RECORDING REQUESTED BY AND,
WHEN RECORDED, RETURN TO:
City Clerk
City of Anaheim
P. O. Box 3222
Anaheim, California 92805
Recorded in Official Records, Orange County
Hugh Nguyen, Clerk- Recorder
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FOR RECORDER' S USE)
DEVELOPMENT AGREEMENT NO. 2021- 00001
BETWEEN
CITY OF ANAHEIM
MELIA HOMES, INC.
RECORDING REQUESTED BY AND,
WHEN RECORDED, RETURN TO:
City Clerk
City of Anaheim
P. O. Box 3222
Anaheim, California 92805
AGR- 13k i -}i
SPACE ABOVE FOR RECORDER' S USE)
DEVELOPMENT AGREEMENT NO. 2021- 00001
BETWEEN
CITY OF ANAHEIM
AND
MELIA HOMES, INC.
TABLE OF CONTENTS
1. DEFINITIONS ..........
Page
2 2. PROPERTY, PURPOSE AND INTENT.................................................................................. 6
2. 1 Property Description..................................................................................................... 6
2. 2 City Objectives.............................................................................................................. 6
2. 3 Developer Objectives.................................................................................................... 7
2. 4 Mutual Objectives......................................................................................................... 7
3. AGREEMENT AND ASSURANCES...................................................................................... 7
3. 1 Agreement and Assurance on the Part of Developer .................................................... 7
3. 2 Agreement and Assurances on the Part of the City ....................................................... 7
3. 2. 1 Entitlement to Develop..................................................................................... 7
3. 2. 2 Changes in Applicable Rules............................................................................ 7
3. 2. 3 Agreed Changes and Other Reserved Powers .................................................. 8
3. 2. 4 Subsequent Development................................................................................. 8
3. 2. 5 Effective Development Standards.................................................................... 8
3. 2. 6 Timing and Sequencing of Development......................................................... 9
3. 3 Processing Fees; Extraordinary Processing Consultant Charges and Environmental Review.................................................................................................. 9
3. 3. 1 Processing Fees and Charges............................................................................ 9
3. 3. 2 Environmental Review..................................................................................... 9
4. DEVELOPMENT PLAN.......................................................................................................... 9
4. 1 Vested Right to Develop Property................................................................................ 9
5. ANNUAL REVIEW; REIMBURSEMENT; DEFAULT; SPECIFIC
PERFORMANCE.................................................................................................................... 10
5. 1 Annual Review............................................................................................................ 10
5. 2 Reimbursement of Costs............................................................................................. 10
5. 3 Default by Developer..................................................................................................10
5. 3. 1 Default............................................................................................................ 10
5. 3. 2 Notice of Default............................................................................................ 10
5. 3. 3 Termination for Failure to Cure Default......................................................... 10
5. 3. 4 Specific Performance...................................................................................... 10
5. 3. 5 Damages......................................................................................................... 11
5. 4 Default by City............................................................................................................ 11
5. 4. 1 Notice of Default............................................................................................ 11
6. PUBLIC BENEFITS............................................................................................................... 11
6. 1 Increase in Property Taxes.......................................................................................... 11
6. 2 Affordable Housing Payment...................................................................................... 11
7. GENERAL PROVISIONS...................................................................................................... 12
7. 1 Date Agreement Becomes Effective........................................................................... 12
7. 2 Term............................................................................................................................ 12
7. 2. 1 Basic Term...................................................................................................... 12
7. 2. 2 Early Termination of Agreement.................................................................... 12
7. 2. 3 Automatic Termination of Agreement............................................................ 12 ii
7. 2. 4 Effect of Termination..................................................................................... 12
7. 3 Force Majeure: Extension of Time of Performance................................................... 12
7. 4 Applicable Law........................................................................................................... 13
7. 5 Amendments............................................................................................................... 13
7. 6 Assignment.................................................................................................................. 13
7. 6. 1 Right to Assign............................................................................................... 13
7. 7 Mortgage Rights.......................................................................................................... 14
7. 7. 1 Encumbrances on the Property and this Agreement....................................... 14
7. 7. 2 Mortgagee Protection..................................................................................... 14
7. 7. 3 Mortgagee Not Obligated............................................................................... 14
7. 7. 4 Notice of Default to Mortgagee: Right of Mortgagee to Cure ...................... 14
7. 7. 5 Bankruptcy...................................................................................................... 15
7. 7. 6 Termination Subject to Mortgagee Rights...................................................... 15
7. 7. 7 No Cancellation.............................................................................................. 15
7. 7. 8 Reserved......................................................................................................... 15
7. 7. 9 Separate Agreement........................................................................................ 15
7. 7. 10 Material Notices............................................................................................. 15
7. 7. 11 Mortgagee Right to Assign............................................................................. 16
7. 8 Covenants.................................................................................................................... 16
7. 9 Implementation........................................................................................................... 16
7. 10 Relationship of the Parties.......................................................................................... 16
7. 11 Cooperation in the Event of Third Party Litigation.................................................... 16
7. 12 Notices........................................................................................................................ 17
7. 13 Recordation................................................................................................................. 17
7. 14 Developer Hold Harmless........................................................................................... 17
7. 15 Successors and Assigns............................................................................................... 18
7. 16 Severability................................................................................................................. 18
7. 17 Waiver......................................................................................................................... 18
7. 18 Third Party Beneficiaries............................................................................................ 18
7. 19 Expedited Processing................................................................................................... 18
7. 20 Requests for Payment.................................................................................................. 18
7. 21 Entire Agreement........................................................................................................ 19
7. 22 Conflict of Laws.......................................................................................................... 19
7. 23 Legal Advice; Neutral Interpretation; Headings and Table of Contents..................... 19
7. 24 Counterparts..............................:............................................................:.................... 19
7. 25 Organization and Standing of Developer.................................................................... 19 ii
DEVELOPMENT AGREEMENT NO. 2021- 00001
BY AND BETWEEN THE CITY OF ANAHEIM
AND MELIA HOMES, INC.
