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HomeMy WebLinkAboutOrdinance 1720 (Spinnaker Point Development)CLERK'S CERTIFICATE I, JEANNE M. LEONCINI, Clerk of the City of San Rafael, and Ex -officio Clerk of the Council of said City, do hereby certify that the foregoing Charter Ordinance No. 1720 entitled: "AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF SAN RAFAEL, CALIFORNIA, AUTHORIZING THE EXECUTION OF AN AMENDMENT TO A DEVELOPMENT AGREEMENT BETWEEN THE CITY OF SAN RAFAEL AND SIDNEY HENDRICKS, DENNIS HORNE, SPINNAKER POINT DEVELOPMENT, INC., PABLO LAND CORPORATION, AND ROCKPORT LAND CORPORATION ("OWNER") (SPINNAKER POINT SUBDIVISION, FORMERLY KNOWN AS BAYPOINT LAGOONS SUBDIVISION)" was introduced at a REGULAR meeting of the City Council of the City of San Rafael, held on the 17th day of FEBRUARY, 1998, a summary of Ordinance No. 1720 was published as required by City Charter in the MARIN INDEPENDENT JOURNAL, a newspaper published in the City of San Rafael, and passed and adopted as an Ordinance of said City at a REGULAR meeting of the City Council of said City held on the 2nd day of MARCH, 1998, by the following vote, to wit: AYES: COUNCILMEMBERS: Cohen, Heller, Miller, Phillips and Mayor Boro NOES: COUNCILMEMBERS: None ABSENT: COUNCILMEMBERS: None WITNESS my hand and the official seal of the City of San Rafael this 6th day of MARCH, 1998 JEANNe T1. LEONCINI, City Clerk ORDINANCE NO. 1720 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF SAN RAFAEL AUTHORIZING THE EXECUTION OF AN AMENDMENT TO A DEVELOPMENT AGREEMENT BETWEEN THE CITY OF SAN RAFAEL AND SIDNEY HENDRICKS, DENNIS HORNE, SPINNAKER POINT DEVELOPMENT, INC., PABLO LAND CORPORATION, AND ROCKPORT LAND CORPORATION ("OWNER") (Spinnaker Point Subdivision, formerly known as Baypoint Lagoons Subdivision) Whereas, the CITY and the OWNER entered into a Development Agreement on April 5, 1993, and said Agreement was approved by the City Council on April 5, 1993 by adoption of Ordinance No. 1645, copy attached; and Whereas, the Development Agreement terminates six (6) years from the date of the adoption of the Ordinance approving the said Development Agreement, or April 4, 1999; and Whereas, CITY and OWNER have recently completely resolved a dispute concerning the sharing of the construction costs and right-of-way dedication for an extension of Bellam Boulevard, constructed as part of OWNER's development project; and Whereas, pursuant to the terms of the Bellam Boulevard Extension Settlement Agreement dated October 29, 1997, CITY and OWNER agreed to extend the term of the Development Agreement for an additional two year period, thereby terminating April 4, 2001; and Whereas, Pablo Land Corporation, a California Corporation, and Rockport Land Corporation, a California Corporation, have joined Sidney Hendricks, Dennis Horne, and Spinnaker Point Development, Inc., as owners of the project covered by the aforementioned Development Agreement, and have agreed to be bound thereto along with the original owners; and Whereas, all other findings made by the City Council in adopting the original Development Agreement in Ordinance No. 1645 remain unchanged. 0 THE CITY COUNCIL OF THE CITY OF SAN RAFAEL DOES ORDAIN AS FOLLOWS: DIVISION 1: The MAYOR and the CITY CLERK are hereby authorized to execute, on behalf of the City of San Rafael, an amendment to the Development Agreement dated April 5, 1993, among the City of San Rafael and Sidney Hendricks, Dennis Horne, Spinnaker Point Development, Inc., a California Corporation, Pablo Land Corporation, a California corporation, and Rockport Land Corporation, a California Corporation (collectively OWNER herein) to extend the term of said Agreement for an additional two years, terminating on April 4, 2001. A copy of the Amendment to the Agreement is attached hereto and by this reference made a part hereof. All other terms and conditions of the Agreement remain in full force and effect. DIVISION 2: If any section, subsection, sentence, clause or phrase of this Ordinance is for any reason held to be invalid, such decision shall not affect the validity of the remaining portions of this Ordinance. The Council hereby declares that it would have adopted the Ordinance and each section, subsection, sentence, clause or phrase thereof, irrespective of the fact that any one or more sections, subsections, sentences, clauses or phrases be declared invalid. DIVISION 3: This Ordinance shall be published once in full before its final passage in a newspaper of general circulation, published, and circulated in the City of San Rafael, and shall be in full force and effect thirty (30) days after its final passage. DIVISION 4: A summary of this Ordinance shall be published and a certified copy of the full text of this Ordinance shall be posted in the office of the City Clerk at least five (5) days prior to the Council 2 meeting at which it is adopted. This Ordinance shall be in full force and effect thirty (30) days after its passage, and the summary of this Ordinance shall be published within