HomeMy WebLinkAboutOrdinance 440 CERTIFICATION
I, Marcia McClure Torgerson, C.M.C., City Clerk of the City of Atascadero, hereby
certify that the foregoing is a true and correct copy of Ordinance No. 440, adopted by the
Atascadero City Council at a regular meeting thereof held on March 23, 2004, and that it has been
duly published pursuant to State Law.
DATED:
Marcia McClure Torgerson,C.M.C.
City Clerk
City of Atascadero, California
ORDINANCE NO. 440
AN ORDINANCE OF THE ATASCADERO CITY COUNCIL
APPROVING A DEVELOPMENT AGREEMENT 2004-0001
OR A SUBSTANTIALLY SIMILAR AGREEMENT
(Development Agreement #2004-0001 / Gearhart, Molina)
WHEREAS, the Atascadero City Council has previously approved a process for the
evaluation and potential approval of development agreements; and
WHEREAS, the applicant for the above referenced development agreement has
followed the established procedures; and,
WHEREAS, Planning Commission has reviewed the entire project and resolved to
recommend approval to the City Council of the City of Atascadero; and,
WHEREAS, in order for the project to proceed, a development agreement must be
adopted by ordinance; and,
WHEREAS, a development agreement in substantially the same format as reviewed
by the City Council will ensure that the project proceeds in accordance with all laws of the
State of California and all ordinances of the City of Atascadero, and provide certainty for the
applicant in proceeding with the project; and,
WHEREAS, the City Council has determined that it is in the best interest of the City
to enact an ordinance to approve a development agreement in this case; and,
WHEREAS, the laws and regulations relating to the preparation and public notice of
environmental documents, as set forth in the State and local guidelines for implementation of
the California Environmental Quality Act(CEQA) have been adhered to; and,
WHEREAS, a timely and properly noticed Public Hearing upon the subject Zone
Change application was held by the City Council of the City of Atascadero at which hearing
evidence, oral and documentary, was admitted on behalf of said development agreement;
and,
NOW, THEREFORE, the City Council hereby resolves to take the following
actions:
SECTION 1. Findings for Approval of the Development Agreement. The City
Council finds as follows:
1. The proposed development agreement is in the public interest.
2. The proposed development agreement is in conformance with the adopted
General Plan Goals,-Policies,_and Programs_and__the overall__intent of-the
General Plan.
City of Atascadero
Ordinance No.440
Page 2 of 2
3. The proposed development agreement is compatible with existing
development, neighborhoods and the environment.
4. The proposed development agreement will not create any new significant
and unavoidable impacts to traffic, infrastructure, or public service
impacts.
5. The proposed amendment is consistent with adopted General Plan EIR and
mitigation monitoring program.
SECTION 2. Approval. The Atascadero City Council, in a regular session
assembled on March 9, 2004, hereby resolves to introduce for first reading an ordinance that
would approve a development agreement for the Pine Mountain Transfer of Development
Credit program and related developments:
1. Exhibit A: Development Agreement 2004-0001
SECTION 3. Effective Date.
This ordinance shall be effective a 12:01 a.m. on the 31St day after its final passage.
On motion by Council Member O'Malley and seconded by Council Member Clay, the
foregoing Ordinance is hereby adopted in its entirety by the following roll call vote:
AYES: Council Members Clay, O'Malley, Pacas, Scalise and Mayor Luna
NOES: None
ABSENT: None
ADOPTED: March 23, 2004
CITYATASCAD
By:
Dr. George Luna, Mayor
ATTEST:
Marcia McClure Torgerson, C.M.C., City Cl k
AP OVED AST FO
Roy anley, diiy Att ey
AGREEMENT BY AND BEWTEEN THE CITY OF ATASCADERO
AND GEORGE MOLINA RELATING TO TWENTY-EIGHT ACRES ON PINE
MOUNTAIN AND THREE PROPOSED DEVELOPMENT SITES, NAMELY
COROMAR, FERROCARIL AND COLIMA
This Agreement, ("Agreement") is entered into on the day of
, 2004, by and between the City of Atascadero, ("City") a municipal
corporation, and George Molina, ("Molina") an individual, pursuant to Section
65864 et seq. of the Government Code of the State of California. Molina and
City are, from time to time, hereinafter referred to individually as a party and
collectively as the parties. This Agreement is entered into on the basis of the
following facts, understandings and intentions of the parties.
