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1 BRIGIT S. BARNES & ASSOCL\TES, INC.
BRIGIT S. BARNES, ESQ. CSB #122673
2
ANNIE R. EMBREE, ESQ., OF COUNSEL CSB #208591
3
3262 Penryn Road, Suite 200
Loomis, CA 95650
4 Telephone: (916)660-9555
Facsimile: (916) 660-9554 '° COUNTY
5
Attomeys for Petitioners and Plaintiffs
6
STAND UP CALIFORNIA!; PATTY JOHNSON;
7 And JOE TEIXEIRA
8
SUPERIOR COURT OF THE STATE OF CALIFORNL\
9
COUNTY OF SACRAMENTO
10
11
12
STAND UP CALIFORNL\!; PATTY CaseNo. 34-2016-80002493
JOHNSON; and JOE TEIXEIRA,
13
DECLARATION OF ASHLEE N. TITUS IN
Petitioners and Plaintiffs, SUPPORT OF EX PARTE APPLICATION
14
FOR ORDER TO SHOW CAUSE RE
PRELIMINARY INJUNCTION AND
15 TEMPORARY RESTRAINING ORDER
CITY OF ELK GROVE,
16
Respondent and Defendant.
Date: December 22,2016
17
ELK GROVE TOWN CENTER, LP; Time: 9:00 am
18 HOWARD HUGHES CORPORATION;
and DOES 1-20, (Ex parte calendar) Dept. 24
19
Real Parties in Interest and Verified Petition Filed: November 23,2016
•20 Trial Date: None
Defendants.
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22
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24 I, ASHLEE N. TITUS, declare as follows:
25 1. I am a partner with the law firm of Bell, McAndrews and Hiltachk, LLP, counsel
26 for Knighted Ventures, LLC. I am a member of the Califomia State Bar and am admitted to
27 practice before this Califomia Court. I am familiar with all documents attached to this
28 declaration, tme and correct copies of which are attached hereto. I make this declaration of my
TITUS DECLARATION ISO EX PARTE APP FOR OSC-TRO -1
1 personal knowledge of the facts stated herein, and could and would competently testify to them if
2 called to do so.
3 2. On October 22, 2014, the City Council of the City of Elk Grove approved
4 Ordinance No. 29-2014 to adopt a development agreement with Elk Grove Town Center, LP, to
5 develop "The Outlet Collection at Elk Grove" located in the Lent Ranch Special Planning Area.
6 The October 22, 2014 action by the City Council modified the prior plan for the development
7 fi-om a traditional mall to an outlet concept. Exhibit A to the Development Agreement adopted
8 by Ordinance No. 29-2014 set forth the "Legal Description of the Property." Ordinance No. 29-
9 2014 is attached to this Declaration as Exhibit 1.
10 3. On October 26, 2016, the City Council of the City of Elk Grove approved
11 Ordinance No. 23-2016 to amend the Development Agreement approved by Ordinance No. 29-
12 2014, and more particularly, to amend Exhibit A, the "Legal Description of the Property." The
13 City Clerk attested Ordinance No. 23-2016 on the same date. The amendment removed the
14 Phase 2 portionfi-omthe Development Agreement. Ordinance No. 23-2016 is attached to this
15 Declaration as Exiiibit 2.
16 4. The purpose of the October 26, 2016 amendment to the Development Agreement
17 was to allow Elk Grove Town Center, LP to sell that portion of the property to the Wilton
18 Rancheria in order to develop a "hospitality and entertainment facility," which would include a
19 hotel, a convention center, restaxirants and bars, and a Las Vegas-style casino. The City Council
20 of the City of Elk Grove passed Resolution No. 2016-183 approving a Memorandum of
21 Understanding with the Wilton Rancheria on September 28, 2016, "for mitigation fimding
22 related to a proposed entertainment and gaming facility." Resolution No. 2016-183 is attached to
23 this Declaration as Exhibit 3.
24 5. When Ordinance No. 23-2016 was passed by the City Council, Knighted
25 Ventures, LLC providedfimdingto allow a referendum petition to be printed and circulated
26 among the registered voters of the City of Elk Grove, to demand that the City Council reconsider
27 amending the Development Agreement to remove the Phase 2 jwrtion ofthe propertyfi-omthe
28 Mall proper, as a necessary step toward the Phase 2 property being acquired by Wilton Rancheria
TITUS DECLARATION ISO EX PARTE APP FOR OSC-TRO - 2
1 for development as a casino resort. A copy of the referendum petition is attached to this
2 Declaration as Exhibit 4.
3 6. In accordance with the Elections Code provisions applicable to municipal
4 referendum petitions, a referendum petition must be presented to the city clerk within 30 days of
5 the date the adopted ordinances is attested by the city clerk, containing signaturesfi-omnot less
6 than 10 percent of the voters of the city according to the county elections official's last official
7 report of registration to the Secretary of State. When a referendum petition containing a
8 sufficient number of signatures is filed by the deadline, the effective date of the ordinance is
9 suspended pending examination of the signatures and action by the city council. (Elec. Code §
10 9237.)
11 7. The deadline to file the referendum petition of Ordinance No. 23-2016 was
12 November 25, 2016.
13 8. The last official report ofregistration by Sacramento Coimty to the Secretary of
14 State prior to the November 25, 2016 referendum deadline was made on October 27, 2016, and
15 showed that Elk Grove had 88,950 registered voters (see page 155). The October 27, 2016
16 Report of Registration posted on the Secretary of State's website
17 [http://elections.cdn.sos.ca.gov/ror/ror-pages/15day-gen-16/politicalsub.pdfl is attached to this
18 Declaration as Exhibit 5.
19 9. In order to qualify, the referendum petition needed 8,895 signatures from
20 confirmed-registered voters within the City, or 10% of the City's registered voters.
21 10. OnNovember 21, 2016, a petition to referend Ordinance No. 23-2016 was filed
22 with the Elk Grove City Clerk containing 14,800 signatures. A copy of the transmittal letter
23 endorsed by the City Clerk is attached to this Declaration as Exhibit 6.
24 11. Upon acceptance of a referendum petition, the City Clerk has 30 days, excluding
25 weekends and holidays, to verify the number of valid signatures presented on the petition, and to
26 ascertain whether the petition contains a sufficient number to qualify. (Elec. Code §§ 9240,
27 9114,9115.)
28
TITUS DECLARATION ISO EX PARTE APP FOR OSC-TRO - 3
1 12. The deadline for verification of the signatures on the referendum petition of
2 Ordinance No. 23-2016 is January 6,2017.
3 13. If the petition is determined to have contained at least 8,895 signaturesfi-omElk
4 Grove registered voters, the City Clerk shall notify the proponent of the petition, and shall certify
5 the results of the examination of the petition to the City Council at the next regular meeting of
6 the Council. (Elec. Code §§ 9240, 9114, 9115.)
7 14. Based on a review of City regulations, the Elk Grove City Council generally
8 meets the second and fourth Wednesdays of each Month. The next City Council meeting after
9 the deadline for examination of the petition signatures is January 11,2017.
10 15. At the meeting when the City Clerk certifies the results of the examination of the
11 petition, the City Council shall have two options: entirely repeal the ordinance against which the
12 petition is.filed; or submit the ordinance to the voters at the next regular municipal election or a
13 special election occurring not less than 88 days after the order. (Elec. Code § 9241.)
14 16. Assuming the referendum petition is certified at the January 11, 2017 City
15 Coimcil meeting, the earliest an election could be held is April 11, 2017 (the Tuesday
16 immediately following the 88th day after January 11, 2017).
17 17. The next regular municipal election for the City of Elk Grove following the
18 January 11, 2017 City Covmcil meeting is November 6,2018. The City of Elk Grove's regular
19 municipal elections are held on the first Tuesday after the first Monday in November of even
20 numbered years. (Elk Grove Municipal Code § 1.02.010.)
21 I declare, under penalty of perjury under the laws of the State of Califomia, that the
22 foregoing is tme and correct.
23 Executed on December , 2016, at Sacramento, Califomia.
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26 ASHLEE
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TITUS DECLARATION ISO EX PARTE APP FOR OSC-TRO - 4
Exiiibit 1
ORDINANCE NO. 29-2014
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF ELK GROVE
ADOPTING A DEVELOPMENT AGREEMENT WITH ELK GROVE TOWN CENTER. LP
WHEREAS, on June 27, 2001, the City Council certified the Environmental
Impact Report (EIR. State Clearinghouse No. 1997122002) for the Lent Ranch
Marketplace Project and adopted the Lent Ranch Special Planning Area, which
provided for the development of a regional mall and surrounding retail, office, and
entertainment development; and
WHEREAS, the Planning Division of the City of Elk Grove received an
application on April 11, 2014 from Elk Grove Town Center, LP (the "Applicant")
requesting an amendment to the approved District Development Plan for the Regional
Mall site (District A) ofthe Lent Ranch Special Planning Area (the "Project"); and
WHEREAS, the proposed Project is located on real property in the incorporated
portions ofthe City of Elk Grove more particularly described as APN 134-1010-001; and
WHEREAS, the City detennined that the Project is subject to the California
Environmental Quality Act; and
WHEREAS, the Project is located within the Lent Ranch Special Planning Area
for which an EIR (State Clearinghouse No. 1997122002) was prepared and certified
July 2001; and
WHEREAS, California Environmental Quality Act (CEQA) Guidelines section
15162 Identifies that when an EIR has been certified for a project, no subsequent EIR
shall be prepared for that project unless then lead agency (the City) determines, on the
basis of substantial evidence in light of the whole record, one or more substantial
change in the project, circumstances, or infonnation (as defined in the section) have
occurred; and
WHEREAS, the Planning Commission held a duly noticed public hearing on
September 18, 2014 as required by law to consider all of the information presented by
staff, information presented by the Applicant, and public testimony presented in writing
and at the meeting; and
WHEREAS, the City Council held a duly noticed public hearing on October 8,
2014 as required by law to consider all of the information presented by staff, infonmation
presented by the Applicant, and public testimony presented in writing and at the
meeting.