fifteen (15) days after the adoption, together with the names of the Councilmembers voting for or against the same, in a newspaper of general circulation published and circulated in the City of San Rafael, County of Marin, State of California. Within fifteen (15) days after adoption, the City Clerk shall also post in the office of the City Clerk, a certified copy of the full text of this Ordinance along with the names of those Councilmembers voting for or against this Ordinance. eXLIB3qXRT /J$iRO, Mayor ATTEST: A- JEANNE M. LEONINIClerk The foregoing Ordinance No. 1720 was read and introduced at a Regular Meeting of the City Council of the City of San Rafael, held on the 17" day of February, 1998, and a summary of said Ordinance was ordered passed to print by the following vote, to wit: AYES: Councilmembers NOES: Councilmembers ABSENT: Councilmembers and will come up for adoption as an Ordinance of the City of San Rafael at a Regular Meeting of the Council to be held on the 2"a day of March, 1998. JEA6NE M. LEON( M, City Clerk 3 RECORDING REQUESTED L l: WHEN RECORDED MAIL TO: Com/ i y OF t /r/,! 98-020532 THIS SPACE FOR RECORDERS USE ONLY NOTE: Ordinance No. 1720, adopted on March 2, 1998, authorizing the execution of Amendment to Development Agreement between the City of San Rafael and Sidney Hendricks, Dennis Horne, Spinnaker Point Development, Inc., Pablo Land Corporation, and Rockport Land Corporation ("Owner") (Spinnaker Point Subdivision, formerly known as Baypoint Lagoons Subdivision), is attached to AMENDMENT TO DEVELOPMENT AGREEMENT. THIS PAGE IS ADDED TO PROVIDE ADEQUATE SPACE FOR RECORDING INFORMATION ADDITIONAL RECORDING FEE APPLIES 98-023532 98-023532 i98-023532 Vo 023532'1 Rec Fee .00 I Total .00 Recorded I Official Records I County of I MARIN I JOAN C THAYER I Recorder I 11:25am 10 -Apr -96 I CS 22 AMENDMENT TO DEVELOPMENT AGREEMENT This amendment to the Development Agreement dated April 5, 1993 is made and entered into this seventeenth day of February, 1998, by and between the CITY OF SAN RAFAEL (hereinafter CITY), and Sidney Hendricks, Dennis Horne, Spinnaker Point Development, Inc., a California Corporation, Pablo Land Corporation, a California Corporation, and Rockport Land Corporation, a California Corporation (collectively OWNER herein). RECITALS Whereas, the CITY and the OWNER entered into a Development Agreement on April 5, 1993, and said agreement was approved by the City Council on April 5, 1993 by adoption of Ordinance No. 1645, copy attached; and Whereas, the Development Agreement contains a termination date of April 4, 1999; and Whereas, CITY and OWNER have resolved a dispute concerning the sharing of the construction costs and right-of-way dedication for an extension of Bellam Boulevard, constructed as part of OWNER's development project; and Whereas, pursuant to the terms of the Bellam Boulevard Extension Settlement Agreement dated October 29, 1997, CITY and OWNER agreed to extend the term of the Development Agreement for an additional two-year period, terminating April 4, 2001; and Whereas, Pablo Land Corporation, a California Corporation, and Rockport Land Corporation, a California Corporation, have joined Sidney Hendricks, Dennis Horne, and Spinnaker Point Development, Inc., as owners of the project covered by the aforementioned Development Agreement, and have agreed to be bound thereto along with the original owners; and rT � Whereas, all other findings made by the City Council in approving the original Development Agreement in Ordinance No. 1645 remain unchanged. AGREEMENT NOW, THEREFORE, the parties hereby agree as follows: 1. The introductory paragraph of the Development Agreement is amended to add "Pablo Land Corporation, a California Corporation, and Rockport Land Corporation, a California Corporation", to the parties listed as "collectively `Owner"'. 2. Section 2.2 of the Development Agreement, entitled "Tenn of This Agreement" shall be deleted and replaced with the following language: "2.2 Term of This Agreement. The Term of this Agreement shall commence on the effective date of the original Enacting Ordinance (#1645) and shall terminate eight (8) years thereafter, unless sooner terminated or extended as hereinafter provided." 2. All other terms and provisions of the original Development Agreement shall remain in full force and effect. The parties below named have executed this Amendment to Development Agreement as of the dates written below. CITY OF SAN RAFAEL BEI(T J. BO , Mayor r / DATED: /ao % $ DATED: .312- 9�lgrS— I 1 ATTEST: M. LEONC , City Clerk K gNNIHORNE DATED: 3 21 C Awl CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT State of California County of Marin ss. On March 30, 1998 ,before me, Nancy Eurman, Notary Public Date Name and Title of Officer (e.g., 'Jane Doe, Notary Public' personally appeared Albert J. Boro Name(s) of Signer(s) ,impersonally known to me ❑ proved to me on the basis of satisfactory evidence to be the persons whose name* is/ate subscribed to the within instrument and acknowledged to me that he/sig/tfj%y executed the same in his/ber/their authorized capacity(ioe), and that by his/her/their NANCY EURMAN Dsignature(r+on the instrument the person((}, or COMM. #1086576 NOTARY PUBLIC -CALIFORNIA 0 the entity upon behalf of which the person r�vwlN couNfY ae acted, executed the instrument. 