THIS DEY ELOPMENT AGREEMENT NO. 3 . (" Agreement") is made and entered intoasofthis 5day ofo p 2021 ( the " Date of Agreement"), by and between the CITY OF ANAHEIM, a charter city and a municipal corporation duly organized and existing under the Constitution and the laws of the State of California (" City"), and MELIA HOMES, INC., a California corporation (" Developer"), pursuant to the authority set forth in Section 65867 of the California Government Code, and the general authority set forth in section 65864 et seq. of the Government Code the " Development Agreement Act"), the City' s inherent power as a charter city, and the Development Agreement Act implementing procedures adopted by the City in Resolution No. 82R-565 ( the Procedures Resolution"). The definitions contained in Section 1 shall apply to the entire Agreement, including the following RECITALS.
RECITALS
A. Developer has proposed development of the Project, as defined below and depicted on the Site Map ( Exhibit A to this Agreement).
B. The City and Developer recognize that development of the Project will provide redevelopment of a closed private school site with much needed housing for the City and the region; and
C. The Project will provide a low - medium residential development of attainable workforce housing, which will provide new General Fund revenues intended to offset incremental City costs associated with such uses; and
D. The Project will provide development fees which will provide City- wide benefits, certain public infrastructure, private parking and amenities needed to support the Project, as well as funding for off- site affordable housing programs and projects; and E. Developer, in consideration of City entering into this Agreement and of the benefits and opportunities provided to Developer by the Existing Approvals and the cooperation and assistance of the City in connection therewith, agrees to pay to City the " Affordable Housing Payment" ( as defined below) and will further provide assurancesto the City that the public infrastructure, amenities and design features of the Project are implemented in a timely manner as set forth in the Existing Approvals; and
F. In order to provide certainty and render development of the Project more feasible in light of the large capital investment and time necessary to coordinate and implement the Project, Developer requires assurance from the City that the land use entitlements in the Existing Approvals shall, to the extent specified herein, not be amended or supplemented; and G. Developer also recognizes and agreesthat in extending these benefits to Developer, the City must retain the Reserved Powers; and
H. Concurrently with or prior to approval of this Agreement, the City has approved the following other Project Approvals applicable to the Project, which are hereinafter collectively referred to as the " Existing Approvals":
1) General Plan Amendment No. 2020- 00533;
2) Zoning Reclassification No. 2020-00335;
3) Conditional Use Permit No. 2020- 06094; and
4) Tentative Tract Map No. 19137.
I. City and Developer desire to enter into this Agreement to provide for the Affordable Housing Payment and to assuredevelopment of the Property in accordance with the Existing Approvals and provide for vesting of same for the Term of the Agreement, to assurethe City of installation of the public infrastructure, including parking facilities, amenities and design features of the Project in accordance herewith and as described in the Existing Approvals; and N
J. On sk + , 2021, the Planning Commission, held a duly noticed public hearing regarding this Agreement and environmental documentation related thereto, and at the conclusion of such hearing, and after consideration of evidence and testimony submitted by City staff, the Developer and all interested parties, adopted a Resolution recommending that the City Council approve the Agreement; and
K. The City hereby finds that this Agreement and the Existing Approvals are consistent with the City' s General Plan and the Anaheim Municipal Code, and that the MND satisfies all requirements of the California Environmental Quality Act and the State CEQA Guidelines with respect to this Agreement and the Project; and
i'h
L. On,, 3 . p beYU, 2021, the City Council held a duly noticed public hearing regarding this Agreement and, at the conclusion of the hearing, and after considering the recommendation of the Planning Commission, the evidence and testimony submitted by City staff, the Devveloler and all other interested parties, introduced Ordinance No. ( e521 approving this Agreement on 2 e. htY Z'; 2021, and adopted Ordinance No. authorizing execution of this Agreement on C , 2021 (the " Authorizing Ordinance"); and
WHEREAS, for the foregoing reasons, the Parties desire to enter into this Agreement.