NOW, THEREFORE, the City Council of the City of Elk Grove does hereby
ordain as follows:
Section 1: Purpose
The purpose of this Ordinance is to adopt the Development Agreement with Elk Grove
Town Center, LP for the Project known as The Outlet Collection at Elk Grove.
Section 2: Findings
This Ordinance is adopted based upon the following findings:
California Environmental Quality Act (CEQA)
Finding: No further environmental review is required under the Califomia Environmental
Quality Act pursuant to State CEQA Guidelines section 15162.
Evidence: The City has reviewed the Project and analyzed it based upon the provisions
in section 15162 ofthe State CEQA Guidelines. As described in the Project description,
the Project will modify the format of the Regional Mall from a "traditional" mall to an
"outlet" concept, but the configuration of the Project will be within the development
parameters analyzed under the 2001 EIR for the Lent Ranch SPA. Specifically, the EIR
identified a total leasable area of 1,300,000 square feet for District A and the Project
proposes a first phase of approximately 775,000 total square feet with 689,000 being
gross leasable area, or approximately 53-percent of the total allowed gross leasable
area. Phase 2 has not been proposed for development as part of the project
description, but will be required to fall within the approved uses and total development
potential of the SPA that were analyzed in the 2001 EIR. The characteristics of the
Phase 2 area are undefined and subject to speculation and, pursuant to CEQA
Guidelines section 15145, cannot be further analyzed at this time. The proposed
wireless telecommunication ^cilities (through the conditional use permit) will be within
the core development area and are design consistent with the maximum height and
density/intensity of development othenwise allowed in the District. Therefore, there are
no substantial changes in the Project from that analyzed in the 2001 EIR and no new
significant environmental effects, or substantial increase in the severity of previously
Identified significant effects. No new information of substantial importance has been
identified.
Further, since no changes to the EIR are necessary to support the Project, the City is
not required to prepare an Addendum to the EIR as required by State CEQA Guidelines
Section 15164. Therefore, the prior EIR is sufficient to support the Project and no
further environmental review is required.
Development Agreemerit
Finding #1: The development agreement is consistent with the General Plan objectives,
policies, land uses, and implementation programs and any other applicable specific
plans.
Evidence: The proposed Development Agreement is consistent with the General Plan
as the General Plan designates the subject property for commercial development and
the Development Agreement provides for the development up to the 1,300,000 square
feet allocated for District A, consistent with the Special Planning Area. The site is not
subject to a specific plan.
Finding #2: The development agreement is in conformance with the public convenience
and general welfare of persons residing in the immediate area and will not be
detrimental or injurious to property or persons in the general neighborhood or to the
general welfare of the residents of the City as a whole.
Evidence: The Project is in conformity with public convenience, general welfare and
good land use practices because it will develop a Regional Mall along the Highway 99
corridor that wiil accommodate the growing need for such services in the City of Elk
Grove and surrounding region. The Project will create a commercial, retail, and
entertainment development that is of high quality and fully integrated on one site rather
than less desirable piecemeal land uses spread out over several other locations. The
Project will provide an expanded economic base for the City of Elk Grove through the
generation of significant increased tax revenue. The Development Agreement is
necessary in order to obtain the major investment necessary to develop the Project.
Absent approval of the Development Agreement, the City would not obtain the benefits
of the Project to the community. The Development Agreement will establish land use
regulations for a reasonable period to allow project build out in accordance with the
approved entitlements for development, and to ensure a cohesive development. The
Project will provide the variety of land uses noted above at one attractively designed,
well-planned site, located adjacent to major highways and a freeway interchange for
maximum public convenience. The Project will also provide these services to the
residents of existing and planned residential developments, thereby reducing the
number of vehicle miles traveled to obtain these same services at greater distances,
and improving air quality. The Project will also create indirect economic benefits and
serve as a catalyst for additional economic activity as a result of job creation and the
spending of Project wages in the City. Thus, in accordance with good land use
practices, the Project will promote a better balance of employment, services and
housing, and improve the mix of uses in the community.
Finding #3: The development agreement will promote the orderly development of
property or the preservation of property values.
Evidence: the Project site is designated in the General Plan for commercial
development. Approval of the Project will result in the development of these lands and
the provision of urban levels of public infrastructure and services to areas within the
City. Thus, the uses proposed by the Project are consistent with those envisioned for
the area in the General Plan. The Project will contribute to a balance of land uses within
the City by providing a diversity of necessary services that respond to the needs of the
surrounding community and the region. The Project will be compatible with and
preserve (or even Increase) the property values of the predominantly residential
development proposed or othenn/ise approved for surrounding areas, by providing
necessary and desirable services nearby. The Project, as designed, will be a cohesive,
planned multi-use development, and will provide a visually pleasing, safe and attractive
gathering place that will encourage community identity. Necessary infrastructure,
including sewer, water, and roadways, to serve the Project have been constructed. As a
result, the Project will not adversely affect the orderly development of property, and
property values will be preserved or increased.
Section 3: Action
The City Council hereby approves and adopts the Development Agreement between
the City of Elk Grove and Elk Grove Town Center, LP, attached as Exhibit A and
incorporated herein by this reference. The City Manager is hereby authorized and
directed to execute the Development Agreement on behalf of the City.
Section 4: No Mandatory Duty of Care.
This ordinance is not intended to and shall not be construed or given effect in a manner
that imposes upon the City or any officer or employee thereof a mandatory duty of care
towards persons and property within or without the City, so as to provide a basis of civil
liability for damages, except as othenvise imposed by law.
Section 5: Severabilitv.
if any provision of this ordinance or the application thereof to any person or
circumstances is held invalid, such invalidity shall not affect other provisions or
applications of the ordinance which can be given effect without the invalid provision or
application, and to this end the provisions of this ordinance are severable. This City
Council hereby declares that it would have adopted this ordinance inrespective of the
invalidity of any particular portion thereof and Intends that the invalid portions should be
severed and the balance ofthe ordinance be enforced.
Section 6: Savings Clause
The provisions of this ordinance shall not affect or impair an act done or right vested or
approved or any proceeding, suit or prosecution had or commenced in any cause
before such repeal shall take affect; but every such act done, or right vested or accrued,
or proceeding, suit or prosecution shall remain in full force and affect to all intents and
purposes as if such ordinance or part thereof so repealed had remained in force. No
offense committed and no liability, penalty or forfeiture, either civilly or criminally
incurred prior to the time when any such ordinance or part thereof shall be repealed or
altered by said Code shall be discharged or affected by such repeal or alteration; but
prosecutions and suits for such offenses, liabilities, penalties or forfeitures shall be
instituted and proceeded with In all respects as if such prior ordinance or part thereof
had not been repealed or altered.
Section 7: Effective Date and Publication
This Ordinance shall take effect thirty (30) days after its adoption. In lieu of publication
of the full text ofthe ordinance within fifteen (15) days after its passage, a summary of
the ordinance may be published at least five (5) days prior to and fifteen (15) days after
adoption by the City Council and a certified copy shall be posted in the office of the City
Clerk, pursuant to GC 36933(c)(1).
ORDINANCE: 29-2014
INTRODUCED: October 8, 2014
ADOPTED: October 22, 2014
EFFECTIVE: November 21, 2014
GARy^3Avrs,^AYOR of the
CITY OF ELK GROVE
ATTEST: APPROVED AS TO FORM:
LINDGREN>^pffY CLERK ONATHAN PTFTOBBS,
CITY ATTORNEY
EXHIBIT A
OFFIQAL CITY BUSINESS
No recording fee
Govemment Code Section 6103
RECORDING REQUESTED BY:
City of Elk Grove
8401 Laguna Palms Way
Elk Grove, CA 95758
Attn: City Clerk
WHEN RECORDED MAIL TO:
City of Elk Grove
8401 Laguna Palms Way
Elk Grove, CA 95758
Attn: City Qerk
(SPACE ABOVE THIS LINE RESERVED FOR RECORDER'S USE)
DEVELOPMENT AGREEMENT
BETWEEN THE
CITY OF ELK GROVE,
AND
ELK GROVE TOWN CENTER, LP
DEVELOPMENT AGREEMENT
This Development Agreement (this Agreement) is entered into between the City of Elk
Grove ("City"), and Elk Grove Town Center, LP, a Delaware limited partnership
("Developer"). For the purposes of this Agreement, Developer and City are referred to
individually as "Party" and collectively as the "Parties."