RECITALS
(a) In order to strengthen the public land use planning process, to
encourage private participation in the process, to reduce the economic risk of
development and to reduce the waste of resources, the Legislature adopted the
Development Agreement Statutes (Section 65864, et seq.' of the Government
Code).
(b) The Development Agreement Law permits cities and counties to
contract with private interests for their mutual benefit in a manner not otherwise
available to the contracting parties. Such agreements, as authorized by the
Development Agreement Law, can assure property developers they may
proceed with projects assured that approvals granted by public agencies will not
change during the period of development of their projects. Cities and counties
are equally assured that costly infrastructure such as roads, sewers, schools, fire
protection facilities, etc. will be available at the time development projects come
on line.
, (c) The subject of this Agreement is that certain parcel of land
commonly known as Pine Mountain, A.P.N. 028-231-003 and other parcels of
land located on Ferrocaril Road known as the De Anza Estates, Coromar Avenue
and Colima in the City of Atascadero. The parcels of real property are more
particularly described herein on Exhibit "A, which exhibit is included by this
reference as though fully set forth at this point.
(d) As further described below, Molina and City ultimately seek to
secure through various planning mechanisms and perhaps a subsequent
Development Agreement, an enforceable arrangement by which Molina shall be
allowed to develop on the Coromar property, Ferrocaril Road-Deanza property
and on the Colima property. In exchange for such allowance to Molina, Molina
shall deed the Pine Mountain property to the City free and clear of all liens and
encumbrances. The means of attaining the aforementioned objectives and the
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public benefit to be received as a result of development of the Project through
this Agreement shall provide for:
(1) A mix of single-family residential opportunities;
(2) Additional recreational opportunities, with the acquisition of
the Pine Mountain property as public property;
(3) A solid residential base to support the financing mechanisms
that will be needed to implement the Capital Facilities Plan.
(e) Molina has, or will apply to the City for all environmental and land
use approvals, permits and other entitlements relating to the development of the
project on the various properties. These actions are collectively referred to in this
Agreement as project approvals and include the following:
(1) CEQA Compliance. The project and the project approvals
will be the subject of environmental review required for
CEQA compliance. The information contained in the initial
study prepared for the proposed mitigated negative
declaration 2003-0699, shall be considered by the Planning
Commission and the City Council as part of its consideration
of any of the project approvals.
(2) Zoning/General Plan Amendment. Land use designations
consistent with the General Plan or any General Plan
amendment shall be adopted concurrently with any project
approval.
(3) Project Approvals. The project approvals will include a
Master Plan of Development [CUP 2003-01201] based on
findings and subject to conditions of approval and mitigation
monitoring for Coromar Avenue, a vesting Tentative Trade
Map 2003-0042, based on findings and subject to conditions
of approval and mitigation monitoring for Colima Road, and a
Master Plan of Development Amendment [CUP 2002-0067]
based on findings and subject to conditions of approval and
mitigation monitoring together with a vesting Tentative Tract
Map 2003-0045, based on findings and subject to conditions
of approval and mitigation monitoring for Ferrocaril Road-De
Anza Estates.
(4) Project Description. A development agreement for a transfer
of eight single-family residential lots from Pine Mountain to
two receiver sites under a General Plan Amendment and
Zone Change process. In addition, a site located along
a
Coromar Avenue will receive a land use and zone change to
allow 16 single-family residential lots. The project includes
the following additional actions for each site:
Coromar Avenue: Planned Development Overlay,
Conditional Use Permit, and Tentative Tract Map. Maximum
project entitlement 16 single-family units/lots. In addition, a
zone change for a separate but contiguous single-family
residential property located at 8955 Coromar Avenue for
land use consistency, not subject to the proposed
development agreement.
