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HomeMy WebLinkAboutBonfante Gardens, Inc. - Performance Agreement r=-' ~c;; RESIDENTIAL DEVELOPMENT ORDINANCE PERFORMANCE AGREEMENT This Residential Developmen}r Ordinance Performance Agreement ("Agreement"), is made and entered into as of the L day of April, 2005, by and between the CITY OF GILROY, a Municipal corporation ("City"), and BONF ANTE GARDENS, INe. ("Developer"). RECIT ALS A. WHEREAS, the City has enacted a Residential Development Ordinance, Sections 50.60 et seq. of the Zoning Ordinance (the "RDO"); and B. WHEREAS, Developer submitted RDO Request 04-01, requesting a special exception pursuant to Zoning Ordinance Section 50.63(c)(3) for 99 RDO allocations to be used to build residential units on 32.9 acres ofland, APN 810-20-016 (the "Property"), adjacent to Bonfante Gardens Theme Park (the "Park"); and e. WHEREAS, on September 7, 2004, the City Council adopted Resolution No. 2004-79 (the "Resolution") granting to Developer said 99 RDO allocations; and D. WHEREAS, Zoning Ordinance Section 50.63(c)(3) provides that such RDO allocations are available only to a non-profit, 501(c)(3) public benefit corporation operating a major existing community facility within the City of Gilroy which requires such allocations in order to continue providing to the City of Gilroy, its residents, and the public generally, the benefits to the community for which it was formed at the facility it operates, and among other conditions, the allocation is for fewer than 100 dwelling units and the applicant agrees that any and all benefits conferred upon it as a result of the issuance of dwelling unit allocations shall be used to continue the operations of the existing community facility; and E. WHEREAS, paragraph 2(B) of Resolution No. 2004-79 provides as follows: Pursuant to Section 50.67, the Applicant shall enter into a Residential Development Ordinance performance agreement with the City that shall (i) set forth a schedule for the above approvals, and (ii) include the Applicant's agreement, pursuant to Section 50.63(c)(3), to use any and all benefits conferred upon Bonfante Gardens, Inc. by the City's issuance of these dwelling unit allocations to continue the operations of Bonfante Gardens Family Theme Park.; and F. WHEREAS, Shapell Industries (the "Residential Developer") is under contract with Developer to buy the Property in order to be able to build approximately 118 residential units thereon (the "Project") as part of an extension of Residential Developer's adjacent Eagle Ridge development, which will require use of the 99 RDO allocations granted by the Resolution, with said contract expected to close by transfer of title to the Property from Developer to Residential Developer on or about July 24, 2005, in consideration of a purchase price of Eighteen Million Five Hundred Fifty Seven Thousand Six Hundred Forty Nine Dollars, subject to possible adjustment in the event of an early closing, as more particularly described in the Purchase Agreement (the "Benefits") to be paid to Developer; and IALF\653546 .1 -1- G. WHEREAS, Section 50.67 of the RDO requires that Developer agree in writing to a set of performance and project standards relating to the Project; and H. WHEREAS, Residential Developer has on file development applications for General Plan Amendment (GPA 04-01), Zone Change (Z 04-10), Architectural & Site - Planned Unit Development (AS 04-39), and Vesting Tentative Map (TM 04-11), all to enable it to develop the Project using the 99 RDO allocations; and I. WHEREAS, although RDO allocations normally do not vest prior to their being used in conformance with a project build-out schedule, in this case due to the special circumstances that justified their issuance it is necessary that the 99 RDO allocations issued by the Resolution vest immediately upon receipt of the Benefits by Developer at a time at which the Park is open for operations (or, if such receipt occurs after the conclusion of a season of operation, then the Park is reasonably expected to be able, after receipt of the Benefits and application thereof to Park operations, to be open for operations for the following season). NOW, THEREFORE, in consideration of the foregoing recitals and the conditions and covenants contained herein, the parties agree as follows: 1. Map Applications and Approvals. The schedule for approvals required in paragraph 2(B) of the Resolution is as follows: the four applications referred to in the Recitals are to be considered by the City Council at its meeting of April 4, 2005, as the same may be continued from time to time. 2. Proiect Standards and Buildout. (a) The Project must be developed in accordance with the time periods designated in this Agreement and in substantial accordance with the Project description set forth in the RDO Application, as such project description may have been amended in connection with the City's approval of the Build-Out Schedule or as it may in the future be amended by mutual written consent of the parties. (b) Notwithstanding Paragraph 2(a) above, should City reduce the number of allowed units for the Project by greater than fifteen percent (15%) as a condition of any City approval, Developer shall have a period of thirty (30) days following such reduction within which to notify City of its intent to proceed with or abandon the Project. Developer's failure to notify City of its intent within this thirty (30) day period shall be deemed an election to proceed with the Project based on the reduced number of allowed