition precedent to City's performance hereunder, and (ii)
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01203.0018/483444.8 31
such lender shall be responsible for performing any continuing obligation of the applicable
Owner (such as payment of money, dedication obligations, and/or performance of
maintenance), which accrues while such lender holds title to the Property or portion thereof.
City shall have no greater remedy against any such lender than it would have had against the
applicable Owner had the applicable Owner continued to hold title to the Property or portion
thereof. If a Mortgage holder requests that City give such Mortgage holder a copy of all
notices given to Owners hereunder, then City shall deliver to such Mortgage holder,
concurrently with delivery to such Owner, any notice given to such Owner pursuant to this
Agreement. Each Mortgage holder shall have the right (but not the obligation) for a period
of ninety (90) days after receipt of such notice from City, to cure or remedy, or to commence
to cure or remedy, the matter set forth in the notice (if such matter relates to a default by
the applicable Owner). If such matter is of a nature which can only be remedied or cured by
such Mortgage holder upon obtaining possession, such Mortgage holder shall seek to obtain
possession with diligence through foreclosure, a receiver or otherwise, and shall thereafter
remedy or cure the matter within thirty (30) days after obtaining possession. If any such
matter cannot be remedied or cured within such thirty (30) day period, then such Mortgage
holder shall have such additional time as may be reasonably necessary (as mutually agreed
by such Mortgage holder and City) to remedy or cure such matter, provided such Mortgage
holder is diligently pursuing such cure to completion.
28. Severability of Terms. If any term, provision, covenant or condition of
this Agreement shall be determined invalid, void or unenforceable, the remainder of this
Agreement shall not be affected thereby to the extent such remaining provisions are not
rendered impractical to enforce.
29. Subsequent Amendment to Authorizing Statute. This Agreement has
been entered into in reliance upon the provisions of the statute governing development
agreements (Government Code Section 65864 - 65869.5 inclusive) in effect as of the effective
date of the Original Development Agreement. Accordingly, subject to Section 12.3 above, to
the extent a subsequent amendment to the Government Code would affect the provisions of
this Agreement, such amendment shall not be applicable to this Agreement unless necessary
for this Agreement to be enforceable or unless this Agreement is modified pursuant to the
provisions set forth in this Agreement and Government Code Section 65868.
30. Interpretation and Governing Law. This Agreement and any dispute
arising hereunder shall be governed and interpreted in accordance with the laws of the State
of California. The agreements contained herein shall not be construed in favor of or against
either party but shall be construed as if all parties prepared this Agreement.
31. Section Headings. All section headings and subheadings are inserted
for convenience only and shall not affect any construction or interpretation of this
Agreement.
32. Incorporation of Recitals and Exhibits. The Recitals and attached
Exhibits A through K are hereby incorporated into this Agreement by this reference as though
fully set forth in full.
33. Rules of Construction and Miscellaneous Terms.
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01203.0018/483444.8 32
33.1. Gender. The singular includes the plural; the masculine gender
includes the feminine; "shall" is mandatory, "may" is permissive.
33.2. Time of Essence. Time is of the essence regarding each
provision of this Agreement in which time is an element.
33.3. Cooperation. Each of the parties shall cooperate with and
provide reasonable assistance to the other to the extent contemplated hereunder in the
performance of all obligations under this Agreement and the satisfaction of the conditions of
this Agreement. Upon the request of either party at any time, the other party shall promptly
execute, with acknowledgment or affidavit if reasonably required, and file or record such
required instruments and writings and take any actions as may be reasonably necessary under
the terms of this Agreement to carry out the intent and to fulfill the provisions of this
Agreement or to evidence or consummate the transactions contemplated by this Agreement.
34. Estoppel. Either City or any Owner (the "sending party") may, at any
time, and from time to time, deliver written notice to the other party (the "receiving party")
requesting that the receiving party certify in writing that: (a) this Agreement is in full force
and effect and a binding obligation of the receiving party; (b) this Agreement has not been
amended or modified either orally or in writing, or if so amended, identifying the
amendments, and (c) the sending party is not in default in the performance of its obligations
under this Agreement, or if in default, to describe therein the nature and amount of any such
defaults. The receiving party shall execute and return such certificate within thirty (30) days
following the receipt thereof. City acknowledges that a certificate hereunder may be relied
upon by transferees and any Mortgage holder.