NOW, THEREFORE, in consideration of the promises and mutual promises and covenants herein contained and other valuable consideration, the receipt and legal sufficiency of which are hereby acknowledged, the Parties hereto agree as follows:
DEFINITIONS.
1. 1 " Affordable Housing Payment" means payments to be made by Developer to City as set forth in Section 6. 2 of this Agreement.
1. 2 " AMC" means the Anaheim Municipal Code.
2 1.3 " Annual Review" means the annual review process as described in Section 5. 1 of this Agreement.
1.4 " Applicable Rules" means ( subject to the qualifications set forth herein with respect to Feesand excluding the ReservedPowers) the rules, regulations, ordinancesand officially adopted plans andpolicies of the City in force asof the Effective Dategoverning the useanddevelopmentof real property and which, among other matters, govern the permitted uses of land, the density or intensity of use, the maximum height andsizeof proposedbuildings, parking requirements, setbacks, development standards, the provisions for reservation or dedication of land for public purposes, and the designimprovementsapplicableto the developmentof the Property, including without limitation, the Existing Approvals.
1. 5 " CEQA" means the California Environmental Quality Act ( Cal. Public Resources Code sections 21000 et seq.), the State CEQA Guidelines ( Cal. Code of Regs., Title 14, section 15000 et seq.) and City CEQA Guidelines.
1.6 " City Agency" means each and every agency, department, board, Commission, authority, employee, and/or official acting under the authority of the City that have permit, entitlement or approvalauthority or jurisdiction over the Project, including, without limitation, the City Council and the Planning Commission.
1.7 " City Attorney" means the City Attorney of the City.
1. 8 " City Council' means the City Council of the City.
1.9 " City Manager" means the City Manager of the City.
1. 10 " Conditions of Approval' means those conditions of approval for the Project adopted in connectionwith the granting of the Existing Approvals.
1. 11 " Discretionary Action" means an action which requires the exercise of judgment, deliberationor a decision on the part of the City and/or anyCity Agency in the processof approving or disapproving a particular activity, as distinguished from Ministerial Permits and Approvals, as defined below, and any other activity which merely requires the City and/or any City Agency to determinewhetherthere hasbeencompliancewith statutes, ordinancesor regulations. Discretionary Actions shallnot include anyMinisterial PermitsandApprovals.
1. 12 " Effective Date" means the effective date of the Authorizing Ordinance.
1. 13 " Existing Approvals" means those approvals described in Recital H.
1. 14 " Fees" means any fees or charges imposed or collected by the City as of the Effective Date other than ( i) Impact Fees, Processing Fees and Charges and (ii) fees collected and/or imposed by the City for the benefit of public agencies other than the City.
1. 15 " General Plan" means the General Plan of the City.
1. 16 " Housing Fund" means that certain fund created and maintained by City pursuant to City Council Resolution No. 2018- 106.
3 1. 17 " Impact Fees" means impact fees, linkage fees, exactions, fair share charges or other similar impact fees or charges imposed on and in connection with new development on a city- wide basisby the City pursuantto rules, regulations, ordinancesandpolicies of the City in full force and effect as of the Effective Date. Impact Fees shall not include Processing Fees and Charges, the Affordable Housing Payment, taxes or special assessments.
1. 18 " Inspections" means all field inspections and reviews by City officials during the course of construction of the Project and the processing of certificates of occupancy ( permanent or temporary).
1. 19 " Institutional Lender" means any of the following institutions having assetsor deposits in the aggregate of not less than One Hundred Million Dollars ($ 100, 000, 000. 00): a California chartered bank; a bank created and operated under and pursuant to the laws of the United States of America; an " incorporated admitted insurer" ( as that term is used in Section 1100. 1 of the California Insurance Code); a " foreign ( other state) bank" ( as that term is defined in Section 1700( 1) of the California Financial Code); a federal savings and loan association ( Cal. Fin. Code Section 8600); a commercial finance lender ( within the meaning of Sections 2600 et seq. of the California Financial Code); a " foreign ( other nation) bank" provided it is licensed to maintain an office in California, is licensed or otherwise authorized by another state to maintain an agency or branch office in that state, or maintains a federal agency or federal branch in any state (Section 1716 of the California Financial Code); abank holding company or a subsidiary of a bank holding company which is not a bank (Section 3707 of the California Financial Code); a trust company, savings and loan association, insurance company, investment banker; college or university; pension or retirement fund or system, either governmental or private, or any pension or retirement fund or system of which any of the foregoing shall be trustee, provided the same be organized under the laws of the United States or of any state thereof; and a Real Estate Investment Trust, as defined in Section 856 of the Internal Revenue Code of 1986, as amended, provided such trust is listed on either the American Stock Exchange or the New York Stock Exchange.