RECITALS
This Agreement is predicated upon the following findings:
A. On September 5,2001 by Ordinance 13-2001, the Elk Grove City Council
adopted that certain Development Agreement among the M&H Realty
Partners III L.P, a Califomia limited partnership ("M&H Realty"), Robert
H. and Lisa Lent, the Brian Wayne Lent Trust, and Susan Rasmussen (the
"Lents"), the Marilyn J. Wackman Revocable Trust; and the City of Elk
Grove, for the developrnent of the 295-acre Lent Ranch Marketplace
Special Planning Area (the "2001 Development Agreement"), and
B. Concurrently with the approval of the 2001 Development Agreement, the
City adopted the Lent Ranch Marketplacie Special Plaiming Area ("SPA"),
along with amendments to the City's General Plan and Zoning Code, and
certified an Environmental Impact Report pursuant to the requirements
of the California Environmental Quality Act ("CEQA"); and
C. Developer is that party identified as the "Mall Developer" under the 2001
Development Agreement; and
D. Pursuant to the 2001 Development Agreement and the SPA, on July 11,
2007 the Elk Grove City Council approved a Development Plan Review
(EG-05-878) for the Elk Grove Promenade development, which permitted
the construction of an initial 1.1 million squeu^ foot open-air regional mall
in SPA District A; and
E. Developer has completed construction of major backbone infrastructure
and offsite improvements to serve the SPA area; and
F. WhUe substantial construction of the Elk Grove Promenade project was
undertaken, the project was stopped in December 2008 due to the
economic recession and the banikruptcy reorganization of General
Growth Properties, Inc.; and
G. Developer has submitted a plan for the substantia reuse of the existing
building construction and improvements in SPA District A, through the
development of commercial and retail uses; and
H. The approved Development Plan Review described in the Project
Approvals will result in development of the Property and significant
benefits to the City through tax revenue, employment opportunities and
the utilization of a partially developed but vacant property at a critical
gateway location in the City; and
I. In exchange for the benefits to the City, Developer desires to receive the
assurance that it may proceed with the Project in accordzmce with the
Existing Land Use Regulations, subject to the terms and conditions
contained in this Agreement and to secure the benefits afforded
Developer by Govemntent Code §65864.
NOW, THEREFORE, the Parties agree as follows:
TERMS AND CONDITIONS
1. Definitions
1.1. "Adopting Ordinance" is the ordinance of the City Council approving this
Agreement, as adopted on October 22,2014 by City Ordinance No. 29-
2014.
1.2. "City" means the City of Elk Grove, and depending on the context, may
include its agents, officers, employees, representatives and elected and
appointed officials.
1.3. "City Coimcil" shall mean the City Council of the City of Elk Grove and
its designees.
1.4. "Developer" means Elk Grove Town Center LP or any Successor.
1.5. "Development Agreement Law" means Govemment Code Section 65864
et seq.
1.6. "Effective Date" meai\s that day on which tiie Adopting Ordinance shall
be effective 30 days after its adoption by the City Council, unless the
Adopting Ordinance becomes subject to a qualified referendiun, in which
case the Effective Date shall be the day after the referendum election, if
the Adopting Ordinance is approved by a majority of the voters.
Litigation filed to challenge the Adopting Ordinance or this Agreement
shall not affect the Effective Date, al»ent a court order or judgment
overturning or setting aside the Adopting Ordiiumce, or staying the
Effective Date, or remanding the Adopting Ordinance to the City.
1.7. "EIR" means that certain Draft and Final Environmental Impact Report
for the Project, State Qearinghouse No, 1997122002, as certified by the
City Council in June 2001, and including all Addenda thereto
subsequently approved by the City.
1.8. "Existing Land Use Regulations" means the City of Elk Grove General
Plan, any applicable specific plans, and the Elk Grove zoning ordinance
existing as of September 5,2001, except as modified by the 2001
Approvals.
1.9. "Fee" shall include charges, expenses, costs, monetary exactions and any
other monetary obligation imposed on Developer by the City, and shall
not be Umited to fees paid pursuant to this Agreement, but shall not
include fees collected by City on behalf of and for the benefit of another
public agency. (The term "fee" need not be capitalized in this
Agreement.)
1.10. "Improvement" means any on-site or off-site conveyance, grant or
dedication of property or propertyrights,non-monetcuy exaction,
construction and/or installation of a work of public improvement, street,
facility, utility or park or recreational amenity which is to be transferred
td the City or any otiier contribution of property (other than fees),
imposed on Developer by the City, as applicable. (The term
"improvement" need not be capitalized in this Agreement.)
1.11. "Law" means the case law, ordinances, statutes, mles, regulations,
standards, policies, programs, or any order, decree or directive of any
comt or any local, regional, state or federal govemment agency, including
the City, urUess the context suggests a different meaning.
1.12. "Mitigation Measures" mean the mitigation measures included in the EIR
or its mitigation monitoring plan as modified and/or adopted by the City
CouncU.
1.13. "New Construction" shall mean any building, structure or improvement
that is not part of the original 572,368 sqxiare feet of shell biiildings
permitied, and that has not already been partially constructed as of the
Effective Date.
1.14. "Project" is defined by reference to the Project Approvals, as
supplemented by the provisions of this Agreement.
1.15. "Project Approvals" shall mean the following land use approvals, aU
approved on or before October 22, 2014 which, annong other things,
govern the permitted uses, density and intensity of land uses, the timing
and sequencing of development, and the maximum height and size of
proposed buildings with respect to the Property:
1.15.1. This Agreement, as adopted by the Adopting Ordinance
1.15.2. Regional Mall District Development Plan & Review, File.
14-012.
1.15.3. Amendments to the Lent Ranch Special Planrting Area, as
adopted by the City Coimcil by Ordinance 28-2014.
1.16. "Property" is that certain real property consisting of approximately 100.34
acres in the City of Elk Grove, Assessor's Parcel Number 134-1010-001,
and more particularly described in Exhibit A hereto. The term "Property"
may include any part of the Property, depending on the context.
1.17. "SPA" shall mean the Lent Ranch Marketplace Special Plaiuiing Area, as
approved by the City on September 5,2001 and cunended by fhe Qty, per
Ordinance 28-2014.
1.18. "SPA District A" shall mean the Property, as defined and regulated under
tiie SPA
1.19. "Successor" is any assignee pursuant to Section 10 (i.e., any recognized
successor in interest under this Agreement), and any subsequent
assignees.
1.20. "2001 Approvals" shall mean those approvals and entitiements approved
by the City in June 2001, as follows:
1.20.1. General Plem Amendments as adopted by Resolution No.
2001-43 for the Lent Ranch Marketplace development
1.20.2. Zoning Code Text Amendment to Establish the SPA, as
adopted by Ordinance No. 10-2001 and the remaining
provisions of the Zoning Code in effect as of September 5,
2001
1.20.3. Tentative Parcel Map for the Lent Ranch Marketplace, as
adopted by Resolution No, 2001-43, and all final
subdivision maps affecting the Property
1.20.4. The EIR, as defined by Section 1.7
1.20.5. The 2001 Development Agreement
1.21. . "2001 Development Agreement" shall mean that certain Development
Agreement adopted by Ordinance 13-2001 on September 5,2001,
1.22. "Vested right" is a right to proceed with the development of the Project in
accordance with: (1) the terins and scope of the Project Approvals as
defined intiiisAgreement, which Project Approvals may not he
amended, modified or changed by the City except as provided by this
Agreement, and (2) the Existing Land Use Regulations, and (3) the rights
vested by the 2001 Development Agreement as set forth in Exhibit B of
this Agreement (The term "vested right" need not be capitalized in this
Agreement.)
2, Representations, Warranties and Acknowledgments
2.1. Titie to Property, Developer represents and warrants that as of the
Effective Date, Developer holds a legal or equitable interest in and to the
Property.
2.2. Authority. The parties represent and warrant that the persons signing
this Agreement are duly authorized to enter into and execute this
Agreement on behalf of their respective principals,
2.3. Agreement as Binding Covenant. The parties intend and determine that
the provisions of this Agreement shall constitute covenants which shall
run with said Property, and the burdens and benefits hereof shall bind
and inure to aU successors in interest to the parties hereto. All of the
provisions of this Agreement shall be enforceable during the Term as
equitable servitudes and constitute covenants running with the land
pursuant to applicable law, including, but not limited to Section 1468 of
the Civil Code of the State of Califomia, Each covenant to do or refrain
from doing some act on the Property hereunder, or with respect to any
City owned property or property interest, (i) is for the benefit of such
properties and is a burden upon such property, (ii)ranswith such
properties, and (iii) is binding upon each party and each successive
owner during ite ownership of such properties or any portion thereof,
and each person or entity having any interest therein derived in any
marmer through any owner of such properties, or any portion thereof,
and shall benefit each party and ite property hereunder, and each other
person or entity succeeding to an interest in such properties,
3. Term and Termination
3.1. Term. The term of this Agreement shall commence on the Effective Date
and shall last four (4) years following the Effective Date, unless this
Agreement is (1) earlier tenninated as set forth in this Agreement or (2)
extended in writing by mutual agreement of all of the parties. In the event
that development of 400,000 square feet of gross building area pursuant
to the Project Approvals is completed (as documented by the issuance of
a final certificate of occupancy for 400,000 square feet of gross building
area), the Agreetnent shall automatically be extended for an additional
period of ten (10) years without the need for further action or approval by
the parties. Otherwise, this Agreement shall automatically expire on the
fourth anniversary of the Effective Date,
3.2. Termination by Mutual Consent. This Agreement may be terminated in
whole or in part by the mutual written consent of all of the parties. Any
fees paid or improvemente dedicated to the City prior to the effective
date of termination shall be retained by the City, as applicable.