1 .. .. .. � ..y Comm. � �Expires � F„ 4v00 v WITNESS my hand and official seal. Place Notary Seal Above Signature of Notary Pu Iib c IV\ OPTIONAL Though the information below is not required b law, it may g q y y prove valuable to persons relying on the document and could prevent fraudulent removal and reattachment of this form to another document. Description of Attached Document Title or Type of Document: Amendment to Devel odment Ayreepent ( between CSR Sidney Hendricks, Dennis Horne, Spinnaker loin evel., Inc., Pablo Land: Corp. & Document Date: February 17, 1998 Number of Pages: Twenty (20) Rockport Land ?Corp.} Signer(s) Other Than Named Above: Sidney Hendricks, Dennis Horne, Gary Hendricks Capacity(les) Claimed by Signer Signer's Name: Albert J. BorO C%( Individual ' Top of thumb here ❑ Corporate Officer — Title(s): ❑ Partner — ❑ Limited ❑ General ❑ Attorney in Fact ❑ Trustee ❑ Guardian or Conservator ❑ Other: Signer Is Representing: City of San Rafael as Mayor D I 01997 National Notary Association • 9350 De Soto Ave., P.O. Box 2402 • Chatsworth, CA 91313-2402 Prod. No. 5907 Reorder. Call Toll -Free 1-800-876-6827 APPROVED AS TO F RM & CONTENT: SPINNAKER POINT DEVELOPMENT, INC., A California Corporation GARY T. fUbQfIIANTI, C' 76Attome y (Printed ne) 1,t k� S 2 Its: V -P DATED: PABLO LAND CORPORATION, A California Corporation By: (Pried Name) ilk "L 5 tc U• 2_ Its: DATED: �17 W6- ROCKPORT LAND CORPORATION, A California Cbrooration By: f . (Printed 4-531 Its: DATED: 512'1- / Y APPROVED AS TO FORM & CONTENT: NEIL SORENSEN, Attorney for Owners CALIFORNIA ALL-PURPOSe ACKNOWLEDGMENT State of California County of Marin On March 27, 1998 before me, Toni L. F.sposti, Notary Public Date Name and Title of Officer (e.g., "Jane Doe, Notary Public') personally appeared Dennis R. Horne and Gary Hendricks Name(s) of Signer(s) R#ersonally known to me – OR – ❑ proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), • TONI L. ESPOSTI or the entity upon behalf of which the person(s) acted, rn _• Comm. # 1153996 In executed the instrument. NOTARY PUBLIC -CALIFORNIA .. f Marin County w` My Comm. Expires Sept.26,2001 { WITNESS my hand and official seal. Signalure`bf Nota We OPTIONAL Though the information below is not required by law, it may prove valuable to persons relying on the document and could prevent fraudulent removal and reattachment of this form to another document. Description of Attached Document Title or Type of Document: Amendment to Development Agreement Document Date: Signer(s) Other Than Named Above: Capacity(ies) Claimed by Signer(s) Signer's Name: Signer's Name: ❑ Individual ❑ ❑ Corporate Officer ❑ Title(s): i ❑ Partner — ❑ Limited ❑ General ❑ El Attorney -in -Fact El i ❑ Trustee _ _ ❑ ❑ Guardian or Conservator ❑ 1 ❑ Other: Top of thumb here ❑ Number of Pages: Individual Corporate Officer Title(s): Partner — ❑ Limited ❑ General Attorney -in -Fact Trustee Guardian or Conservator Other: Signer Is Representing: Signer Is Representing: cur ----- 01994 National Notary Association • 8236 Remmet Ave., P.O. Box 7184 • Canoga Park, CA 91309-7184 Prod. No. 5907 -.I Top of thumb here Reorder: Call Toll -Free 1-800-876-6827 ORDINANCE NO. 1720 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF SAN RAFAEL AUTHORIZING THE EXECUTION OF AN AMENDMENT TO A DEVELOPMENT AGREEMENT BETWEEN THE CITY OF SAN RAFAEL AND SIDNEY HENDRICKS, DENNIS HORNE, SPINNAKER POINT DEVELOPMENT, INC., PABLO LAND CORPORATION, AND ROCKPORT LAND CORPORATION ("OWNER") (Spinnaker Point Subdivision, formerly known as Baypoint Lagoons Subdivision) Whereas, the CITY and the OWNER entered into a Development Agreement on April 5, 1993, and said Agreement was approved by the City Council on April 5, 1993 by adoption of Ordinance No. 1645, copy attached; and Whereas, the Development Agreement terminates six (6) years from the date of the adoption of the Ordinance approving the said Development Agreement, or April 4, 1999; and Whereas, CITY and OWNER have recently completely resolved a dispute concerning the sharing of the construction costs and right-of-way dedication for an extension of Bellam Boulevard, constructed as part of OWNER's development project; and Whereas, pursuant to the terms of the Bellam Boulevard Extension Settlement Agreement dated October 29, 1997, CITY and OWNER agreed to extend the term of the Development Agreement for an additional two year period, thereby terminating April 4, 2001; and Whereas, Pablo Land Corporation, a California Corporation, and Rockport Land Corporation, a California Corporation, have joined Sidney Hendricks, Dennis Horne, and Spinnaker Point Development, Inc., as owners of the project covered by the aforementioned Development Agreement, and have agreed to be bound thereto along with the