35. Recitals. The recitals above are hereby incorporated herein and made
a part of this Agreement.
36. Counterparts. This Agreement may be executed by the parties in
counterparts, which counterparts shall be construed together and have the same effect as if
all of the parties had executed the same instrument.
[SIGNATURES APPEAR ON THE FOLLOWING PAGES]
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01203.0018/483444.8
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the date
and year first-above written.
DEVELOPER:
VH PROPERTY CORP.,
a Delaware corporation
By:_________________________________
Name:
Title:
By:_________________________________
Name:
Title:
VHPS:
VHPS, LLC,
a Delaware limited liability company
By:_________________________________
Name:
Title:
By:_________________________________
Name:
Title:
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01203.0018/483444.8
CITY:
CITY OF RANCHO PALOS VERDES, a
municipal corporation
________________________________
Susan M. Brooks, Mayor
ATTEST:
_________________________________
Emily Colborn, City Clerk
APPROVED AS TO FORM:
ALESHIRE & WYNDER, LLP
_________________________________
William W. Wynder, City Attorney
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01203.0018/483444.8
NOTARY ACKNOWLEDGMENT PAGES
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01203.0018/483444.8
CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT
STATE OF CALIFORNIA
COUNTY OF LOS ANGELES
On __________, 2018 before me, ________________, personally appeared ________________, proved to me on
the basis of satisfactory evidence to be the person(s) whose names(s) is/are subscribed to the within instrument and
acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by
his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted,
executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true
and correct.
WITNESS my hand and official seal.
Signature: _____________________________________
STATE OF CALIFORNIA
COUNTY OF LOS ANGELES
On __________, 2018 before me, ________________, personally appeared ________________, proved to me on
the basis of satisfactory evidence to be the person(s) whose names(s) is/are subscribed to the within instrument and
acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by
his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted,
executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true
and correct.
WITNESS my hand and official seal.
Signature: _____________________________________
A notary public or other officer completing this certificate verifies only the identity of the individual who signed
the document to which this certificate is attached, and not the truthfulness, accuracy or validity of that
dt
A notary public or other officer completing this certificate verifies only the identity of the individual who signed
the document to which this certificate is attached, and not the truthfulness, accuracy or validity of that
dt
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01203.0018/483444.8
EXHIBIT A-1
Description / Depiction of the Property
[LEFT OUT INTENTIONALLY]
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EXHIBIT A-2
Description / Depiction of the VHPS Property
[LEFT OUT INTENTIONALLY]
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EXHIBIT B
Depiction of Parcels Owned by the City
[LEFT OUT INTENTIONALLY]
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01203.0018/483444.8
EXHIBIT C
Permits and Approvals Constituting the Development Plan
The Project is permitted based on permits and approvals as set forth below. These approvals
only include those issued by the California Coastal Commission and the City of Rancho Palos
Verdes and do not necessarily include other approvals from state or federal agencies which
may have also been issued to the Developer.