Notwithstanding the above, nothing in this section shall be interpreted to
result in the forfeiture of impact fees or permit fees (or eligibility for fee
,^ credite or refunds) previously paid by Developer for building square
footage that has either (1) not been constructed as of the date of
termination of this Agreement by mutual consent, or (2) previously
constructed by Developer and demolished pursuant to the Project
Approvals.
3.3. Effect of Termination. Termination of this Agreement, whether by
mutuad written consent as provided in Section 3.2, default as provided in
Section 8, or by expiration of ite own accord, shall not: (1) affect any pre-
existing liability under this Agreement owed by one party to the other,
which remains unsatisfied as of the effective date of termination; (2) affect
those provisions of this Agreement which provide that they shall survive
the termination of this Agreement; (3) be construed to tenninate or
modify an applicable covenant, condition, servitude or restriction that
runs with the land and binds Successors; (4) affect the validity of any
structure on the Property or improvement which is completed as of the
date of termination and is in compliance with all necessauy permite; or (5)
prevent Developer from completing any structure on the Property or
improvement under construction at the tinie of termination, provided
that any such structure or improvement is completed in accordance with
etll necessary permite.
3.4, Effect of Termination on Vested Righte. Upon termination of this
Agreement, whether by mutual written consent as provided in Section 3.2
or default as provided in Section 8 or by expiration of ite own accord, the
Project Approvals and any amendments thereto shall not automatically
be repealed or rescinded, but Developer shall no longer have a vested
• right to them except to the extent that Developer has independently
acquired a common law vestedrightto them.
4, F*roject Approvals and Vested Rights
4.1. Project Approvals. Upon the Effective Date, and except as otherwise
provided in this Agreement, Developer shall acquire and/or maintain a
vested right in the Project Approvals, the 2001 Approvals and the
Existing Land Use Regulations for the term of this Agreement. Developer
shall acquire a vested right to any amendmente to the Project Approvals,
the 2001 Approvals or Existing Land Use Regulations affecting the
Property as of the date of approval of such amendmente by the City
Council; provided, however, that Developer shall not acquire a vested
right to any such amendment approved after the expiration of the term of
this Agreement.
4.2. Development Standards, The density and intensity of use, tiie rate, timing
and sequencing of development, the maximum height and size of
proposed buildings, and provisions for reservation and dedication of
land shaU be as set forth in the 2001 Approvals, except as modified by the
Project Approvals,
4.3, Phasing and Timing of Etevelopment The parties recognize that the
Project is the initial phase of development within SPA District A, and
further development within SPA District A may occur in one or more
additional phases. The parties acknowledge that, as of the Effective Date,
Developer has not proposed a plan for the development of future phases
within the SPA, The City retains discretion to review and approve
subsequent applications for future phases of development within SPA
District A, subject to the vestedrighteprovided by this Agreement.
With the exception of the Project, the parties acknowledge that Developer
caimot at thistimepredict with certainty when or the rate at which
phases of the Property would be developed. Such decisions depend upon
numerous factors which are not all within the control of Developer, such
as market conditions and demand, interest rates, competition and other
factors. Because the Califomia Supreme Court held in Pardee Construction
Co. V. City of Camarillo, 37 Cal,3d 465 (1984), that the failure oftiieparties
therein to provide for the timing of development resulted in a later
adopted initiative restricting the timing of development controlling the
parties' agreement, it is the intent of City and Developer to hereby
acknowledge and provide for therightof Developer to develop the
Property in such order and at such rate and times as Developer deems
appropriate within the exercise of ite sole and subjective business
judgment, subject to the terms> requiremente and conditions of the Project
Approvals and this Agreement, City acknowledges that such a right is
consistent with the intent, purpose and understanding of the parties to
this Agreement, and that without such a right. Developer's development
of the Property would be subject to the uncertainties sought to be avoided
by the Development Agreement Statute and this Agreement. The
Developer shall use ite best efforts, in accordance with its business
judgment and taking into consideration market conditions and other
economic factors influencing Developer's business decision, to commence
or to continue development, and to develop the Property in a regular,
progressive and timely maimer in accordance with the provisions and
conditions of this Agreement and with the Project Approvals.
Notwithstanding the foregoing, it is the Developer's intent, without
limiting ite legalrighte,to develop not less than 400,000 square feet of
gross building area eligible for a final certificate of occupancy prior to the
fourth anniversary of the Effective Date.
4.4, Initiatives. Referenda and Growth Control, Subject to the vesting
provisions of the Development Agreement Law, Developer and City
intend that, except as otherwise provided herein, this Agreement shaU
vest the Project Approvals against subsequent City resolutions.
ordinances, growth control measures and initiatives or referenda, other
than a referendum that specifically overturns City's approval of the
Development Agreement, that would directiy or indirectiy limit the rate,
timing or sequencing of development, or would prevent or conflict with
the land use designations, permitted or conditionally permitted uses on
the Property, design requiremente, density and intensity of uses as set
forth in the Project Approvals, and that any such resolution, ordinance,
initiative or referendum shaU not apply to the development of the
Property, Notwithstanding any other provision of this Agreement,
Developers shall, to the extent allowed by the Development Agreement
Law, be subject to any growth limitation ordinance, resolution, rule,
regulation or policy which is adopted and applied on a uniform, city-
wide basis and directiy concems an imminent public health or safety
issue. In such case. City shall apply such ordinance, resolution, rale,
regulation or policy uniformly, equitably and proportionately to
Developer and the Property and to all other public or private owners and
properties directiy affected thereby,
4.5. Reserved Powers. Subject to the vested righte granted by this Agreement,
the City reserves the right to;
4.5.1. Grant or deny applications for land use approvals for the Project
and the Property, provided such grant or denial is consistent with
this Agreement;
4.5.2. Approve, disapprove or revise subdivision maps, parcel maps or
lot line adjustmente for the Project and the Property, provided
such grant or denial is consistent with this Agreement;
4.5.3. Adopt, increase and impose regular taxes applicable on a City-
wide basis;
4.5.4. Adopt increase and impose utility charges applicable on a City-
wide basis;
4.5.5. Adopt, increase and impose permit processing fees, inspection
fees and plan check fees applicable on a City-wide basis;
4.5.6. Adopt and apply regulations mandated by Law or necessary to
protect the public health and safety. To the extent that such
regulations affect the Developer, the City shall apply such
ordiiumce, resolution, rule, regulation or policy uniformly,
equitably and proportionately to Developer and the Property and
all other public or private owners and properties affected thereby.
For purposes of this Agreement any Law with respect to flood
protection shall be deemed necessary to protect the public health
and safety;
4.5.7, Adopt, increase or decreeise the amount of, fees, charges,
assessmente or special taxes, except to the extent restricted by this
Development Agreement; provided, however, that Developer
may challenge the imposition of any newly imposed fee solely on
the grounds that such fee was not properly established in
accordance with applicable law;
4.5.8. Adopt and apply regulations relating to the temporary use of
land, the control of traffic, the regulation of sewers, water, and
similar subjecte, and the abatement of public nuisances;
4.5.9. Adopt and apply City engineering design standards and
constraction specifications;
4.5.10, Adopt and apply the various building standards codes, as further
provided in Section 4,6;
4.5.11. Adopt Laws that are not in conflict with, or that are less restrictive
than, the terms and conditions for development of the Project
established by this Agreement; and
4.5.12, Exercise ite power of eminent domain with respect to any part of
the Property,
4.6, Building Codes Applicable, New constraction undertaken pursuant to
the Project Approvals shall be constiucted in accordance with the
California Building Standards Codes, Titie 24 of the Califomia Code of
Regulations, as adopted and amended by the City, as the same shall be in
effect as of the time of approval of the permit in question. If no permit is
required for a given infrastracture improvement or other improvement,
such improvement will be constracted in. accordance with said Codes in
effect in the City as of the commencement of constraction of such
improvement.
4.7, Meet and Confer, If Developer believes that the City is taking action to
impair a vestedrightconferred by this Agreement, Developer shall
provide written notice to City describing the basis for Developer's
position. The parties shall meet and confer within thirty (30) days
thereafter in an attempt to arrive at a mutually acceptable solution
4.8, Court Order or judgment. Notwithstanding an)rthing in this Agreement
to the contiary, a vestedrightacquired by Developer with respect to any
Project Approval shall be deemed a nullity without compensation to
Developer in the event that such Project Approval is overturned or set
aside by a court of law. An invalidated Project Approval shall regcun its
vestedrightstatus in the event that the court's decision is reversed on
appeal.
10
4.9, Effect on 2001 Development Agreement Except as provided in Exhibit B,
Developer shall have no further righte or obligations under the 2001
Development Agreement which shall be superseded with respect to the
Property and Developer by this Agreement. Nothing in this Agreement
shall effect or modify the righte or obligations of the 2001 Development
Agreement as to those parties (or any of them) identified as "Developers"
therein.
5. Fees, Improvemente and Mitigation Measures
5.1. Waiver of Fee Vesting, Notwithstanding anything in this Agreement to
the contrary, but subject to Section 5.3 and the 2001 Approvals (including
Exhibit E to the 2001 Development Agreement), Developer hereby waives
the vesting of all City fees. Accordingly, the amount of all fees not
addressed under Section 5,3 of this Agreement and the 2001 Approvals
shall be determined as of the time they become due and payable after
imposition by the City, Nothing herein shall preclude Developer from
challenging the establishment of any new fee (as opposed to an increase
in an existing fee) solely on the grounds that such fee was not properly
established in accordance with applicable law or this Agreement
5.2. Processing Fees, Developer shall pay all City coste in connection with
processing and preparing any Project pennit, certificate, map, approval,
consent or agreement, including this Agreement All such coste incurred
prior to the Effective Date shall be paid in full, prior to the Effective Date.