1. 20 " Key People" means Bernard J. Delzer, aka BJ Delzer.
1. 21 " Legal Description" means the legal description of the Property attached hereto as Exhibit B and incorporated herein by reference.
1.22 " Litigation" means any lawsuit ( including a cross -action) fled against the City and/or Developer which challenges the validity, implementation or enforcement of, or seeksany other remedy directly relating to, all or anypart of the Existing Approvals or this Agreement.
1. 23 " MND" means the Mitigated Negative Declaration prepared to evaluate the physical environmental impacts of the Project.
1. 24 " Ministerial Permits and Approvals" means the nondiscretionary permits, approvals, plans, inspections, certificates, documents and licenses required to be taken, issued or approved by the City in order for Developer to implement, develop and construct the Project and the Mitigation Measures, including without limitation, building permits, and other similar permits and approvals.
1. 25 " Mitigation Measures" means those Mitigation Measures set forth in that certain MitigationMonitoringPlanNo2&1 fortheProject.
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1. 26 " Mortgage" meansan instrument or instrumentssecuringone or more financings by the Developer with respect to the construction, development, use or operation of the Project, and includes whatever security instruments are used in the locale of the Project, including, without limitation, mortgages, deedsof trust, security deeds, and conditional deeds, as well as financing statements, security agreements and other documents required pursuant to the Uniform Commercial Code.
1. 27 " Mortgagee" means one or more Institutional Lenders holding a beneficial interest and securedposition under any Mortgage which have notified City, in writing, of its requestfor notice under the provision of Section 7. 7 hereof.
1. 28 " Official Records" meansthe Official Recordsof OrangeCounty, California.
1. 29 " Parties" meanscollectively the Developerandthe City.
1. 30 " Party" means any one of the Developer or the City.
1. 31 " Plaintiff means any party seeking relief or compensation through Litigation, whether as plaintiff, petitioner, cross- complainant or otherwise.
1. 32 " Planning Commission" means the Planning Commission of the City.
1. 33 " Planning Director" means the Planning and Building Director of the City.
1. 34 " Processing Fees and Charges" means all processing fees and charges required by the City including, butnotlimitedto, feesandchargesfor landuseapplications, Projectpermits, building applications, building permits, grading permits, encroachment permits, tract or parcel maps, lot line adjustments, air right lots, street vacations, certificates of occupancy and other similar permits.
1. 35 " Project" means the development on the Property of 112 residential townhomes ( for - sale) units with approximately65,840 squarefeet of residentamenity space, approximately 3,413, as more specifically describedin the Existing Approvals andasshownon theSite Map.
1. 36 " Project Architect" meansthe architectdesignatedby the Developerasresponsiblefor the design and construction supervision of the Project.
1. 37 " Property" means that real property Developer owns, which is legally described in Exhibit B attached hereto.
1. 38 " Public Improvements" means the facilities to be improved, constructed and dedicated to (and, upon completion in accordance with this Agreement, accepted by) the City by the Developer.
Public Improvementsinclude sidewalks, all public utilities within the streets (such as electricity and water, but excluding anynon -municipal utilities), pathsin thepublic right-of-way, off- siteintersection improvements (including but not limited to curbs, curb ramps, medians, signaling, traffic controls devices, signage, and striping), and all other improvements delineated on street improvement plans approved by the City Engineer for the Project during the pendency of the Project.
1. 39 " Reserved Powers" means the rights and authority excepted from this Agreement' s restrictions on the City' s police powers which are reserved to the City, including without limitation the establishment of new fees and, commencing with the fourth ( 4t")
anniversary of the Effective Date,
applying the then -applicable Impact Fees adopted by the City to the Project. The Reserved Powers supersede the Applicable Rules to the extent of any inconsistency and include the power to enact and implement rules, regulations, ordinancesandpolicies after the Effective Datethat may be in conflict with the Applicable Rules, which: ( 1) prevent or remedy conditions which the City has found to be injurious or detrimental to the public health or safety and are generally applicable on a City- wide basis; 2) are Uniform Codes; ( 3) are necessary to comply with state and federal laws, rules and regulations whether enacted previous or subsequent to the Effective Date) as provided in Section 3. 2. 2. 3, or to comply with a court order or judgment of a state or federal court; ( 4) are agreed to or consented to by Developer; ( 5) involve the formation of assessment districts, Mello - Roos Community Facilities Districts, special districts, maintenance districts or other similar districts formed in accordance with applicable laws provided, however, that Developer shall retain all its rights with respect to such districts pursuant to all applicable laws; or ( 6) are Processing Fees and Charges.