units. If Developer elects to abandon the Project, the entire assigned Build-Out Schedule will become automatically null and void. 3. Payment of Deposits and Fees. (a) [Deleted]. (b) Developer shall pay all development fees, permit fees, processing fees, architectural and site review fees, and any other fee in effect at the time any application is filed or approval is sought (whether such fee currently exists or is hereafter established) based on the IALF\653546 .1 -2- applicable fee schedule in effect at the time Developer is required to make full payment of such fees, as such fees become due. 4 . Vested Rights. (a) Subject to Paragraph 4(c) below, Developer acknowledges and agrees that no action taken under the RDO with respect to the Project (including, without limitation, the rating of the Project, the setting of Numerical Limits (referenced in the RDO), the granting of the Build-Out Schedule to Developer, and the execution of this Agreement) shall result in the creation or vesting of any rights whatsoever by Developer with respect to the Project to receive any necessary City approvals or permits or to construct any dwelling units or other improvements. Developer acknowledges and agrees that issuance of necessary City approvals and permits shall be subject to all City ordinances, policies and regulations in effect at the time of issuance. City shall not be obligated to grant any approval sought by Developer, and there shall be no vested rights, by reason of the RDO, the assignment of the Build-Out Schedule, or the existence of this Agreement. If City finally denies, or a court of law finds unlawful, any approval necessary for Developer to construct any portion of the Project for any reason (including without limitation those not within the control of Developer) and the time by which a final map for such portion of the Project is required to be obtained pursuant to this Agreement has expired, then (i) that portion of the assigned Build-Out Schedule for which approvals have been denied or found unlawful shall become automatically null and void, and (ii) if no further units remain to built under the Build-Out Schedule and Developer is not in default under this Agreement, then any portion of the Deposit which has not been applied against Development Fees shall be returned to Developer. (b) Notwithstanding Paragraph 4(a) above, nothing in this Agreement shall be interpreted to preclude Developer from hereafter seeking to obtain any vested rights to develop the Project that may be obtained by execution of a Development Agreement pursuant to Government Code sections 65864 et seq., obtaining a vesting tentative subdivision map pursuant to Government Code sections 66498.1 et seq. or by any other method of obtaining vested development rights permitted by California law; provided, however, that nothing in this Agreement shall be construed as an agreement on the part of City to grant such vested rights. City and Developer agree that any future amendment to the Build-Out Schedule will not impair any vested rights previously obtained by Developer nor automatically amend any vested rights previously obtained by Developer. (c) Notwithstanding Paragraph 4(a) above, because of the special exception to the RDO under which the RDO allocations were issued, said 99 RDO allocations shall immediately become fully vested solely for the use of Residential Developer in the building of its Project upon the receipt by Developer of the full amount of the Benefits pursuant to the closing of the real estate transaction by which the Property is to be sold to Residential Developer at a time at which the Park is actually open for operations (or, if such transfer occurs after the conclusion of a season of operation, then the Park is reasonably expected to be able, after receipt of the Benefits and application thereof to Park operations, to be open for operations for the following season). If the conditions of the preceding sentence are not satisfied no later than the close of business on July 24,2005, then the 99 RDO allocations shall become null and void. IALF\653546 .1 -1- 5. Map Condition or Expiration. Developer acknowledges and agrees that a Tentative Map may contain a condition, at City's option, requiring that the Developer not be in default under the RDO, this Agreement or any conditions of approval applicable to the Project, or in connection with the Build-Out Schedule granted to Developer. Upon expiration of a Tentative Map for any Phase, that portion of such Phases' Build-Out Schedule for which building permits have not yet been issued by the City shall automatically become null and void and this Agreement shall terminate as to such Phase. 6. Default. (a) [Deleted]. (b) [Deleted]. (c) [Deleted]. 7. Legal Fees. If any legal action or suit is brought by a party hereto against the other party hereto concerning this Agreement or the rights and duties of either City or Developer in relation thereto, the prevailing party in such action or dispute, whether by final judgment or out of court settlement, shall be entitled to have and recover of and from the other party all reasonable costs and expenses of suit, including reasonable attorneys' fees. In addition, the prevailing party shall be entitled to recover all reasonable attorneys' fees and costs incurred by the prevailing party in enforcing any judgment obtained against the other party in such action or suit. The foregoing provision relating to post-judgment attorneys' fees is intended to be severable from all other provisions of this Agreement, and shall survive and not be deemed merged into any judgment obtained. 