Thereafter, all such coste incurred must be paid, in full, prior to approval
of each phase of the Project as determined by the City.
5.3, Developer's Satisfaction of Prior Obligations under the 2001 Development
Agreement It is acknowledged by the parties that many of the
obligations of Developer under the 2001 Development Agreement for
payment of fees, dedication of land
Preview
1 BRIGIT S. BARNES & ASSOCL\TES, INC. BRIGIT S. BARNES, ESQ. CSB #122673 2 ANNIE R. EMBREE, ESQ., OF COUNSEL CSB #208591 3 3262 Penryn Road, Suite 200 Loomis, CA 95650 4 Telephone: (916)660-9555 Facsimile: (916) 660-9554 '° COUNTY 5 Attomeys for Petitioners and Plaintiffs 6 STAND UP CALIFORNIA!; PATTY JOHNSON; 7 And JOE TEIXEIRA 8 SUPERIOR COURT OF THE STATE OF CALIFORNL\ 9 COUNTY OF SACRAMENTO 10 11 12 STAND UP CALIFORNL\!; PATTY CaseNo. 34-2016-80002493 JOHNSON; and JOE TEIXEIRA, 13 DECLARATION OF ASHLEE N. TITUS IN Petitioners and Plaintiffs, SUPPORT OF EX PARTE APPLICATION 14 FOR ORDER TO SHOW CAUSE RE PRELIMINARY INJUNCTION AND 15 TEMPORARY RESTRAINING ORDER CITY OF ELK GROVE, 16 Respondent and Defendant. Date: December 22,2016 17 ELK GROVE TOWN CENTER, LP; Time: 9:00 am 18 HOWARD HUGHES CORPORATION; and DOES 1-20, (Ex parte calendar) Dept. 24 19 Real Parties in Interest and Verified Petition Filed: November 23,2016 •20 Trial Date: None Defendants. 21 22 23 24 I, ASHLEE N. TITUS, declare as follows: 25 1. I am a partner with the law firm of Bell, McAndrews and Hiltachk, LLP, counsel 26 for Knighted Ventures, LLC. I am a member of the Califomia State Bar and am admitted to 27 practice before this Califomia Court. I am familiar with all documents attached to this 28 declaration, tme and correct copies of which are attached hereto. I make this declaration of my TITUS DECLARATION ISO EX PARTE APP FOR OSC-TRO -1 1 personal knowledge of the facts stated herein, and could and would competently testify to them if 2 called to do so. 3 2. On October 22, 2014, the City Council of the City of Elk Grove approved 4 Ordinance No. 29-2014 to adopt a development agreement with Elk Grove Town Center, LP, to 5 develop "The Outlet Collection at Elk Grove" located in the Lent Ranch Special Planning Area. 6 The October 22, 2014 action by the City Council modified the prior plan for the development 7 fi-om a traditional mall to an outlet concept. Exhibit A to the Development Agreement adopted 8 by Ordinance No. 29-2014 set forth the "Legal Description of the Property." Ordinance No. 29- 9 2014 is attached to this Declaration as Exhibit 1. 10 3. On October 26, 2016, the City Council of the City of Elk Grove approved 11 Ordinance No. 23-2016 to amend the Development Agreement approved by Ordinance No. 29- 12 2014, and more particularly, to amend Exhibit A, the "Legal Description of the Property." The 13 City Clerk attested Ordinance No. 23-2016 on the same date. The amendment removed the 14 Phase 2 portionfi-omthe Development Agreement. Ordinance No. 23-2016 is attached to this 15 Declaration as Exiiibit 2. 16 4. The purpose of the October 26, 2016 amendment to the Development Agreement 17 was to allow Elk Grove Town Center, LP to sell that portion of the property to the Wilton 18 Rancheria in order to develop a "hospitality and entertainment facility," which would include a 19 hotel, a convention center, restaxirants and bars, and a Las Vegas-style casino. The City Council 20 of the City of Elk Grove passed Resolution No. 2016-183 approving a Memorandum of 21 Understanding with the Wilton Rancheria on September 28, 2016, "for mitigation fimding 22 related to a proposed entertainment and gaming facility." Resolution No. 2016-183 is attached to 23 this Declaration as Exhibit 3. 24 5. When Ordinance No. 23-2016 was passed by the City Council, Knighted 25 Ventures, LLC providedfimdingto allow a referendum petition to be printed and circulated 26 among the registered voters of the City of Elk Grove, to demand that the City Council reconsider 27 amending the Development Agreement to remove the Phase 2 jwrtion ofthe propertyfi-omthe 28 Mall proper, as a necessary step toward the Phase 2 property being acquired by Wilton Rancheria TITUS DECLARATION ISO EX PARTE APP FOR OSC-TRO - 2 1 for development as a casino resort. A copy of the referendum petition is attached to this 2 Declaration as Exhibit 4. 3 6. In accordance with the Elections Code provisions applicable to municipal 4 referendum petitions, a referendum petition must be presented to the city clerk within 30 days of 5 the date the adopted ordinances is attested by the city clerk, containing signaturesfi-omnot less 6 than 10 percent of the voters of the city according to the county elections official's last official 7 report of registration to the Secretary of State. When a referendum petition containing a 8 sufficient number of signatures is filed by the deadline, the effective date of the ordinance is 9 suspended pending examination of the signatures and action by the city council. (Elec. Code § 10 9237.) 11 7. The deadline to file the referendum petition of Ordinance No. 23-2016 was 12 November 25, 2016. 13 8. The last official report ofregistration by Sacramento Coimty to the Secretary of 14 State prior to the November 25, 2016 referendum deadline was made on October 27, 2016, and 15 showed that Elk Grove had 88,950 registered voters (see page 155). The October 27, 2016 16 Report of Registration posted on the Secretary of State's website 17 [http://elections.cdn.sos.ca.gov/ror/ror-pages/15day-gen-16/politicalsub.pdfl is attached to this 18 Declaration as Exhibit 5. 19 9. In order to qualify, the referendum petition needed 8,895 signatures from 20 confirmed-registered voters within the City, or 10% of the City's registered voters. 21 10. OnNovember 21, 2016, a petition to referend Ordinance No. 23-2016 was filed 22 with the Elk Grove City Clerk containing 14,800 signatures. A copy of the transmittal letter 23 endorsed by the City Clerk is attached to this Declaration as Exhibit 6. 24 11. Upon acceptance of a referendum petition, the City Clerk has 30 days, excluding 25 weekends and holidays, to verify the number of valid signatures presented on the petition, and to 26 ascertain whether the petition contains a sufficient number to qualify. (Elec. Code §§ 9240, 27 9114,9115.) 28 TITUS DECLARATION ISO EX PARTE APP FOR OSC-TRO - 3 1 12. The deadline for verification of the signatures on the referendum petition of 2 Ordinance No. 23-2016 is January 6,2017. 3 13. If the petition is determined to have contained at least 8,895 signaturesfi-omElk 4 Grove registered voters, the City Clerk shall notify the proponent of the petition, and shall certify 5 the results of the examination of the petition to the City Council at the next regular meeting of 6 the Council. (Elec. Code §§ 9240, 9114, 9115.) 7 14. Based on a review of City regulations, the Elk Grove City Council generally 8 meets the second and fourth Wednesdays of each Month. The next City Council meeting after 9 the deadline for examination of the petition signatures is January 11,2017. 10 15. At the meeting when the City Clerk certifies the results of the examination of the 11 petition, the City Council shall have two options: entirely repeal the ordinance against which the 12 petition is.filed; or submit the ordinance to the voters at the next regular municipal election or a 13 special election occurring not less than 88 days after the order. (Elec. Code § 9241.) 14 16. Assuming the referendum petition is certified at the January 11, 2017 City 15 Coimcil meeting, the earliest an election could be held is April 11, 2017 (the Tuesday 16 immediately following the 88th day after January 11, 2017). 17 17. The next regular municipal election for the City of Elk Grove following the 18 January 11, 2017 City Covmcil meeting is November 6,2018. The City of Elk Grove's regular 19 municipal elections are held on the first Tuesday after the first Monday in November of even 20 numbered years. (Elk Grove Municipal Code § 1.02.010.) 21 I declare, under penalty of perjury under the laws of the State of Califomia, that the 22 foregoing is tme and correct. 23 Executed on December , 2016, at Sacramento, Califomia. 24 25 26 ASHLEE 27 28 TITUS DECLARATION ISO EX PARTE APP FOR OSC-TRO - 4 Exiiibit 1 ORDINANCE NO. 29-2014 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF ELK GROVE ADOPTING A DEVELOPMENT AGREEMENT WITH ELK GROVE TOWN CENTER. LP WHEREAS, on June 27, 2001, the City Council certified the Environmental Impact Report (EIR. State Clearinghouse No. 1997122002) for the Lent Ranch Marketplace Project and adopted the Lent Ranch Special Planning Area, which provided for the development of a regional mall and surrounding retail, office, and entertainment development; and WHEREAS, the Planning Division of the City of Elk Grove received an application on April 11, 2014 from Elk Grove Town Center, LP (the "Applicant") requesting an amendment to the approved District Development Plan for the Regional Mall site (District A) ofthe Lent Ranch Special Planning Area (the "Project"); and WHEREAS, the proposed Project is located on real property in the incorporated portions ofthe City of Elk Grove more particularly described as APN 134-1010-001; and WHEREAS, the City detennined that the Project is subject to the California Environmental Quality Act; and WHEREAS, the Project is located within the Lent Ranch Special Planning Area for which an EIR (State Clearinghouse No. 1997122002) was prepared and certified July 2001; and WHEREAS, California Environmental Quality Act (CEQA) Guidelines section 15162 Identifies that when an EIR has been certified for a project, no subsequent EIR shall be prepared for that project unless then lead agency (the City) determines, on the basis of substantial evidence in light of the whole record, one or more substantial change in the project, circumstances, or infonnation (as defined in the section) have occurred; and WHEREAS, the Planning Commission held a duly noticed public hearing on September 18, 2014 as required by law to consider all of the information presented by staff, information presented by the Applicant, and public testimony presented in writing and at the meeting; and WHEREAS, the City Council held a duly noticed public hearing on October 8, 2014 as required by law to consider all of the information presented by staff, infonmation presented by the Applicant, and public testimony presented in writing and at the meeting. NOW, THEREFORE, the City Council of the City of Elk Grove does hereby ordain as follows: Section 1: Purpose The purpose of this Ordinance is to adopt the Development Agreement with Elk Grove Town Center, LP for the Project known as The Outlet Collection at Elk Grove. Section 2: Findings This Ordinance is adopted based upon the following findings: California Environmental Quality Act (CEQA) Finding: No further environmental review is required under the Califomia Environmental Quality Act pursuant to State CEQA Guidelines section 15162. Evidence: The City