Colima Road: Tentative Tract Map. Maximum project
entitlement five (5) lots, three (3) of which are transferred
units from the Pine Mountain property plus two (2) lots that
currently exist.
Ferrocaril Road — De Anza Estates: Planned Development
Overlay Amendment, Conditional Use Permit Amendment,
and Tentative Tract Map. Maximum project entitlement:
twenty (20) units, five (5) additional units, all of which are
transferred units from Pine Mountain plus fifteen (15) lots
that currently exist.
Pine Mountain: No additional applications. Maximum project
entitlement: zero (0) units, eight (8) units will be transferred
from the Pine Mountain property leaving no development
credits on the property. The property will be provided to the
City free and clear upon project approval through the
development agreement.
(5) In addition to the project approvals Molina may later
make application for other land use approvals, actions,
agreements, permits or other entitlements necessary or
desirable to the development of the project or subsequent
approvals. This includes, without limitation, subsequent
subdivision maps, site plan approvals, development plan
approvals, use and grading permits, lot line adjustments,
sewer connections, design review, building permits and
certificates of occupancy. Conditions of approval to such
subsequent approval shall also be considered included in
any reference to subsequent approvals or project approvals.
(f) On the City Planning commission considered this
Agreement. On ,2004, the City Council, following a duly noticed and
conducted public hearing, introduced Ordinance Nmlating to the
approval of this Agreement. On I , 2004, the City adopted Ordinance No.
thereby approving this Agreement on behalf of the City. Ordinance No. _
is attached to this Agreement as Exhibit "B."
(g) As used in this Agreement, the phrase "rights and obligations"
means the entirety of the provisions of this Agreement (all the benefits, burdens
and other provisions). Further, the phrase "rights and obligations" is comprised
of the terms "rights" which is used in this Agreement to mean all of the rights and
other benefits of the Agreement, and the term "obligations" which is used in this
Agreement to mean all of the duties, obligations and responsibilities and other
burdens of this Agreement.
(f) Development of the projects in accordance with this Agreement and
any subsequent development agreement will provide for orderly growth
consistent with the goals, policies, and other provisions of the City's General
Plan and, in particular, the goal of the General Plan providing for the City to
seek out opportunities to obtain open space and recreational property.
NOW THEREFORE, in consideration of the promises, covenants, and
provisions set forth herein, the parties agree as follows:
AGREEMENT
ARTICLE 1. GENERAL PROVISIONS.
Section 1.01. Incorporation of Recitals. The preamble, the recitals and
all defined terms set forth in both are hereby incorporated into this Agreement as
though set forth herein in full.
Section 1.02. Covenants. The provisions of this Agreement shall
constitute covenants and/or servitudes which shall run with the land comprising
the project sites and the Pine Mountain site, all described in Exhibit "A."
Section 1.03. Effective Date. This Agreement shall become effective
upon the effective date of Ordinance No. approving this Agreement, or
the date upon which this Agreement is executed by Molina and by the City,
whichever is later.
Section 1.03. Term.
(a) The "term" shall commence upon the effective date and shall
continue until the first to occur of the following:
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(1) The fifth anniversary of the effective date; or
(2) The date that all project approvals have been made
and become effective and are not undone by a referendum or not challenged
within the applicable statutes of limitations.
(b) In addition to the term described in the subdivision
(a) above, the term shall be for:
(1) Any period or periods of time up to a maximum of
seven (7) years from the effective date in which this Agreement or any of the
project approvals is the subject of litigation in a California court of competent
jurisdiction initiated by a party other than Molina or City or their respective
assigns, transferees or successors in interest; and
(2) Any period of time up to a maximum of seven (7)
years from the effective date from in which this Agreement or project approvals
are suspended pending the legal outcome of an electoral vote on a referendum.
(c) Following the expiration of the term, this Agreement shall be
deemed terminated and of no further force and effect. '
ARTICLE 2. APPLICABLE LAW AND PROCESSING.