1. 40 " Section" means the indicated section or subsection number of this Agreement.
1. 41 " Site Map" means the map of the Property which is attached. thereto as Exhibit A and incorporated herein by reference.
1.42 " Term" means the period of time during which this Agreement shall be in effect and shall bind the City and Developer as provided in Section 7.2 of this Agreement.
1. 43 " Transfer" means: ( i) a sale of the Property, portion thereof, or interest therein exceptingto anotherentity directly or beneficially ownedby Developeror of which Developeris the manager or general partner, and excluding any portion of the Property dedicated to City in connection with the implementation of development of the Property as well as the granting of normal and customary utility easements); ( ii) a ground lease of the Property' or portion thereof, or ( iii) the change in the Developer eliminating one or more of the Key People.
1.44 " Uniform Codes" means those building, electrical, mechanical, fire and other similar regulations which are applicable throughout the City, including, but not limited to, the California Building Standards Codes, as adopted by the City Council and codified in Chapter 15.03 ( Building Standards Codes and Administrative Provisions Pertaining to Building and Construction) of Title 15 Buildings and Housing) of the AMC, and the California Fire Code, as adopted by the City Council andcodified in Chapter16.08 (California Fire Code) of Title 16 (Fire) of the AMC, asthe samemay be amendedfrom time to time by the City.
2. PROPERTY, PURPOSE AND INTENT.
2. 1 Property Description. The Property is shown on the Site Map and describedin the Legal Description.
2. 2 City Objectives. The City desires that the Property be developed as provided for in the Existing Approvals to: ( i) provide for the paymentby the Developer to the City of the Affordable Housing Payment, ( ii) provide a fully integrated and coordinated development basedon comprehensive planning principles; and ( iii) to the extent Developer proceeds with the Project, to assure that the Project will be developed as described in the Existing Approvals. The City further desires to encourage the generation of private payments to the Housing Fund, including without limitation the payment by the Developer of the Affordable Housing Payment.
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2. 3 Developer Objectives. This Agreement is necessary to assure Developer that ( i) the Projectwill not bereducedin density, intensityor use; and (ii) theProjectwill not be subjectedto new rules, regulations, ordinances, or official policies or delays which are not permitted by this Agreement.
2. 4 Mutual Objectives. Development of the Project in accordance with this Agreement will provide the assurances required for the development of the Project in accordance with the goals and objectives set forth in the General Plan. Moreover, this Agreement provides additional assurance to theCity andDeveloperthat, shouldDeveloperproceedwith theProject, theinstallation of necessary improvements will occur in the manner set forth in the Existing Approvals and otherwise achieve the goals and purposes for which the Development Agreement Act was enacted. The Parties believe that suchanorderly, coordinateddevelopmentof theProjectwill provide manypublic benefitsto theCity, including without limitation: delivery by theDeveloperto theCity of theAffordable HousingPayment, and development of under- utilized properties and uses.
3. AGREEMENT AND ASSURANCES.
3. 1 Agreement and Assurance on the Part of Developer. In consideration for the City entering into this Agreement, and as an inducementfor the City to obligate itself to carry out the covenants and conditions set forth in this Agreement, and in order to effectuate the purposes and intentions set forth in Section 2 of this Agreement, should Developer proceed with the Project, Developerherebyagreesto (i) developthe Projectconsistentwith the Existing Approvals, subjectto
3.2.6 of this Agreement and Force Majeure; and (ii) deliver to the City the Affordable Housing Payment, by the time set forth therefor in Section 6.2 of this Agreement.
3. 2 Agreement and Assurances on the Part of the City. In consideration for Developer enteringinto this Agreementand delivery of the Affordable Housing Paymentandprovision of other public benefits, as further set forth in Section 6 below, and as an inducement for Developer to obligate itself to carry out the covenantsand conditions set forth in this Agreement, the City herebyagrees during the term as follows:
3. 2. 1 Entitlement to Develop. Developer has a vested right to develop the Project in accordance with the Existing Approvals subject to the terms and conditions of this Agreement, the Applicable Rules andtheReservedPowers. City shall not revoke or modify the Existing Approvals.
Developer' s vested rights under this Agreement shall include, without limitation, the right to remodel, renovate, rehabilitate, redevelop, rebuild or replacethe Project or anyportion thereof throughoutthe applicable Term for any reason, including, without limitation, in the event of damage, destruction or obsolescence of the Project or any portion thereof, subject to the Applicable Rules, Existing Approvals and ReservedPowers, provided that Developer shall have paid to City not less than One Hundred Twelve Thousand Dollars ($ 112,000.00) as the Affordable Housing Payment.