original owners; and Whereas, all other findings made by the City Council in adopting the original Development Agreement in Ordinance No. 1645 remain unchanged. THE CITY COUNCIL OF THE CITY OF SAN RAFAEL DOES ORDAIN AS FOLLOWS: DIVISION 1: The MAYOR and the CITY CLERK are hereby authorized to execute, on behalf of the City of San Rafael, an amendment to the Development Agreement dated April 5, 1993, among the City of San Rafael and Sidney Hendricks, Dennis Horne, Spinnaker Point Development, Inc., a California Corporation, Pablo Land Corporation, a California corporation, and Rockport Land Corporation, a California Corporation (collectively OWNER herein) to extend the term of said Agreement for an additional two years, terminating on April 4, 2001. A copy of the Amendment to the Agreement is attached hereto and by this reference made a part hereof. All other terms and conditions of the Agreement remain in full force and effect. DIVISION 2: If any section, subsection, sentence, clause or phrase of this Ordinance is for any reason held to be invalid, such decision shall not affect the validity of the remaining portions of this Ordinance. The Council hereby declares that it would have adopted the Ordinance and each section, subsection, sentence, clause or phrase thereof, irrespective of the fact that any one or more sections, subsections, sentences, clauses or phrases be declared invalid. DIVISION 3: This Ordinance shall be published once in full before its final passage in a newspaper of general circulation, published, and circulated in the City of San Rafael, and shall be in full force and effect thirty (30) days after its final passage. 2 ALB T J.BOayor ATTEST: JEAME M. LEONCINI, City Clerk The foregoing Ordinance No. 1720 was read and introduced at a Regular Meeting of the City Council of the City of San Rafael, held on the 17w day of February, 1998 and ordered passed to print by the following vote, to wit: AYES: Councilmembers: COHEN, HELLER, MILLER, PHILLIPS & MAYOR BORO NOES: Councilmembers: NONE ABSENT: Councilmembers: NONE and will come up for adoption as an Ordinance of the City of San Rafael at a Regular Meeting of the Council to be held on the 2"d day of March, 1998. JE M. LEONCINI, City Clerk 3 ORDINANCE NO. 1645 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF SAN RAFAEL APPROVING A DEVELOPMENT AGREEMENT FOR BAYPOINT LAGOONS THE COUNCIL OF THE CITY OF SAN RAFAEL DO ORDAIN AS FOLLOWS: DIVISION 1. Findings. A. California Government Code sections 65864 - 65869.5 authorizes cities to enter into binding development agreements as therein provided. B. Sidney Hendricks, Dennis Horne and Spinnaker Point Development, Inc., a California Corporation (collectively "Owner") has requested that the City of San Rafael (the "City") enter into a "Development Agreement with respect to the real property (the "Property") commonly known as Bay Point Lagoons which is more particularly described in Exhibit "H" to the said Development Agreement" and proceedings have been taken in accordance with the City's rules and regulations for the consideration of development agreements. C. owner has the requisite legal interest in the property to enable the City to enter into the Development Agreement with Owner. D. The Planning Commission of the City has reviewed the proposed Development Agreement and has held a public hearing on the same on February 23, 1993. The Planning Commission voted unanimously to recommend approval of the Development Agreement by the City Council. E. The City Council of the City of San Rafael has held public hearings on the proposed Development Agreement, and notice of intention to consider adoption of the Development Agreement has been given as required by law. F. The City Council finds that the Development Agreement is consistent with the General Plan of the City which is currently in effect and with the approved Master Plan for the property. G. The City Council further finds that each and every one of the facts and statements set forth in the Recitals of the 1 Development Agreement are true and correct. The text of the proposed Development Agreement is attached to the minutes of the Planning Commission of February 23, 1993, and is filed in the office of the City Clerk of the City of San Rafael and is available for public review therein. Said facts and statements are hereby incorporated in this ordinance by this reference as fully and completely as if the same had been set forth at length herein. DIVISION 2. ADDroval. The City Council of the City of San Rafael approves the Development Agreement for Bay Point Lagoons, a copy of which is on file in the office of the City Clerk, and the Mayor is authorized to execute and enter into said Development Agreement on behalf of the City. DIVISION 3. If any section, subsection, sentence, clause, or phrase of this Ordinance is for any reason held to be invalid, such decision shall not affect the validity of the remaining portions of this Ordinance. The Council hereby declares.that it would have adopted the Ordinance and each section, subsection, sentence, clause, or phrase thereof, irrespective of the fact that any one or more section, subsection, sentence, clause or phrase be declared invalid. DIVISION 4. This Ordinance shall be published once in full before its final passage in a newspaper of general circulation, published and circulated in the City of San Rafael, and shall be in full force and effect thirty (30) days after its final passage. 