has reviewed the Project and analyzed it based upon the provisions in section 15162 ofthe State CEQA Guidelines. As described in the Project description, the Project will modify the format of the Regional Mall from a "traditional" mall to an "outlet" concept, but the configuration of the Project will be within the development parameters analyzed under the 2001 EIR for the Lent Ranch SPA. Specifically, the EIR identified a total leasable area of 1,300,000 square feet for District A and the Project proposes a first phase of approximately 775,000 total square feet with 689,000 being gross leasable area, or approximately 53-percent of the total allowed gross leasable area. Phase 2 has not been proposed for development as part of the project description, but will be required to fall within the approved uses and total development potential of the SPA that were analyzed in the 2001 EIR. The characteristics of the Phase 2 area are undefined and subject to speculation and, pursuant to CEQA Guidelines section 15145, cannot be further analyzed at this time. The proposed wireless telecommunication ^cilities (through the conditional use permit) will be within the core development area and are design consistent with the maximum height and density/intensity of development othenwise allowed in the District. Therefore, there are no substantial changes in the Project from that analyzed in the 2001 EIR and no new significant environmental effects, or substantial increase in the severity of previously Identified significant effects. No new information of substantial importance has been identified. Further, since no changes to the EIR are necessary to support the Project, the City is not required to prepare an Addendum to the EIR as required by State CEQA Guidelines Section 15164. Therefore, the prior EIR is sufficient to support the Project and no further environmental review is required. Development Agreemerit Finding #1: The development agreement is consistent with the General Plan objectives, policies, land uses, and implementation programs and any other applicable specific plans. Evidence: The proposed Development Agreement is consistent with the General Plan as the General Plan designates the subject property for commercial development and the Development Agreement provides for the development up to the 1,300,000 square feet allocated for District A, consistent with the Special Planning Area. The site is not subject to a specific plan. Finding #2: The development agreement is in conformance with the public convenience and general welfare of persons residing in the immediate area and will not be detrimental or injurious to property or persons in the general neighborhood or to the general welfare of the residents of the City as a whole. Evidence: The Project is in conformity with public convenience, general welfare and good land use practices because it will develop a Regional Mall along the Highway 99 corridor that wiil accommodate the growing need for such services in the City of Elk Grove and surrounding region. The Project will create a commercial, retail, and entertainment development that is of high quality and fully integrated on one site rather than less desirable piecemeal land uses spread out over several other locations. The Project will provide an expanded economic base for the City of Elk Grove through the generation of significant increased tax revenue. The Development Agreement is necessary in order to obtain the major investment necessary to develop the Project. Absent approval of the Development Agreement, the City would not obtain the benefits of the Project to the community. The Development Agreement will establish land use regulations for a reasonable period to allow project build out in accordance with the approved entitlements for development, and to ensure a cohesive development. The Project will provide the variety of land uses noted above at one attractively designed, well-planned site, located adjacent to major highways and a freeway interchange for maximum public convenience. The Project will also provide these services to the residents of existing and planned residential developments, thereby reducing the number of vehicle miles traveled to obtain these same services at greater distances, and improving air quality. The Project will also create indirect economic benefits and serve as a catalyst for additional economic activity as a result of job creation and the spending of Project wages in the City. Thus, in accordance with good land use practices, the Project will promote a better balance of employment, services and housing, and improve the mix of uses in the community. Finding #3: The development agreement will promote the orderly development of property or the preservation of property values. Evidence: the Project site is designated in the General Plan for commercial development. Approval of the Project will result in the development of these lands and the provision of urban levels of public infrastructure and services to areas within the City. Thus, the uses proposed by the Project are consistent with those envisioned for the area in the General Plan. The Project will contribute to a balance of land uses within the City by providing a diversity of necessary services that respond to the needs of the surrounding community and the region. The Project will be compatible with and preserve (or even Increase) the property values of the predominantly residential development proposed or othenn/ise approved for surrounding areas, by providing necessary and desirable services nearby. The Project, as designed, will be a cohesive, planned multi-use development, and will provide a visually pleasing, safe and attractive gathering place that will encourage community identity. Necessary infrastructure, including sewer, water, and roadways, to serve the Project have been constructed. As a result, the Project will not adversely affect the orderly development of property, and property values will be preserved or increased. Section 3: Action The City Council hereby approves and adopts the Development Agreement between the City of Elk Grove and Elk Grove Town Center, LP, attached as Exhibit A and incorporated herein by this reference. The City Manager is hereby authorized and directed to execute the Development Agreement on behalf of the City. Section 4: No Mandatory Duty of Care. This ordinance is not intended to and shall not be construed or given effect in a manner that imposes upon the City or any officer or employee thereof a mandatory duty of care towards persons and property within or without the City, so as to provide a basis of civil liability for damages, except as othenvise imposed by law. Section 5: Severabilitv. if any provision of this ordinance or the application thereof to any person or circumstances is held invalid, such invalidity shall not affect other provisions or applications of the ordinance which can be given effect without the invalid provision or application, and to this end the provisions of this ordinance are severable. This City Council hereby declares that it would have adopted this ordinance inrespective of the invalidity of any particular portion thereof and Intends that the invalid portions should be severed and the balance ofthe ordinance be enforced. Section 6: Savings Clause The provisions of this ordinance shall not affect or impair an act done or right vested or approved or any proceeding, suit or prosecution had or commenced in any cause before such repeal shall take affect; but every such act done, or right vested or accrued, or proceeding, suit or prosecution shall remain in full force and affect to all intents and purposes as if such ordinance or part thereof so repealed had remained in force. No offense committed and no liability, penalty or forfeiture, either civilly or criminally incurred prior to the time when any such ordinance or part thereof shall be repealed or altered by said Code shall be discharged or affected by such repeal or alteration; but prosecutions and suits for such offenses, liabilities, penalties or forfeitures shall be instituted and proceeded with In all respects as if such prior ordinance or part thereof had not been repealed or altered. Section 7: Effective Date and Publication This Ordinance shall take effect thirty (30) days after its adoption. In lieu of publication of the full text ofthe ordinance within fifteen (15) days after its passage, a summary of the ordinance may be published at least five (5) days prior to and fifteen (15) days after adoption by the City Council and a certified copy shall be posted in the office of the City Clerk, pursuant to GC 36933(c)(1). ORDINANCE: 29-2014 INTRODUCED: October 8, 2014 ADOPTED: October 22, 2014 EFFECTIVE: November 21, 2014 GARy^3Avrs,^AYOR of the CITY OF ELK GROVE ATTEST: APPROVED AS TO FORM: LINDGREN>^pffY CLERK ONATHAN PTFTOBBS, CITY ATTORNEY EXHIBIT A OFFIQAL CITY BUSINESS No recording fee Govemment Code Section 6103 RECORDING REQUESTED BY: City of Elk Grove 8401 Laguna Palms Way Elk Grove, CA 95758 Attn: City Clerk WHEN RECORDED MAIL TO: City of Elk Grove 8401 Laguna Palms Way Elk Grove, CA 95758 Attn: City Qerk (SPACE ABOVE THIS LINE RESERVED FOR RECORDER'S USE) DEVELOPMENT AGREEMENT BETWEEN THE CITY OF ELK GROVE, AND ELK GROVE TOWN CENTER, LP DEVELOPMENT AGREEMENT This Development Agreement (this Agreement) is entered into between the City of Elk Grove ("City"), and Elk Grove Town Center, LP, a Delaware limited partnership ("Developer"). For the purposes of this Agreement, Developer and City are referred to individually as "Party" and collectively as the "Parties." RECITALS This Agreement is predicated upon the following findings: A. On September 5,2001 by Ordinance 13-2001, the Elk Grove City Council adopted that certain Development Agreement among the M&H Realty Partners III L.P, a Califomia limited partnership ("M&H Realty"), Robert H. and Lisa Lent, the Brian Wayne Lent Trust, and Susan Rasmussen (the "Lents"), the Marilyn J. Wackman Revocable Trust; and the City of Elk Grove, for the developrnent of the 295-acre Lent Ranch Marketplace Special Planning Area (the "2001 Development Agreement"), and B. Concurrently with the approval of the 2001 Development Agreement, the City adopted the Lent Ranch Marketplacie Special Plaiming Area ("SPA"), along with amendments to the City's General Plan and Zoning Code, and certified an Environmental Impact Report pursuant to the requirements of the California Environmental Quality Act ("CEQA"); and C. Developer is that party identified as the "Mall Developer" under the 2001 Development Agreement; and D. Pursuant to the 2001 Development Agreement and the SPA, on July 11, 2007 the Elk Grove City Council approved a Development Plan Review (EG-05-878) for the Elk Grove Promenade development, which permitted the construction of an initial 1.1 million squeu^ foot open-air regional mall in SPA District A; and E. Developer has completed construction of major backbone infrastructure and offsite improvements to serve the SPA area; and F. WhUe substantial construction of the Elk Grove Promenade project was undertaken, the project was stopped in December 2008 due to the economic recession and the banikruptcy reorganization of General Growth Properties, Inc.; and G. Developer has submitted a plan for the substantia reuse of the existing building construction and improvements in SPA District A, through the development of commercial and retail uses; and H. The approved Development Plan Review described in the Project Approvals will result in development of the Property and significant benefits to the City through tax revenue, employment opportunities and the utilization of a partially developed but vacant property at a critical gateway location in the City; and I. In exchange for the benefits to the City, Developer desires to receive the assurance that it may proceed with the Project in accordzmce with the Existing Land Use Regulations, subject to the terms and conditions contained in this Agreement and to secure the benefits afforded Developer by Govemntent Code §65864. NOW, THEREFORE, the Parties agree as follows: TERMS AND CONDITIONS 1. Definitions 1.1. "Adopting Ordinance" is the ordinance of the City Council approving this Agreement, as adopted on October 22,2014 by City Ordinance No. 29- 2014. 