Section 2.01. Right to Applicable Law. During the term of this
Agreement and any and all project approvals (e.g. General Plan
Amendments, zoning, plot plan, precise plan, or other project
approvals) shall be processed, considered, reviewed, acted upon by
City pursuant only to this Agreement and the applicable law it describes.
Section 2.02. Applicable Law. The applicable law shall
mean all of the following:
(a) Except as set forth in this Agreement, City and
Molina understand that the rules, regulations, and official policies
governing permitted land uses and density, except for the type and
amount of fees, as well as criteria for design, public and private
improvements, and construction standards and specifications applicable
to development of the Property shall be those in force at the time of
execution of this Agreement. The type and amount of fees shall be
those fees and amounts in effect at the time for payment of such fees.
(b) The City shall have the right to require compliance
with revised uniform building codes, and this Agreement is not intended
to affect the City's ability to impose or change development fees.
Notwithstanding the above, Molina acknowledges that in the event City
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establishes an assessment district or districts, including the Property,
for any purpose, Molina shall be assessed and shall pay the
assessments as any other property owner in such district or districts.
(c) City shall also have the right to impose reasonable
conditions in connection with the Map and subsequent discretionary
permit actions not inconsistent with this Agreement, but such conditions
and actions shall not conflict with the approval of the project as approved
and contemplated herein.
ARTICLE 3. EFFECT OF AGREEMENT
Section 3.01. The provisions of this Agreement shall prevail
over any conditions imposed by the City that are directly in conflict (as
opposed to being in addition to) provisions of this Agreement, except
those that the City deems appropriate due to the detection of an
uninspected or unforeseen problem or circumstance which may arise
from the construction or development of the project described herein and
which pose a threat to the public health or safety.
Section 3.02. City and Molina acknowledge that this
Agreement is entered into with the express understanding that this
Agreement, pursuant to its terms, gives Molina vested rights as to the
execution of this Agreement to subdivide and construct in accordance
with this Agreement. Accordingly, this Agreement will not be altered or
changed, nor can any of Molina's rights be delayed, compromised or
altered without Molina's express written consent, by any ordinance
adopted by the City Council, specifically including, but not limited to, to
any growth control or moratorium measure, except solely for those
limited provisions specifically provided for in Government Code §65864,
et seq. Accordingly, City shall process and issue all approvals and
permits specifically including, but not limited to, any final map approval,
building permits and certificates of occupancy related to the projects
subject to Molina's compliance will all conditions of this Agreement, the
payment of all applicable fees at the rates enforced at the time of the
payment of such fees, and with such other reasonable conditions
imposed by City. This Agreement does not give Molina any right to build
without compliance with all City requirements, regulations, and codes.
Section 3.03. City and Molina further acknowledge that
Molina would not have agreed to the provisions of this Agreement, or
entered into this Agreement, without the commitment, agreement and
assurance of City that Molina will have, and hereby has, the vested
right to develop the project in accordance with the provisions of this
Agreement.
Section 3.04. Notwithstanding the foregoing, Molina
agrees that the division of the properties, and the construction of the
properties, are subject to the following:
Section 3.05. It is agreed among the parties that the Project
is a private development and that City has no interest therein except as
authorized in the exercise of its governmental functions.
Section 3.06. Each and every purchaser, assignee or
transferee of an interest in the Subject Property, or any portion thereof,
shall be obligated and bound by the terms and conditions of this
Agreement, and shall be the beneficiary thereof and a party thereto, but
only with respect to the Subject Property, or such portion thereof, sold,
assigned or transferred to it. Any such purchaser, assignee or
transferee shall observe and fully perform all of the duties and
obligations of Molina contained in this Agreement, as such duties and
obligations pertain to the portion of the Subject Property sold, assigned
or transferred to it. Provided however, notwithstanding anything to the
contrary above, if any such sale, assignment or transfer relates to a
completed residential unit or non-residential building which has been
approved by the City for occupancy, the automatic termination
provisions of Section 5.1 hereof shall apply thereto and the rights and
obligations of Molina hereunder shall not run with respect to such portion
of the Subject Property sold, assigned or transferred and shall not be
binding upon such purchaser, assignee or transferee.