0"n K B R J R, Mayor-' ATTEST: JE6NNE M. LEONCI City Clerk The foregoing Charter Ordinance No. 1645 was read and introduced at a Regular Meeting of the City Council of the City of San Rafael held on the 15th day of March, 1993, and ordered passed to print by the following vote to wit: AYES: COUNCILMEMBERS: Breiner, Cohen, Shippey, Thayer & Mayor Boro NOES: COUNCILMEMBERS: None ABSENT: COUNCILMEMBERS: None and will come up for adoption as an Ordinance of the City of San Rafael at a Regular Meeting of the Council to be held on the 5th day of April 1993. JEJI Ng t AC�,C 1ty Clerk 3 RECORDING REQUESTED BY AND WHEN RECORDED, RETURN TO: `c' City of San Rafael Planning Dept. 1400 Fifth Avenue San Rafael, California 94901 Attn: Mr. Robert Pendoley .t DEVELOPMENT AGREEMENT (Baypoint Lagoons) This Development Agreement is entered into by and between Sidney Hendricks, Dennis Horne, and Spinnaker Point Development, Inc., a California corporation (collectively "Owner"), and the City of San Rafael ( "the City") , as of the 5th day of April , 1993. RECITALS A. The state Development Agreement Law authorizes the City to enter into development agreements in connection with the development of real property within its jurisdiction by persons with a requisite legal or equitable interest in the real property which is the subject of a development agreement. The State Development Agreement Law also authorizes the City to enact, by resolution or ordinance, procedures -or requirements for the consideration of development agreements, to meet the goals of the State Development Agreement Law, to conserve. resources, reduce development costs to the consumer and encourage investment in and a commitment to comprehensive planning to maximize the efficient utilization of resources at the least economic cost to the general public. B. The City has enacted City Council Resolution number 6089 establishing the procedures and requirement for the consideration of this Agreement thereunder pursuant to the State Development Agreement Law. C. The City has determined that the Project is a development for which a development agreement is appropriate in order to achieve the goals and objectives of the City's land use planning policies and to provide appropriate assurances to Owner regarding its ability to complete the Project. This will in turn eliminate uncertainty in planning for and secure orderly development of the Project, assure progressive installation of necessary improvements and provision for public services appropriate to each stage of development of the Project, and COPY 1_ otherwise achieve the goals and purposes of which the Development Agreement Resolution was enacted by the City. In exchange for these benefits to the City, Owner desires to receive the assurance that it may proceed with the Project in accordance with the Existing Ordinances, subject to the terms and conditions contained in this Development Agreement. D. In order to effectuate the foregoing, the parties desire to enter into this Development Agreement. Owner is the owner of the Property and therefore satisfies the requirements of Government Code Section 65865 and is entitled to file the application for and enter into this Development Agreement. E. The City has adopted Ordinance No. 1645 approving its entry into this Agreement. The findings of said Ordinance No. 1645 are incorporated in this Development Agreement as recitals by this reference. NOW, THEREFORE, pursuant to the authority contained in Government Code sections 65864 et seq., and in consideration of the mutual covenants and promises of the parties herein contained, the parties agree as follows: 1. Definitions 1.1 Defined Terms. Each reference in this Agreement to any of the following terms shall have the meaning set forth below for each such term. 1.2 Approvals. All amendments to any Ordinances heretofore or hereafter enacted, necessary or appropriate to confer the requisite lawful right of Owner to develop the Project, and any and all permits or approvals of any kind or character required under the Ordinances in order to develop the Project. - 1.3 Develor)ment Aareement Resolution. The City's Resolution No. 6089 establishing the procedures and requirements for the consideration of this Development Agreement thereunder pursuant to the State Development Agreement Law. 1.4 Enactinci Oruinance. Ordinance No. 1645 , enacted by the City Council on April 5, 1993 approving this Agreement. 