3. 2. 2 Changes in Applicable Rules.
3. 2. 2. 1 Non -Application of Changespplicable Rules. Any change in, or addition to, the Applicable Rules, including, without limitation, any change in any applicable general or specific plan, zoning ordinance or building regulation adopted or becoming effective after the Effective Date, including, without limitation, any such change by means or ordinance, City Charter amendment, initiative, referendum, resolution, motion, policy, order or moratorium, initiated or instituted for any reasonwhatsoeverand adoptedby the City Council, Planning Commissionor City Agency, or by the electorate, as the case may be, which would, absent this Agreement, otherwise be 7 applicable to the Project and which would conflict with the Applicable Rules, Existing Approvals or this Agreement, shall not be applied to the Project unless such changes represent an exercise of the City' s ReservedPowers or are otherwise expressly allowed by this Agreement or consentedto in writing by Developer. In the event of any conflict or inconsistency between this Agreement and the Applicable Rules, the provisions of this Agreement shall control.
3. 2. 2. 2 Changes in Uniform Code. Notwithstanding any provision of this Agreement to the contrary, construction of the Project shall comply with changes occurring from time to time in the Uniform Codes pursuant to the Reserved Powers.
3. 2. 2. 3 Changes Mandated by Federal or State Law. This Agreement shall not preclude the application to the Project of changes in, or additions to, the Applicable Rules. In the event state or federal laws or regulations prevent or preclude compliance with one or more provisions of this Agreement, such provisions shall be modified or suspended asmay be necessaryto comply with such state or federal laws or regulations.
3. 2. 2. 4 Special Taxes and Assessments. Developer shall have the right, to the extentpermitted by law, to protest, opposeandvote againstanyandall specialtaxes, assessments, levies, chargesand/or feesimposedwith respectto any assessmentdistricts, Mello -RoosCommunity Facilities Districts, maintenancedistricts or othersimilar districtswhich would include thePropertyor the Project.
3. 2. 3 Agreed Changes and Other Reserved Powers. This Agreement shall not preclude application to the Project of rules, regulations, ordinances and officially adopted plans and policies otherwise in conflict with the Applicable Rules if ( i) agreed to in writing by Developer, or (ii) result from the Reserved Powers. City agrees that Developer may, in its sole discretion, give the City written notice of its election to have any subsequent change in the Applicable Rules applied to some portion or all of the Project or the Property as it may own, in which case such subsequent changes in the Applicable Rules shall be deemed to be contained within the Applicable Rules insofar as that portion of the Property is concerned.
3. 2. 4 Subsequent Development. The City shall not require Developer to obtain any approvals or permits for the development of the Project other than those permits or approvals which are required by the Applicable Rules or the Reserved Powers.
3. 2. 5 Effective Development Standards. The City agrees that with respect to the Project it is bound to permit developmentof the Project in accordancewith the Existing Approvals including without limitation, the uses, intensity and density aspermitted by the Existing Approvals, subject to the Applicable Rules, Reserved Powers and this Agreement. Moreover, the City hereby agreesthat it will not unreasonablywithhold any Discretionary Action which must be issuedby the City in orderfor theProjectto proceed, providedthatDeveloperreasonablyandsatisfactorilycomplies with all City- wide standard procedures and policies of the City for processing any such Discretionary Action andpaysanyapplicableProcessingFeesandCharges. TheCity shallacceptandtimely process, in the normal manner for processing such matters asmay then be applicable, all applications for further approvals with respect to the Project called for or required under this Agreement,
3. 2. 6 Timing and Sequencing of Development. Developer anticipates that the Project will be completed in five construction phases, including all general grading, site preparation, utility lines and infrastructure, and residential construction. Notwithstanding any provision of this Agreement or the AMC, the Parties expressly agree that there is no requirement that Developer initiate or completedevelopmentof the Project or any particular phaseof the Project within any particular period of time, andCity shall not imposesuch a requirementon any of the Existing Approvals. The Parties acknowledge that Developer cannot at this time predict when or the rate at which the Property will be developed. Such decisions depend upon numerous factors which are not within the control of Developer, such as market demand, interest rates, competition and other similar factors. Because the California Supreme Court held in Parolee Construction Co. v. City of Camarillo ( 1984) 37 Cal. 3d 455, that the failure of the parties therein to provide for the timing of development resulted in a later adopted initiative restricting the timing of development to prevail over such parties' agreement, it is the Parties' intent to cure that deficiency by expressly acknowledging and providing that Developer shall have the right to develop the Property, or to not develop the Property, in such order and such rate and at such time as Developer deems appropriate within the exercise of its subjective business judgment in its sole and absolute discretion; provided, however, that upon commencement of any work related to the developmentor construction of the Project, or any portion thereof, the Developer shall diligently prosecute the same to completion without substantial interruption in accordance with applicable permits and requirements under this Agreement, subject to Force Majeure. In the event an ordinance, resolution or other measure, referendum, or initiative is enacted, whether by action of the City or otherwise, which relates to the rate, amount, timing, or sequencing of the development or construction of the Project on all or any part of the Property or the implementation or construction of the Mitigation Measures, City agrees, to the maximum extent permitted by law, that such ordinance, resolution or other measure shall not apply to the Project, the Property or this Agreement, unless such changes are adopted pursuant to the City' s exercise of its Reserved Powers or other applicable provisions of this Agreement.