1.2. "City" means the City of Elk Grove, and depending on the context, may include its agents, officers, employees, representatives and elected and appointed officials. 1.3. "City Coimcil" shall mean the City Council of the City of Elk Grove and its designees. 1.4. "Developer" means Elk Grove Town Center LP or any Successor. 1.5. "Development Agreement Law" means Govemment Code Section 65864 et seq. 1.6. "Effective Date" meai\s that day on which tiie Adopting Ordinance shall be effective 30 days after its adoption by the City Council, unless the Adopting Ordinance becomes subject to a qualified referendiun, in which case the Effective Date shall be the day after the referendum election, if the Adopting Ordinance is approved by a majority of the voters. Litigation filed to challenge the Adopting Ordinance or this Agreement shall not affect the Effective Date, al»ent a court order or judgment overturning or setting aside the Adopting Ordiiumce, or staying the Effective Date, or remanding the Adopting Ordinance to the City. 1.7. "EIR" means that certain Draft and Final Environmental Impact Report for the Project, State Qearinghouse No, 1997122002, as certified by the City Council in June 2001, and including all Addenda thereto subsequently approved by the City. 1.8. "Existing Land Use Regulations" means the City of Elk Grove General Plan, any applicable specific plans, and the Elk Grove zoning ordinance existing as of September 5,2001, except as modified by the 2001 Approvals. 1.9. "Fee" shall include charges, expenses, costs, monetary exactions and any other monetary obligation imposed on Developer by the City, and shall not be Umited to fees paid pursuant to this Agreement, but shall not include fees collected by City on behalf of and for the benefit of another public agency. (The term "fee" need not be capitalized in this Agreement.) 1.10. "Improvement" means any on-site or off-site conveyance, grant or dedication of property or propertyrights,non-monetcuy exaction, construction and/or installation of a work of public improvement, street, facility, utility or park or recreational amenity which is to be transferred td the City or any otiier contribution of property (other than fees), imposed on Developer by the City, as applicable. (The term "improvement" need not be capitalized in this Agreement.) 1.11. "Law" means the case law, ordinances, statutes, mles, regulations, standards, policies, programs, or any order, decree or directive of any comt or any local, regional, state or federal govemment agency, including the City, urUess the context suggests a different meaning. 1.12. "Mitigation Measures" mean the mitigation measures included in the EIR or its mitigation monitoring plan as modified and/or adopted by the City CouncU. 1.13. "New Construction" shall mean any building, structure or improvement that is not part of the original 572,368 sqxiare feet of shell biiildings permitied, and that has not already been partially constructed as of the Effective Date. 1.14. "Project" is defined by reference to the Project Approvals, as supplemented by the provisions of this Agreement. 1.15. "Project Approvals" shall mean the following land use approvals, aU approved on or before October 22, 2014 which, annong other things, govern the permitted uses, density and intensity of land uses, the timing and sequencing of development, and the maximum height and size of proposed buildings with respect to the Property: 1.15.1. This Agreement, as adopted by the Adopting Ordinance 1.15.2. Regional Mall District Development Plan & Review, File. 14-012. 1.15.3. Amendments to the Lent Ranch Special Planrting Area, as adopted by the City Coimcil by Ordinance 28-2014. 1.16. "Property" is that certain real property consisting of approximately 100.34 acres in the City of Elk Grove, Assessor's Parcel Number 134-1010-001, and more particularly described in Exhibit A hereto. The term "Property" may include any part of the Property, depending on the context. 1.17. "SPA" shall mean the Lent Ranch Marketplace Special Plaiuiing Area, as approved by the City on September 5,2001 and cunended by fhe Qty, per Ordinance 28-2014. 1.18. "SPA District A" shall mean the Property, as defined and regulated under tiie SPA 1.19. "Successor" is any assignee pursuant to Section 10 (i.e., any recognized successor in interest under this Agreement), and any subsequent assignees. 1.20. "2001 Approvals" shall mean those approvals and entitiements approved by the City in June 2001, as follows: 1.20.1. General Plem Amendments as adopted by Resolution No. 2001-43 for the Lent Ranch Marketplace development 1.20.2. Zoning Code Text Amendment to Establish the SPA, as adopted by Ordinance No. 10-2001 and the remaining provisions of the Zoning Code in effect as of September 5, 2001 1.20.3. Tentative Parcel Map for the Lent Ranch Marketplace, as adopted by Resolution No, 2001-43, and all final subdivision maps affecting the Property 1.20.4. The EIR, as defined by Section 1.7 1.20.5. The 2001 Development Agreement 1.21. . "2001 Development Agreement" shall mean that certain Development Agreement adopted by Ordinance 13-2001 on September 5,2001, 1.22. "Vested right" is a right to proceed with the development of the Project in accordance with: (1) the terins and scope of the Project Approvals as defined intiiisAgreement, which Project Approvals may not he amended, modified or changed by the City except as provided by this Agreement, and (2) the Existing Land Use Regulations, and (3) the rights vested by the 2001 Development Agreement as set forth in Exhibit B of this Agreement (The term "vested right" need not be capitalized in this Agreement.) 2, Representations, Warranties and Acknowledgments 2.1. Titie to Property, Developer represents and warrants that as of the Effective Date, Developer holds a legal or equitable interest in and to the Property. 2.2. Authority. The parties represent and warrant that the persons signing this Agreement are duly authorized to enter into and execute this Agreement on behalf of their respective principals, 2.3. Agreement as Binding Covenant. The parties intend and determine that the provisions of this Agreement shall constitute covenants which shall run with said Property, and the burdens and benefits hereof shall bind and inure to aU successors in interest to the parties hereto. All of the provisions of this Agreement shall be enforceable during the Term as equitable servitudes and constitute covenants running with the land pursuant to applicable law, including, but not limited to Section 1468 of the Civil Code of the State of Califomia, Each covenant to do or refrain from doing some act on the Property hereunder, or with respect to any City owned property or property interest, (i) is for the benefit of such properties and is a burden upon such property, (ii)ranswith such properties, and (iii) is binding upon each party and each successive owner during ite ownership of such properties or any portion thereof, and each person or entity having any interest therein derived in any marmer through any owner of such properties, or any portion thereof, and shall benefit each party and ite property hereunder, and each other person or entity succeeding to an interest in such properties, 3. Term and Termination 3.1. Term. The term of this Agreement shall commence on the Effective Date and shall last four (4) years following the Effective Date, unless this Agreement is (1) earlier tenninated as set forth in this Agreement or (2) extended in writing by mutual agreement of all of the parties. In the event that development of 400,000 square feet of gross building area pursuant to the Project Approvals is completed (as documented by the issuance of a final certificate of occupancy for 400,000 square feet of gross building area), the Agreetnent shall automatically be extended for an additional period of ten (10) years without the need for further action or approval by the parties. Otherwise, this Agreement shall automatically expire on the fourth anniversary of the Effective Date, 3.2. Termination by Mutual Consent. This Agreement may be terminated in whole or in part by the mutual written consent of all of the parties. Any fees paid or improvemente dedicated to the City prior to the effective date of termination shall be retained by the City, as applicable. Notwithstanding the above, nothing in this section shall be interpreted to result in the forfeiture of impact fees or permit fees (or eligibility for fee ,^ credite or refunds) previously paid by Developer for building square footage that has either (1) not been constructed as of the date of termination of this Agreement by mutual consent, or (2) previously constructed by Developer and demolished pursuant to the Project Approvals. 3.3. Effect of Termination. Termination of this Agreement, whether by mutuad written consent as provided in Section 3.2, default as provided in Section 8, or by expiration of ite own accord, shall not: (1) affect any pre- existing liability under this Agreement owed by one party to the other, which remains unsatisfied as of the effective date of termination; (2) affect those provisions of this Agreement which provide that they shall survive the termination of this Agreement; (3) be construed to tenninate or modify an applicable covenant, condition, servitude or restriction that runs with the land and binds Successors; (4) affect the validity of any structure on the Property or improvement which is completed as of the date of termination and is in compliance with all necessauy permite; or (5) prevent Developer from completing any structure on the Property or improvement under construction at the tinie of termination, provided that any such structure or improvement is completed in accordance with etll necessary permite. 