1.5 Exactions. All exactions, in lieu fees or payments, dedication or reservation requirements, obligations for on- or off-site improvements or construction requirements for public.improvements facilities, or services called for in connection with the development of or construction on property under the Ordinances, whether such exactions constitute subdivision improvements, mitigation measures in connection with environmental review of any project, or impositions made under -2- Fo her Ordinances or in order to make a project approval consistent with the Cityfs laws or procedures. 1.6 Existina Annrovals. Those Approvals for the Project obtained or enacted by the City as of the date hereof. The following specific approvals by Owner constitute the Existing Approvals: (a) Zoning Approvals (Ordinance No. 1562, adopted May 1, 1989) (attached as Exhibit A); (b) Environmental and Design Review for Phase I, Permit No. E.D. 88-101 (attached as Exhibit B); (c) Use Permit for Phase I, U.P. No. 88-100 (attached as Exhibit C); (d) Final Subdivision Map for Phase I, F.S. No. 89-3 (attached as Exhibit D); (e) Environmental and Design Review for Phase II, Permit No. E.D. 91-15 (attached as Exhibit E); (f) Use Permit for Phase II, U.P. No. 91-9 (attached as Exhibit F); (g) Tentative Subdivision Map for Phase II, T. S. No. 91-2 (attached as Exhibit G); (h) Priority Projects Procedure approval for Spinnaker on the Bay Phase II, P.P.P. No. 91-5. 1.7 Existing ordinances. The Ordinances and Development Policies of the City that were in effect on April 1, 1991. 1.8 ordinances. The ordinances, resolutions, codes, rules, regulations and official policies of the City -of San Rafael governing the permitted uses of land, governing density, and governing design, improvement and construction standards and specifications, applicable to the development of the Property. 1.9 Person. Any person, partnership, corporation, municipal corporation, governmental board, body, agency or representative, or other form of organization or entity. 1.10 Prosect. The residential development and associated amenities, and on- and off-site improvements, contemplated by or embodied within the Existing Approvals for the -3- Baypoint Lagoons Phase I and Phase.II development project as the same may hereafter be further refined, enhanced or modified pursuant to the provisions of this Agreement. 1.11 Property. The real property described in Exhibi ,ie hereto on which Owner intends to develop the Project. 2. Effective Date: Term. 2.1 Effective Date. This Agreement shall be dated as of the date the Enacting Ordinance was adopted by the City as specified in the Recitals above and the obligations of the parties hereunder shall be effective upon execution by both parties hereto. After the Enacting Ordinance takes effect pursuant to Government Code Section 36937, and not later than ten (10) days thereafter, the City and Owner shall execute and acknowledge this Agreement, and thereafter, the City Clerk shall cause this Agreement to be recorded in the Official Records of the County of Marin, State of California. The costs of recording this Agreement shall be borne by Owner. To the extent this Agreement modifies any Existing Approval, then such modification shall constitute an Approval pursuant to the Existing Ordinances as if separately enacted thereunder. 2.2 Term of This Agreement. The Term of this Agreement shall commence on the effective date of the Enacting Ordinance and shall terminate six (6) years thereafter, unless sooner terminated or extended as hereinafter provided. 2.3 Term of Other ADnrovals. The Existing Approvals and any and all Approvals granted by the City after the date hereof shall remain valid for the term of this Agreement. 3. Development of Prolect. 3.1 Prosect. Owner shall have the right to develop the Project on the Property in accordance with the terms and conditions of this Agreement, and City shall have the right to control development of the property in accordance with the provisions of this Agreement. Except as otherwise specified in this Agreement, the Existing Approvals and the Existing Ordinances shall control the overall design, developyttent an., construction of the Project, and all on- and off-site improvements and appurtenances in connection therewith, in the manner specified in this Agreement, including, without limitation, all mitigation measures required. 3.2 Densitv. In accordance with current zoning, the City shall allow an increase of six additional market rate units in the subdivision map of Phase II of the Project, from 130 units to 136 units, and will fast-track any needed planning applications Owner must submit for that purpose. -4- k 3.3 Below Market Rate Units,. The parties agree that Owner is required to construct 48 below market rate units ("BMR") in Phases I and II of the Project, which includes the 5 BMR units reflected in the Agreement to Provide Below Market Housing dated April 1989. The City agrees that construction of these 48 BMR units may be deferred until only 96 units, whether BMR or market rate, remain unbuilt in Phase I and Phase II of the Project. At that time, no further occupancy permits will be issued by the City for any market rate unit(s) except to the extent that BMR occupancy permits have been issued by the City. In other words, for each BMR occupancy permit issued by the City, Owner may apply for one market rate occupancy permit. Owner agrees that it will adopt and implement a procedure whereby City employees are granted preference in purchasing units in the Project. 