33 Processing Fees; Extraordinary Processing Consultant Charges and Environmental Review.
3. 3. 1 Processing Fees and Charges. Developer shall pay all Processing Fees and Charges for Ministerial Permits and Approvals and Inspections at the rate in effect at the time they are sought.
3. 3. 2 Environmental Review. In compliance with CEQA, the City has conducted anenvironmentalreview of the Projectandhasadoptedthe MND andMitigation Measures. The City intends that Ministerial Permits and Approvals are not actions subject to requirements for further environmental review pursuant to CEQA.
4. DEVELOPMENT PLAN.
4. 1 Vested Right to Develop Property. Subject to the terms of this Agreement, Developer shall have a vestedright to develop the Property in accordancewith, and to receivethe benefits set forth andprovidedin, the Existing Approvals. In the absenceof a default by Developer, City shall not revoke, rescind, impedeor thwart anyof theExisting Approvalsor this Agreement.
5. ANNUAL REVIEW; REIMBURSEMENT; DEFAULT; SPECIFIC PERFORMANCE.
5. 1 Annual Review. During the Term and so long asthis Agreement is in effect, Developer shall initiate and the City shall conduct an Annual Review of Developer' s compliance with this Agreement and the Procedures Resolution. Such Annual Review shall be limited in scope to OJ
determining good faith compliance with the provisions of this Agreement. The Annual Review shall be initiated and conducted in accordance with the Procedures Resolution.
5. 2 Reimbursement of Costs. Developer shall pay to City in advance, the Application Fee for Annual Review required by the City' s Procedures Resolution on each occasion that Developer submits its evidence for the Annual Review. Developer shall also reimburse the City for its actual costs, reasonably and necessarily incurred or any legal or financing consultant cost necessary to accomplish review of amendments pursuant to Section 7. 5 of this Agreement. Such reimbursement shall be due within thirty ( 30) days after receipt of invoice from the City.
5. 3 Default by Developer.
5. 3. 1 Default. In the event the City reasonably determines that Developer has failed to perform any of its obligations under this Agreement, or that any such obligations are not performed in a timely manner, the City maypursueonly thoseremediesexpresslyprovided for in this Agreement; provided, however, that the City' s right to compel specific performance of the obligations of Developer under this Agreement shall be subject to the limitations set forth in Section 5. 3. 4. Further, the City shall have no right to monetary damages except as set forth in Section 5.3.5.
5. 3. 2 Notice of Default. In the event the City reasonably determines that Developeris in default of any of its obligations underthis Agreement, the City shall senda notice of such alleged default( s) to Developer in which the allegations of default shall be set forth in sufficient detail to enable Developer to ascertain the specific actions necessary to cure the alleged default( s).
Upon receipt of a notice of default, Developer shall promptly commence to cure the identified default( s) at the earliest reasonable time after receipt of such notice but in no event more than thirty 30) days after receipt of notice and shall complete the cure of (i) any monetary default( s) not later than thirty ( 30) days after the receipt of such notice of default, and (ii) any non -monetary default( s) not later than ninety ( 90) days after the receipt of such notice of default or such longer period as necessary to cure default as agreedto by City in its solediscretion. The Partiesmay mutually agreein writing to extend the time periods set forth in this Section.
5. 3. 3 Termination for Failure to Cure Default. If after the cure period provided for in Section5.3.2 haslapsedandthe PlanningDirector reasonablyfinds and determinesthat Developer remains in default, the Planning Director shall make a report to the City Council concerning such default and the City Council may thereafter proceed to modify or terminate this Agreement in accordance with the Procedures set forth in Sections 7. 2 and 7. 3 of the Procedures Resolution.