Section 3.07. Molina agrees to reimburse City for actual
expenses incurred over and above fees paid by Molina as an applicant
incurred by City directly relating to this Agreement, including recording
fees, publishing fees and reasonable staff and consultants costs not
otherwise included within application fees. This development agreement
shall not take effect until the fees provided for in this section, as well as
any other processing fees owed by the applicant to the City. Upon
payment of the payment of all expenses, Molina may request, and
Molina shall issue, written acknowledgement of payment of all fees.
Such reimbursement shall be paid within thirty (30) days of presentation
from the City of Atascadero to Molina of a written statement of charges.
The maximum amount of such fees shall be those allowed pursuant to
Government Code §66000 et seq.
Section 3.08. The City Clerk of City shall, within ten (10)
days after the effective date of this Agreement, record a memorandum
of the Agreement in a form acceptable to the City Attorney with the
County Recorder, County of San Luis Obispo.
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Section 3.09. In the event any legal action or special
proceeding is commenced by any person or entity other than a party or a
Landowner, challenging this Agreement or any provision herein, the
parties and any Landowner agree to cooperate with each other in good
faith to defend said lawsuit, each party and any Landowners to be liable
for its own legal expenses and costs. Notwithstanding the foregoing,
City may elect to tender the defense of any lawsuit filed by a third person
or entity to Molina and/or Landowner(s) (to the extent applicable
thereto), and, in such event, Molina and/or such Landowner(s) shall
hold the City harmless from and defend the City from all costs and
expenses incurred in the defense of such lawsuit, including, but not
limited to, attorneys' fees and expenses of litigation awarded to the
prevailing party or parties in such litigation. Molina and/or Landowner
shall not settle any lawsuit on grounds which include, but are not limited
to non-monetary relief without the consent of the City. The City shall act
in good faith, and shall not unreasonably withhold consent to settle.
Section 3.10. The permitted uses, the density of use, the
maximum height and size of proposed buildings, provisions for
reservation and dedication of land or payment of fees in lieu of
dedication for public purposes, the construction, installation and
extension of public improvements, development guidelines and
standards, implementation program for processing of subsequent
entitlements and other conditions of development for the Subject
Property shall be those set forth in this Agreement and all the exhibits
incorporated herein. In the event of any conflict between this
Agreement, including the Specific Plan and Design Guidelines, and any
other Existing Land Use Regulations, the terms and provisions of this
Agreement shall prevail. The parties hereto intend hereby that this
Agreement, together with the Specific Plan and all other exhibits
attached hereto, serve as the definitive and controlling document for all
subsequent actions, discretionary or ministerial, relating to the
development of the Project and that only in the rare instances, if any,
that a development issue is not expressly or impliedly addressed hereby
shall any other Existing Land Use Regulations be applied in the decision
thereon.
Section 3.11. Molina acknowledges that the Existing Land
Use Regulations contemplate the exercise of further discretionary
powers by the City. These powers include, but are not limited to,
finalization of the financing actions necessary to implement the
monitoring and individual phases of the project as it builds out. Nothing
in this Article shall be construed to limit the authority or the obligation of
the City to hold legally required public hearings, or to limit the discretion
of City and any of its officers or officials in complying with or applying
Existing Land Use Regulations.
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Section 3.12. Application fees, processing fees, and
inspection fees that are revised during the term of this Agreement shall
apply to the development pursuant to this Agreement provided that (a)
such revised fees apply generally to similar private projects or works
within City, (b) the application of such fees to development of the Subject
Property is prospective only, unless otherwise agreed to, and (c) the
application to development of the Subject Property would not require an
amendment of any of the exhibits incorporated herein.
Section 3.13. Land use fees adopted as of the Effective
Date, may be increased and shall be applicable to development
pursuant to this Agreement provided that (a) such revised fees apply
generally to similar private projects or works within City, and (b) the
application to development of the Subject Property would not require an
amendment of any of the exhibits incorporated herein.