3.4 Transfer of BMR Units,. If Owner should sell any or all of the 48 BMR units in the Project, or the property approved for construction of such BMR units, to a non-profit housing provider acceptable to the City, the construction of the BMR units by such non-profit organization shall be counted as partial performance of Owner's obligation to construct BMR units in the Project. The City shall give Owner credit for one BMR unit against its 48 BMR unit requirement for each occupancy permit issued to the non-profit organization for a BMR unit.' The City agrees to fast track all planning applications required to permit the non-profit organization referred to herein to proceed with construction of BMR units on that portion of the Project where the BMR units are approved for siting. A sale by Owner of all or part of the 48 BMR units referenced herein shall not relieve Owner of any of the restrictions. or obligations on the portion of the Project not sold to the non -project organization nor of the obligation to construct all 48 HMR units. Owner agrees that the City is entitled to compel specific performance from Owner of the obligations relating to the construction of said 48 BMR units. If Owner should enter into a sale of all or part of the 48 BMR units as stated above, the City shall place no additional restrictions or obligations on the portion of the Project retained by Owner based solely on the sale of the BMR units to the non-profit organization and its development of those BMR units. 3.5 L,ZDl_,ca J1C� Ordinances and A-p-orovals. LA a Ordinances which shall govern the development of the Property hereunder and all subsequent Approvals with respect thereto, including the permitted uses of the Property and the density, design, improvement and construction standards and specifications applicable to development of the Property shall be the Existing Ordinances. No subsequent change in general plan, zoning ordinance, or other plan, policy or procedure enacted by the City subsequent to the execution of this Agreement shall apply to, prohibit, or modify the terms of this Agreement during the term of this Agreement. Nothing herein, however, shall prevent the City, in subsequent actions applicable to the Property, from -5- applying new Ordinances, not inconsistent or in conflict with the Existing Ordinances or the intent, purposes or any of the terms, standards or conditions of this Agreement, and which do not materially interfere with the development of the Property for the uses, the rate of development, and to the height, density, and intensity set forth herein or in the exhibits hereto. 3.6 Changes in Law. In the event that state or federal laws or regulations, enacted after the effective date of the Enacting Ordinance, prevent or preclude compliance with one or more provisions of this Agreement, such provisions of this Agreement shall automatically be suspended or modified as may be necessary to comply with such state or federal laws or regulations. 3.7 Governina Aoorovals. Except as otherwise specified in this Agreement, the permitted uses of the Property, the density, the maximum height, size, setbacks and lot coverages of proposed buildings, provisions for reservation or dedication of land for public purposes and the location of public improvements and other terms and conditions of development applicable to the Property shall be those set forth in the Existing Approvals. 4. Miscellaneous 4.1 Severabilitv. Invalidation of any of the provisions contained in this Agreement, or of the application thereof to any Person, by judgment or court order shall in no way affect any of the other provisions hereof or the application thereof to any other Person or circumstance and the same shall remain in full force and effect, unless enforcement of this Agreement as so invalidated would be unreasonable or grossly inequitable under all the circumstances or would frustrate the purposes of this Agreement. 4.2 Exhibits. The Exhibits hereto are deemed incorporated into this Agreement in their entirety by reference thereto. 4.3 Entire Aareement. This written Agreement, the Exhibits attached hereto and the Settlement Agreement to —1,4ch this Agreement is attached contain all the representations and the entire agreement between the parties with respect to the subject matter hereof. Except as attached hereto, any prior correspondence, agreements, warranties or representations with respect to the subject matter hereof are superseded in total by the Settlement Agreement, this Agreement and the Exhibits hereto. 4.4 - Further Assurances. Covenant to Sicm Documents. Each party covenants, on behalf of itself and its successors,, heirs and assigns, to take all actions and do all things, and to execute, with acknowledgment or affidavit if required, any and raall documents and writings, that may be necessary or proper to chieve the purposes and objectives of this Agreement. 