California Coastal Commission:
• Coastal Development Permit No. A-5-RPV-93-005 (i.e., Coastal Permit No. (103)),
which was subsequently amended from time to time up to and including Coastal
Development Permit No. A-5-RPV-93-005-A24
City of Rancho Palos Verdes:
• City Council Resolution No. 92-53 (certifying Environmental Impact Report No. 36),
and all addenda, supplements, and modifications to Environmental Impact Report
No. 36 approved by the City
• Vesting Tentative Tract Map No. 50666
• Final Tract Map No. 50667
• Parcel Map Nos. 20970 and 23004
• Conditional Use Permit Nos. 162 and 163 and various amendments / modifications
thereto, up to and including pursuant to City Council Resolution No. 2018-39
(Revision “FFF” to Conditional Use Permit No. 163)
• City Council Resolution No. 2016-08 (Variance)
• City Council Resolution No. 2000-58 (Mitigated Negative Declaration and a
Mitigation Monitoring Program)
• City Council Resolution No. 2005-62 (Mitigated Negative Declaration)
• City Council Resolution No. 2012-03 (Addendum No. 1 to Mitigated Negative
Declaration)
• City Council Resolution No. 2013-28 (Addendum No. 2 to Mitigated Negative
Declaration)
• Revision “M” (Amendment to Habitat Conservation Plan)
• ZON2015-00040 (Grading Permit No. 1541)
• City Council Resolution No. 2018-__ (Public Amenities Plan)
• City Council Resolution No. 2018-__ (Final Tract Map No. 50666)
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01203.0018/483444.8
EXHIBIT D
Conditions of Approval
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EXHIBIT E
Dedication Map
[INTENTIONALLY LEFT OUT]
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EXHIBIT F
Final Public Amenities Plan
[INTENTIONALLY LEFT OUT]
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EXHIBIT G
Form of Amended and Restated Declaration of Restrictions
[INTENTIONALLY LEFT OUT]
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EXHIBIT H
Shoreline Park License Amendment
[INTENTIONALLY LEFT OUT]
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EXHIBIT I
License Agreement
[INTENTIONALLY LEFT OUT]
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EXHIBIT J
Chapter 3.40 of the Rancho Palos Verdes Municipal Code
[INTENTIONALLY LEFT OUT]
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Exhibit K
Project CEQA Environmental Documentation
On June 2, 1992, the City Council of City adopted Resolution No. 92-53, which certified
Environmental Impact Report No. 36
On December 7, 1992, the City Council of City adopted Resolution No. 92-115, which
approved an Addendum to the Environmental Impact Report No. 36 for revisions to the
Project, in accordance with the provisions of CEQA; and
On October 5, 1993, the City Council of City adopted Resolution No. 93-89, which approved
Addendum No. 2 to the Environmental Impact Report No. 36 for additional revisions to the
Project, in accordance with the provisions of CEQA; and
On September 6, 1994, the City Council of City adopted Resolution No. 94-71, which approved
Addendum No. 3 to the Environmental Impact Report No. 36 for additional revisions to the
Project, in accordance with the provisions of CEQA; and
On March 11, 1996, the City Council of City adopted Resolution No. 96-15, which approved
Addendum No. 4 to the Environmental Impact Report No. 36 for additional revisions to the
Project, in accordance with the provisions of CEQA; and
On September 3, 1996, the City Council of City adopted Resolution No. 96-72, which approved
Addendum No. 5 to the Environmental Impact Report No. 36 including a Mitigation
Monitoring Program for additional revisions to the Project, in accordance with the provisions
of CEQA; and
On October 23, 1997, the City Council of City adopted Resolution No. 97-92, which approved
Addendum No. 6 to the Environmental Impact Report No. 36 to revise the project description
to include the preparation of the Original Development Agreement, in accordance with the
provisions of CEQA; and
On July 14, 1998, the Planning Commission adopted Resolution Nos. 98-26 and 98-27,
recommending approval of Addendum No. 6 to Environmental Impact Report No. 36 in
connection with certain revisions to Conditional Use Permit No. 163, in accordance with the
provisions of CEQA; and
On August 18, 1998, the City Council adopted Resolution No. 98-76 approving Addendum No.
6 to Environmental Impact Report No. 36 to accommodate additional revisions to the Project,
in accordance with the provisions of CEQA; and
On February 2, 1999, the City Council adopted Resolution No. 99-10 approving Addendum No.
7 to Environmental Impact Report No. 36 for additional revisions to the Project, in accordance
with the provisions of CEQA, and to modify the Project's mitigation measures and conditions
of approval; and
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On May 4, 1999, the City Council adopted Resolution No. 99-29 approving Addendum No. 8 to
Environmental Impact Report No. 36 for additional revisions to the Project, in accordance with
the provisions of CEQA; and
On July 20, 1999, the City Council adopted Resolution No. 99-55 approving Addendum No. 9
to Environmental Impact Report No. 36 for additional revisions to the Project, in accordance
with the provisions of CEQA; and
On May 16, 2000, the City Council adopted Resolution No. 2000-27 approving Addendum No.