Section 3.14. Except as expressly provided in Sections 2.3,
2.5, 2.6, 2.8 and 2.9, Molina and Landowner, or their successors in
interest, shall have no obligation to participate in, pay, contribute, or
otherwise provide as a condition or exaction of any subsequent approval
by City, any new development or impact fees, however described or
defined, imposed by City after the Effective Date. This provision will not
preclude authorized and reasonable increases in development or impact
fees in existence on the Effective Date of this Agreement.
Section 3.15. The holder of any mortgage, deed of trust or
other security arrangement with respect to the Subject Property, or any
portion thereof, shall not be obligated under this Agreement to construct
or complete improvements or to guarantee such construction for
completion, but shall otherwise be bound by all of the terms and
conditions of this Agreement which pertain to the Subject Property or
such portion thereof in which it holds an interest. Any such holder who
comes into possession of the Subject Property, or any portion thereof,
pursuant to a foreclosure of a mortgage or a deed of trust, or deed in lieu
of such foreclosure, shall take the Subject Property, or such portion
thereof, subject to any pro rata claims for payments or charges against
the Subject Property, or such portion thereof, which accrue prior and
subsequent to the time such holder comes into possession. Nothing in
this Agreement shall be deemed or construed to permit or authorize any
such holder to devote the Subject Property, or any portion thereof, to
any uses, or to construct any improvements thereon, other than those
uses and improvements provided for or authorized by this Agreement,
subject to all of the terms and conditions of this Agreement.
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Section 3.16. City shall, at lease every twelve (12) months
during the term of this Agreement, review the extent of good faith
substantial compliance by Molina and Landowner with the terms of this
Agreement. The City may charge fees as necessary to cover the costs
of conducting the annual review,. Such periodic review shall be limited
in scope to compliance with the terms of this Agreement pursuant to
California Government Code Section 65865.1. Said review shall be
diligently completed. Notice of such annual review shall include the
statement that any review may result in amendment or termination of this
Agreement. A finding by City of good faith compliance by Molina and
Landowner with the terms of the Agreement shall conclusively determine
said issue up to and including the date of said review.
The City shall deposit in the mail or fax to Molina and/or
Landowner a copy of all staff reports and, to the extent practical, related
exhibits concerning contract performance at least seven (7) calendar
days prior to such periodic review. Molina or Landowner shall be
permitted an opportunity to be heard orally or in writing regarding its
performance under this Agreement before the City Council and, if the
matter is referred to a City Planning Commission, before said
Commission.
ARTICLE 4. MISCELLANEOUS PROVISIONS
Section 4.01. In the event of changes in State or Federal
laws or regulations, acts of God, or other circumstances which
substantially interfere with carrying out the project as planned or with the
ability of either party to perform its obligations under this Agreement,
City and Molina agree to bargain in good faith to modify such obligations
to allow the project to proceed as planned to the extent practicable.
Section 4.02. Upon the occurrence of a default of either
party, the party not in default shall give the party in default written Notice
of Default. The defaulting party shall have thirty (30) calendar days from
the date of Notice of Default to cure the default if such default is curable
within such thirty (30) days. If such default is so cured, then the parties
need not take any further action except that the defaulting party may
require the non-defaulting party to give written notice that the default has
been adequately cured. Should the default not be cured within thirty (30)
calendar days from the date of notice, or should the default be of a
nature which cannot be reasonably cured within such thirty (30) day
period and the defaulting party has failed to commence within the thirty
(30) day period and thereafter diligently prosecute the cure, the non-
defaulting party may then take any legal or equitable action to enforce its
rights under this Agreement.
in
Section 4.03. Notices. All notices required under this
Agreement shall be in writing and delivered in hand or by certified mail,
postage prepaid to:
Molina: George Molina
City: City of Atascadero
Attn:
6500 Palma Avenue
Atascadero, CA 93422
Either party may change its address by written notice to the other.
Notice shall be effective on date delivered in hand or on the date when
the postal service certifies that the mailing was delivered by certified mail
receipt.