4.5 Governi.nv Law. This Agreement, and the rights and obligations of the parties, shall be governed by and interpreted in accordance with the laws of the State of California. 4.6 Specific Performance. The parties acknowledge that it is and will be impossible to measure in money any or all damages which may result by reason of and failure on the part of a party to perform any or all of its obligations under this Agreement. - If, therefore, the City or Owner, or any of their respective successors or assigns shall institute any action or proceeding to enforce the provisions of this Agreement, the party against whom such action or proceeding is brought shall and hereby does waive the claim or defense that such person or entity has an adequate remedy at law, and such others against whom such action or proceeding is brought shall not urge or be heard to urge in any such action or proceeding the claim or defense that such remedy at law exists. 4.7 Attornevs' Fees. Should any party hereto be required to commence litigation against any other party for breach of this Development Agreement or to otherwise enforce any terms, conditions, or promises set forth herein, then the prevailing party in said litigation shall be entitled to recover, in addition to any other damages awarded, said party's reasonable attorneys' fees, costs, and expenses incurred in said litigation. 4.8 Binding Effect. This Development Agreement shall bind all heirs, successors, and assigns of the parties hereto, and each of them. It shall inure to the benefit of each party hereto, their divisions, representatives, assigns, agents, officers, directors, and employees. 4.9 Separate Counterparts. For convenience, this Agreement may be executed and acknowledged in separate counterparts which, when attached to this Agreement, shall constitute this as one complete Agreement. -7- 11 The parties below named have executed this Development Agreement as of the date written below. r/ Dated: \�t Dated: IS HORNE SPINNAKE Z=PO,INNT DEVELOPMENT s / N e Its: (/" Dated: i APPROVED AS TO FORM / AND CONTENT: y�-BREKHUS, WILLIAMS, WESTER & HALL, j eter B. Brekhus Attorneys for Plaintiffs -8- J State of California ) County of Marin ) On &' i 99 q before me, A. M. MARCOTTE a Nota��.7'yY Public in and for thsaid County and State, personally appeared FNNi:c hA)Nec- p% nsrsti_1•--k4iGR%% to :-a (or proved to me on the basis of satisfactory evidence) to be the person Fs) whose name(s) is/ar- subscribed to the within instrument and acknowledged to me that he executed the same in his/ authorized capacity 4 -Gs , and that by his h-wpehe&-= signature ¢ the instrument the person(), or the entity upon behalf of which the person(a) acted, executed the instrument. . WITNESS my hand and official seal. eo A. M. MARCOTTE , NOTARY PUBLIC My commission expires 11/17/95 State of California ) County of Marin ) OFFICIAL SEAL A. M. MARCOTTE Notary FVb9c-Co1Jfoml0 MARIN COUNTY My ComrnUon Expires . November 17, 1995 On May 6, 1993 before me, A. M. MARCOTTE, a Notary Public in and for the said County and State, personally appeared SIDNEY HENDRICKS Pena==7�n==�=mg (or proved to me on the basis of satisfactory evidence) to be the person() whose name(s) is/ate subscribed to the within instrument and acknowledged to me that he/shey=bhey executed the same in his/ her�he=kr authorized capacity(im=s) , and that by his/ir-eryeir signature() on the instrument the person(s=), or the entity upon behalf of which the person(s) acted, executed the instrument. WITNESS my hand and official seal. (.L... '7/ /C hP A. M. MAR NOTARY PUBLIC My commission expires 11/17/95 9 , OFFICIAL SEAL. A. M. MARCOTTE Notary Puble-CaUbmla MARIN COUNTY My Comrn tcn Expires November 17, 1995 The parties below named have executed this Development Agreement as of the date written below. APPROVED AS TO FORM AND CONTENT: - /jj/M-4' 1 1 Gary T. Ragghianti i City Attorney CITY OF SAN RAFAEL � 1 By: / Albert J,' Boro, Mayor / Dated: `"11 Attest: By: h Jeanne Leoncini, City Clerk Dated: *130 173 I State of California ) County of Marin ) On April 30, 1993 before me, A. M. MARCOTTE, a Notary Public in and for the said County and State, personally appeared Albert J. Boro, Mavor of the gi_ty Qf Aan Rafael, personally known to �me �(or rr9-Ved tE a :-i :casae) to be the person(e) whose name (s) is/awe subscribed to the within instrument and acknowledged to me that he/=heit--'._j executed the same in his/ hei=/the _ authorized capacity(! -es) , and that by his/ 4tkair signature(s) on the instrument the person(s), or the entity upon behalf of which the person() acted, executed the instrument. WITNESS my hand and official seal. Q. A. M"MARC TE, NOTARY PUBLIC My Commission expires 11/17/95 4007524.4 - 10 - _ _ ,'". ,+ • OFFICIAL SEAL ' ' A. M. MARCOTTE ' Notary Public -California MARIN COUNTY , My Commission Expires . ' November 17. 1995 .