3.4, Effect of Termination on Vested Righte. Upon termination of this Agreement, whether by mutual written consent as provided in Section 3.2 or default as provided in Section 8 or by expiration of ite own accord, the Project Approvals and any amendments thereto shall not automatically be repealed or rescinded, but Developer shall no longer have a vested • right to them except to the extent that Developer has independently acquired a common law vestedrightto them. 4, F*roject Approvals and Vested Rights 4.1. Project Approvals. Upon the Effective Date, and except as otherwise provided in this Agreement, Developer shall acquire and/or maintain a vested right in the Project Approvals, the 2001 Approvals and the Existing Land Use Regulations for the term of this Agreement. Developer shall acquire a vested right to any amendmente to the Project Approvals, the 2001 Approvals or Existing Land Use Regulations affecting the Property as of the date of approval of such amendmente by the City Council; provided, however, that Developer shall not acquire a vested right to any such amendment approved after the expiration of the term of this Agreement. 4.2. Development Standards, The density and intensity of use, tiie rate, timing and sequencing of development, the maximum height and size of proposed buildings, and provisions for reservation and dedication of land shaU be as set forth in the 2001 Approvals, except as modified by the Project Approvals, 4.3, Phasing and Timing of Etevelopment The parties recognize that the Project is the initial phase of development within SPA District A, and further development within SPA District A may occur in one or more additional phases. The parties acknowledge that, as of the Effective Date, Developer has not proposed a plan for the development of future phases within the SPA, The City retains discretion to review and approve subsequent applications for future phases of development within SPA District A, subject to the vestedrighteprovided by this Agreement. With the exception of the Project, the parties acknowledge that Developer caimot at thistimepredict with certainty when or the rate at which phases of the Property would be developed. Such decisions depend upon numerous factors which are not all within the control of Developer, such as market conditions and demand, interest rates, competition and other factors. Because the Califomia Supreme Court held in Pardee Construction Co. V. City of Camarillo, 37 Cal,3d 465 (1984), that the failure oftiieparties therein to provide for the timing of development resulted in a later adopted initiative restricting the timing of development controlling the parties' agreement, it is the intent of City and Developer to hereby acknowledge and provide for therightof Developer to develop the Property in such order and at such rate and times as Developer deems appropriate within the exercise of ite sole and subjective business judgment, subject to the terms> requiremente and conditions of the Project Approvals and this Agreement, City acknowledges that such a right is consistent with the intent, purpose and understanding of the parties to this Agreement, and that without such a right. Developer's development of the Property would be subject to the uncertainties sought to be avoided by the Development Agreement Statute and this Agreement. The Developer shall use ite best efforts, in accordance with its business judgment and taking into consideration market conditions and other economic factors influencing Developer's business decision, to commence or to continue development, and to develop the Property in a regular, progressive and timely maimer in accordance with the provisions and conditions of this Agreement and with the Project Approvals. Notwithstanding the foregoing, it is the Developer's intent, without limiting ite legalrighte,to develop not less than 400,000 square feet of gross building area eligible for a final certificate of occupancy prior to the fourth anniversary of the Effective Date. 4.4, Initiatives. Referenda and Growth Control, Subject to the vesting provisions of the Development Agreement Law, Developer and City intend that, except as otherwise provided herein, this Agreement shaU vest the Project Approvals against subsequent City resolutions. ordinances, growth control measures and initiatives or referenda, other than a referendum that specifically overturns City's approval of the Development Agreement, that would directiy or indirectiy limit the rate, timing or sequencing of development, or would prevent or conflict with the land use designations, permitted or conditionally permitted uses on the Property, design requiremente, density and intensity of uses as set forth in the Project Approvals, and that any such resolution, ordinance, initiative or referendum shaU not apply to the development of the Property, Notwithstanding any other provision of this Agreement, Developers shall, to the extent allowed by the Development Agreement Law, be subject to any growth limitation ordinance, resolution, rule, regulation or policy which is adopted and applied on a uniform, city- wide basis and directiy concems an imminent public health or safety issue. In such case. City shall apply such ordinance, resolution, rale, regulation or policy uniformly, equitably and proportionately to Developer and the Property and to all other public or private owners and properties directiy affected thereby, 4.5. Reserved Powers. Subject to the vested righte granted by this Agreement, the City reserves the right to; 4.5.1. Grant or deny applications for land use approvals for the Project and the Property, provided such grant or denial is consistent with this Agreement; 4.5.2. Approve, disapprove or revise subdivision maps, parcel maps or lot line adjustmente for the Project and the Property, provided such grant or denial is consistent with this Agreement; 4.5.3. Adopt, increase and impose regular taxes applicable on a City- wide basis; 4.5.4. Adopt increase and impose utility charges applicable on a City- wide basis; 4.5.5. Adopt, increase and impose permit processing fees, inspection fees and plan check fees applicable on a City-wide basis; 4.5.6. Adopt and apply regulations mandated by Law or necessary to protect the public health and safety. To the extent that such regulations affect the Developer, the City shall apply such ordiiumce, resolution, rule, regulation or policy uniformly, equitably and proportionately to Developer and the Property and all other public or private owners and properties affected thereby. For purposes of this Agreement any Law with respect to flood protection shall be deemed necessary to protect the public health and safety; 4.5.7, Adopt, increase or decreeise the amount of, fees, charges, assessmente or special taxes, except to the extent restricted by this Development Agreement; provided, however, that Developer may challenge the imposition of any newly imposed fee solely on the grounds that such fee was not properly established in accordance with applicable law; 4.5.8. Adopt and apply regulations relating to the temporary use of land, the control of traffic, the regulation of sewers, water, and similar subjecte, and the abatement of public nuisances; 4.5.9. Adopt and apply City engineering design standards and constraction specifications; 4.5.10, Adopt and apply the various building standards codes, as further provided in Section 4,6; 4.5.11. Adopt Laws that are not in conflict with, or that are less restrictive than, the terms and conditions for development of the Project established by this Agreement; and 4.5.12, Exercise ite power of eminent domain with respect to any part of the Property, 4.6, Building Codes Applicable, New constraction undertaken pursuant to the Project Approvals shall be constiucted in accordance with the California Building Standards Codes, Titie 24 of the Califomia Code of Regulations, as adopted and amended by the City, as the same shall be in effect as of the time of approval of the permit in question. If no permit is required for a given infrastracture improvement or other improvement, such improvement will be constracted in. accordance with said Codes in effect in the City as of the commencement of constraction of such improvement. 4.7, Meet and Confer, If Developer believes that the City is taking action to impair a vestedrightconferred by this Agreement, Developer shall provide written notice to City describing the basis for Developer's position. The parties shall meet and confer within thirty (30) days thereafter in an attempt to arrive at a mutually acceptable solution 4.8, Court Order or judgment. Notwithstanding an)rthing in this Agreement to the contiary, a vestedrightacquired by Developer with respect to any Project Approval shall be deemed a nullity without compensation to Developer in the event that such Project Approval is overturned or set aside by a court of law. An invalidated Project Approval shall regcun its vestedrightstatus in the event that the court's decision is reversed on appeal. 10 4.9, Effect on 2001 Development Agreement Except as provided in Exhibit B, Developer shall have no further righte or obligations under the 2001 Development Agreement which shall be superseded with respect to the Property and Developer by this Agreement. Nothing in this Agreement shall effect or modify the righte or obligations of the 2001 Development Agreement as to those parties (or any of them) identified as "Developers" therein. 5. Fees, Improvemente and Mitigation Measures 5.1. Waiver of Fee Vesting, Notwithstanding anything in this Agreement to the contrary, but subject to Section 5.3 and the 2001 Approvals (including Exhibit E to the 2001 Development Agreement), Developer hereby waives the vesting of all City fees. Accordingly, the amount of all fees not addressed under Section 5,3 of this Agreement and the 2001 Approvals shall be determined as of the time they become due and payable after imposition by the City, Nothing herein shall preclude Developer from challenging the establishment of any new fee (as opposed to an increase in an existing fee) solely on the grounds that such fee was not properly established in accordance with applicable law or this Agreement 5.2. Processing Fees, Developer shall pay all City coste in connection with processing and preparing any Project pennit, certificate, map, approval, consent or agreement, including this Agreement All such coste incurred prior to the Effective Date shall be paid in full, prior to the Effective Date. Thereafter, all such coste incurred must be paid, in full, prior to approval of each phase of the Project as determined by the City. 5.3, Developer's Satisfaction of Prior Obligations under the 2001 Development Agreement It is acknowledged by the parties that many of the obligations of Developer under the 2001 Development Agreement for payment of fees, dedication of land