8. Notices. Except as otherwise provided herein, all notices or other communications required or permitted hereunder shall be in writing, and shall be personally delivered with written receipt acknowledging delivery or sent by overnight courier, return receipt requested, and shall be deemed received upon actual receipt. Notices shall be addressed as follows: To Developer: Bonfante Gardens, Inc. 3050 Hecker Pass Highway Gilroy, CA 95020 Attn: Robert Kraemer, President To City: City of Gilroy 7351 Rosanna Street Gilroy, CA 95020 Attn: City Administrator 9. Assignment. Developer shall have the right to assign all or any part of Developer's interest in this Agreement to a third party without the prior written consent of City, provided that City shall be given not less than thirty (30) days prior notice of such assignment, and further subject to this Paragraph 9 below. Upon an assignment by Developer of its rights and obligations hereunder, Developer shall remain fully liable to perform each and every IALF\653546 .1 -4- obligation to be performed by Developer pursuant to this Agreement. Notwithstanding the foregoing, in no event shall the Build-Out Schedule be transferable independently of the Project. Subject to the foregoing, this Agreement shall be binding upon and inure to the benefit of the respective assigns, heirs, successors and legal representatives of each of the parties. 10. Time of Essence. Time is of the essence of each and every term, condition, obligation and provision hereof 11. Counterparts. This Agreement may be executed in multiple counterparts, each of which shall be deemed an original but all of which, together, shall constitute one and the same instrument. 12. No Obligations to Third Parties. Except as otherwise expressly provided herein, the execution and delivery of this Agreement shall not be deemed to confer any rights upon, nor obligate any of the parties hereto, to any person or entity other than the parties hereto. 13. Exhibits. There are no exhibits to this Agreement. 14. Amendment to this Agreement. The terms of this Agreement may not be modified or amended except by an instrument in writing executed by each of the parties hereto. 15. Waiver. The waiver or failure to enforce any provision of this Agreement shall not operate as a waiver of any future breach of any such provision or any other provision hereto. 16. Applicable Law. This Agreement shall be governed by and construed in accordance with the laws of the State of California. 17. Severability. If any provision of this Agreement is, or hereinafter is adjudged to be, for any reason void, unenforceable or invalid, the remainder hereof, or the application of such provision to persons or circumstances other than those as to which it is void, unenforceable or invalid, shall not be affected thereby and shall be and remain in full force and effect to the fullest extent permitted by law. 18. Authority. Each person executing this Agreement represents that the execution of this Agreement has been duly authorized by the party on whose behalf the person is executing this Agreement, and that such person is authorized to execute this Agreement on behalf of such party and to bind such party to this Agreement. 19. Negation of Partnership. The parties specifically acknowledge that the Project is, except to the extent described in the RDO Application, a private development, that no party is acting as the agent of the other in any respect hereunder, and that each party is an independent contracting entity with respect to the terms, covenants and conditions contained in this Agreement. None of the provisions of this Agreement shall be deemed to create a partnership between or among the parties in the businesses of Developer or the affairs of the City, or otherwise, nor shall it cause them to be considered joint venturers or members of any joint enterprise. IALF\6535461 -';- 20. Not a Public Dedication. Except as may be otherwise designated in the RDO Application, nothing herein contained shall be deemed to be a gift or dedication of the Project site, or of the Project, or any portion thereof, to the general public, for the general public, or for any public use or purpose whatsoever, it being the intention and understanding of the parties that this Agreement be limited strictly to and for the purposes herein expressed; provided, however, that the foregoing shall not preclude the City from requiring any gift or dedication to the general public, for the general public, or for any public use in the future in connection with the Project as permitted by law. 21. Construction of Agreement. The provisions of this Agreement shall be construed as a whole according to their common meaning and consistent with the provisions hereof, in order to achieve the objective and purpose of the parties. The captions preceding the text of each Paragraph and subparagraph are included only for convenience of reference and shall be disregarded in the construction and interpretation of this Agreement. Wherever required by the context, the singular shall include the plural and vice versa, and the masculine gender shall include the feminine or neuter genders, and vice versa. IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day and year first above written. CITY: Dated: J v) I } / i! I / ,2005 ~ . . G A "=".,,, A ~~ ,- \ .S'-,Il '" Tr>~ DEVELOPER: Dated: / fr~.( ,2005 By: Name: Title: ;tu~~ IL L e ~ r I' f(/J.-(..,;~? f /Led J-. U-t rr 1J - tU- 't-o ~ \~~~/ "J &? ~ IALF\653546 .1 -0-