Section 4.04. Assignment. The addition of a new
partner or financing entity to Molina or the hypothecation by Molina of
the Property for financing purposes shall not constitute any breach or be
considered to be a transfer of this Agreement. Molina shall have the
right to assign and transfer the rights contained herein by.an appropriate
assignment document so long as the assignment also contains an
assumption by the transferee or assignee of all of the obligations
applicable to Molina provided for herein. Prior to recordation of any
Covenants, Conditions, and Restrictions as approved by the City
Attorney, City shall have the right to approve any successor to Molina,
which approval shall not be withheld unless City Council finds that the
successor is unable or unwilling to comply with the terms of the
Agreement. Upon such transfer, assignment and assumption, Molina
shall be released from further obligation hereunder.
Section 4.05. Molina's Rights and Remedies.
(a) Molina may enforce this Agreement by obtaining
specific performance and interim mandatory injunctive relief, specifically
including, but not limited to, the issuance of building permits and
certificates of occupancy. Molina shall also be entitled to all other rights
and remedies as may arise by law. Such rights and remedies shall be
cumulative.
(b) Nothing contained herein shall limit or interfere with
liens of mortgage holders having a mortgage made in good faith or value
on any portion of the Property. A mortgage holder includes the
beneficiary under a deed of trust and mortgage includes a deed of trust.
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Section 4.06. Governing Law. City and Molina agree
that the construction and interpretation of this Agreement and the rights
and duties of City and Molina hereunder shall be governed by the laws
of the State of California.
Section 4.07. Compliance with LawsExcept as set
forth herein, Molina agrees to comply with all federal, State, and local
laws, rules, and regulations, now or hereafter in force, pertaining to this
Agreement.
Section 4.08. Severability. City and Molina agree that the
invalidity in whole or in part of any provision of this Agreement shall not
void or affect the validity of any other provision.
Section 4.09. Waiver. City and Molina agree that no
waiver of a breach of any provision of this Agreement by either Molina or
City shall constitute a waiver or any other breach of the same provision
or any other provision of this Agreement. Failure of either City or Molina
to enforce at any time, or from time to time, any provision of this
Agreement, shall not be construed as a waiver of such provision or
breach.
Section 4.10. Costs of Enforcement. Molina and City
agree to pay all reasonable costs, attorneys' fees (including the
reasonable value of the services rendered by the City Attorney's
Department) and expenses, including investigation fees, and expert
witness fees, to the prevailing party in any dispute involving the terms
and conditions of this Agreement.
Section 4.11. Time. Molina and City agree that time
is of the essence in regard to performance of any of the terms or
conditions of this Agreement.
Section 4.12. Paragraph Headings. City and Molina
agree that paragraph headings in this Agreement are for convenience
only and are not intended to be used in interpreting or construing the
terms, covenants or conditions of this Agreement.
Section 4.13. Venue. City and Molina agree that
venue shall be in San Luis Obispo County for any action filed in State
court or for any arbitration. Venue for any action filed in Federal court
shall be in the United States District Court for the Central District for
California.
Section 4.14. Entire Agreement. City and Molina
agree that this Agreement constitutes the entire Agreement of the parties
and supersedes all prior communications, agreements, and promises,
either oral or written. City and Molina agree that the terms and
conditions of the Agreement may be reviewed or modified at any time.
Any modifications to this Agreement, however, shall be effective only
when agreed to in writing by both City and Molina.
CITY OF ATASCADERO
BY:
GEORGE LUNA, MAYOR
BY:
GEORGE MOLINA
ATTEST:
BY:
MARCIA TORGERSON,
CITY CLERK
APPROVED AS TO FORM:
BY:
ROY A. HANLEY,
CITY ATTORNEY
EXHIBIT A
LOCATION: Pine Mountain (A.P.N. 028-231-003), 8825, 8955 Coromar
Avenue (A.P.N. 056-111-027, 056-111-023), 3680, 3700 Colima
(Tentative Tract Map 2557), Ferrocaril Road-De Anza Estates (049-011-
004), Atascadero, (SLO County)
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