10 to Environmental Impact Report No. 36 for additional revisions to the Project, in
accordance with the provisions of CEQA; and
On June 21, 2000, the City Council adopted Resolution No. 2000-38 certifying a Final
Supplemental Environmental Impact Report to Environmental Impact Report No. 36, adopting
a Mitigation Monitoring Program, adopting a Statement of Overriding Considerations, for
additional revisions to the Project, in accordance with the provisions of CEQA; and
On September 5, 2000, the City Council adopted Resolution No. 2000-58, approving a
Mitigated Negative Declaration and a Mitigation Monitoring Program, for additional revisions
to the Project, in accordance with the provisions of CEQA; and
On February 20, 2001, the City Council adopted Resolution No. 2001-14, approving Addendum
11 to Environmental Impact Report No. 36 for additional revisions to the Project, in
accordance with the provisions of CEQA; and
On February 20, 2001, the City Council adopted Resolution No. 2001-11, approving Addendum
12 to Environmental Impact Report No. 36 for additional revisions to the Project, in
accordance with the provisions of CEQA; and
On September 4, 2001, the City Council adopted Resolution No. 2001-72, approving
Addendum 13 to Environmental Impact Report No. 36 for additional revisions to the Project,
in accordance with the provisions of CEQA; and
On August 19, 2003, the City Council adopted Resolution No. 2003-70, approving Addendum
15 to Environmental Impact Report No. 36 for additional revisions to the Project, in
accordance with the provisions of CEQA; and
On November 5, 2003, the City Council adopted Resolution No. 2003-90, approving
Addendum 16 to Environmental Impact Report No. 36 for additional revisions to the Project,
in accordance with the provisions of CEQA; and
On April 20, 2004, the City Council adopted Resolution No. 2004-27, approving Addendum 17
to Environmental Impact Report No. 36 for additional revisions to the Project, in accordance
with the provisions of CEQA; and
On June 7, 2005, the City Council adopted Resolution No. 2005-62, certifying a Mitigated
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Negative Declaration for additional revisions to the Project, in accordance with the provisions
of CEQA; and
On October 4, 2005, the City Council adopted Resolution No. 2005-104, approving Addendum
No. 18 to Environmental Impact Report No. 36 for additional revisions to the Project, in
accordance with the provisions of CEQA; and
On December 20, 2005, the City Council adopted Resolution No. 2005-141, approving
Addendum No. 19 to Environmental Impact Report No. 36 for additional revisions to the
Project, in accordance with the provisions of CEQA; and
On April 18, 2006, the City Council adopted Resolution 2006-25, approving Addendum No. 20
to Environmental Impact Report No. 36 for additional revisions to the Project, in accordance
with the provisions of CEQA; and
On May 2, 2006, the City Council adopted Resolution No. 2006-31, approving Addendum No.
21 to Environmental Impact Report No. 36 for additional revisions to the Project, in
accordance with the provisions of CEQA; and
On July 18, 2006, the City Council adopted Resolution No. 2006-55, approving Addendum No.
22 to Environmental Impact Report No. 36 for additional revisions to the Project, in
accordance with the provisions of CEQA; and
On October 17, 2006, the City Council adopted Resolution No. 2006-82, approving Addendum
No. 23 to Environmental Impact Report No. 36 for additional revisions to the Project, in
accordance with the provisions of CEQA; and
On February 6, 2007, the City Council adopted Resolution No. 2007-11, approving Addendum
No. 24 to Environmental Impact Report No. 36 for additional revisions to the Project, in
accordance with the provisions of CEQA; and
On March 20, 2007, the City Council adopted Resolution No. 2007-30, approving Addendum
No. 26 to Environmental Impact Report No. 36 for additional revisions to the Project, in
accordance with the provisions of CEQA; and
On May 1, 2007, the City Council adopted Resolution No. 2007-50, approving Addendum No.
27 to Environmental Impact Report No. 36 for additional revisions to the Project, in
accordance with the provisions of CEQA; and
On October 16, 2007, the City Council adopted Resolution No. 2007-112, approving
Addendum No. 29 to Environmental Impact Report No. 36 for additional revisions to the
Project, in accordance with the provisions of CEQA; and
On December 4, 2007, the City Council adopted Resolution No. 2007-125, approving
Addendum No. 31 to Environmental Impact Report No. 36 for additional revisions to the
Project, in accordance with the provisions of CEQA; and
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On January 16, 2008, the City Council adopted Resolution No. 2008-03, approving Addendum
No. 32 to Environmental Impact Report No. 36 for additional revisions to the Project, in
accordance with the provisions of CEQA; and
On May 20, 2008, the City Council adopted Resolution No. 2008-41, approving Addendum No.
34 to Environmental Impact Report No. 36 for additional revisions to the Project, in
accordance with the provisions of CEQA; and,
On July 15, 2008, the City Council adopted Resolution No. 2008-65, approving Addendum No.
35 to Environmental Impact Report No. 36 for additional revisions to the Project, in
accordance with the provisions of CEQA; and
On September 16, 2008, the City Council adopted Resolution No. 2008-84, approving
Addendum No. 36 to Environmental Impact Report No. 36 for additional revisions to the
Project, in accordance with the provisions of CEQA; and
On October 21, 2008, the City Council adopted Resolution No. 2008-103, approving
Addendum No. 37 to Environmental Impact Report No. 36 for additional revisions to the
Project, in accordance with the provisions of CEQA; and
On January 21, 2009, the City Council adopted Resolution No. 2009-04, approving Addendum
No. 38 to Environmental Impact Report No. 36 for additional revisions to the Project, in
accordance with the provisions of CEQA; and
On September 15, 2009, the City Council adopted Resolution No. 2009-70, approving
Addendum No. 39 to Environmental Impact Report No. 36 for additional revisions to the
Project, in accordance with the provisions of CEQA; and
On March 16, 2010, the City Council adopted Resolution No. 2010-18, approving Addendum
No. 40 to Environmental Impact Report No. 36 for additional revisions to the Project, in
accordance with the provisions of CEQA; and
On September 21, 2010, the City Council adopted Resolution No. 2010-85, approving
Addendum No. 41 to Environmental Impact Report No. 36 for additional revisions to the
Project, in accordance with the provisions of CEQA; and
On March 15, 2011, the City Council adopted Resolution No. 2011-13, approving Addendum
No. 42 to Environmental Impact Report No. 36 for additional revisions to the Project, in
accordance with the provisions of CEQA; and,
On September 20, 2011, the City Council adopted Resolution No. 2011-74, approving
Addendum No. 43 to Environmental Impact Report No. 36 for additional revisions to the
Project, in accordance with the provisions of CEQA; and
On January 31, 2012, the City Council adopted Resolution No. 2012-03, adopting Addendum
No. 1 to Mitigated Negative Declaration for additional revisions to the Project, in accordance
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with the provisions of CEQA; and
On March 6, 2012, the City Council adopted Resolution No. 2012-18, approving Addendum
No. 44 to Environmental Impact Report No. 36 for additional revisions to the Project, in
accordance with the provisions of CEQA; and
On August 7, 2012, the City Council adopted Resolution No. 2012-55, approving Addendum
No. 45 to Environmental Impact Report No. 36 for additional revisions to the Project, in
accordance with the provisions of CEQA; and
On May 21, 2013, the City Council adopted Resolution No. 2013-28, approving Addendum No.
2 to the Mitigated Negative Declaration for additional revisions to the Project, in accordance
with the provisions of CEQA; and
On September 16, 2014, the City Council adopted Resolution No. 2014-60, approving
Addendum No. 46 to Environmental Impact Report No. 36 for additional revisions to the
Project, in accordance with the provisions of CEQA.
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