5. 3. 4 Specific Performance. Except asprovided in this Section 5.3.4, the City shall haveno right underthis Agreementto seeka remedyof specificperformancewith respectto theProject in theeventof anabandonmentof the Project. In in the interestof public safetyandthevalid exercise of its police power, the Parties agree that the City has the right to direct Developer, at the election of the City in its sole discretion, to complete or make safe and secure any uncompleted improvements located on the Property with the choice of whether to demolish, complete or secure such improvements and the method of such demolition, completion and securing of such improvements to be selected by Developer in its sole discretion. Nothing in this Section 5.3.4 shall limit the City' s enforcement of all applicable provisions of the Applicable Rules, Existing Approvals, Mitigation Measures, and Uniform Code for any portion of the Project then or thereafter constructed ( e.g., requiring Developer to build sewer laterals required under Applicable Rules to serve the Project actually completed), termination of this Agreement in accordance with the provisions hereof notwithstanding. 10 5. 3. 5 Damages. The City shall have the right to recover damages equal to the amount to the required Affordable Housing Payment to the extent less than all of the Affordable Housing Payment of One Hundred Twelve Thousand Dollars ($ 112,000.00) hasbeenreceivedby City from Developer. Any damageremedyof Developer againstCity shall be limited to the amount of actual damagessustainedby Developerand causedby wrongful actions of City, but in no eventto exceedtheamountstheretoforepaidby Developerto City asthe Affordable HousingPayment.
5. 4 Default by City.
5. 4. 1 Notice of Default. In the eventtheDeveloperreasonablydeterminesthatthe City is in default of any of its obligationsunderthis Agreement, the Developer shall senda notice of such alleged default( s) to the City in which the allegations of default shall be set forth in sufficient detail to enablethe City to ascertainthe specific actionsnecessaryto curetheallegeddefault(s). Upon receipt of written notice of default from Developer, the City shall promptly commenceto cure the identified default( s) at the earliest reasonable time after receipt of the notice of default and shall complete the cure of such default( s) not later than sixty ( 60) days after receipt of the notice of default or suchlonger period asnecessaryto curedefault asagreedto by the Developerin its solediscretion.
The Parties may mutually agree in writing to extend the time periods set forth in this Section.
Developer shall have all rights and remedies provided herein or by applicable law, which shall include but not be limited to compelling the specific performance of the City' s obligations under this Agreement provided that Developer, as the case may be, has first complied with the notice procedures in this Section. No part of this Agreement shall be deemed to abrogate or limit any immunities or defensestheCity may otherwisehavewith respectto claims for monetarydamages.
6. PUBLIC BENEFITS.
6. 1 Increasein Property. The Project will generatesignificant additional property taxes.
6. 2 Affordable Housing Payment. The Affordable Housing Payment is due as of the sixtieth (60th) day after the Date of Agreement; provided that, at its election, Developer may make payments in two installments as follows: ( i) an initial payment, which shall be in the amount of Fifty - Six Thousand Dollars ($ 56,000.00) shall be paid by Developer to City on or before the first to occur of. ( a) the issuanceof a precise grading permit as to all or any portion of the Property; (b) the commencement of grading activity on all or any portion of the Property; ( c) the issuance of a building permit for construction on all or any portion of the Property; ( d) the commencement of construction on the Propertyor any portion thereof; or (e) a Transfer of the Property or portion thereof; and (ii) a second payment, which shall be in the amount of Fifty - Six Thousand Dollars ($ 56, 000. 00) shall be paid by Developer to City on or before the first to occur of. ( a) the issuanceof any certificate of occupancy for improvements to the Property or any portion thereof; ( b) the issuance by City, at its election, of a temporary certificate of occupancy for improvements to the Property or any portion thereof; or ( c) a Transfer of the Property or any portion thereof. Execution and recording of this Agreementshall be deemedto createa lien in favor of City ( asbeneficiary), with rights to enforce collection, asto theAffordableHousingPayment.
Upon receipt by City of the Affordable Housing Payment, City will causesuch Affordable Housing Paymentto be kept in the Housing Fund until usedby the City for purposesconsistentwith City Resolution No. 2018-106; provided that the mannerin which the City deploys moneys in the Housing Fund is not a matter of concern to the Developer. 11 7. GENERAL PROVISIONS.
7. 1 Date Agreement Becomes Effective. This Agreement shall become effective on the Effective Date.
7. 2 Term.
7. 2. 1 Basic Term. The Term of this Agreement shall commence on the Effective Date of this Agreement and shall extend, modified for a period of seven ( 7) years after the Effective Date, unless extended or earlier terminated as provided herein. City delegates authority to the City Planning Commission to extend the Term, at its election, for an additional period of up to three ( 3) years after the initial seven (7) year term. Following the expiration or termination of this Term, this Agreement shall terminate and be of no further force and effect.
7. 2. 2 Early Termination of Agreement. This Agreement is terminable: ( i) by mutual written agreement of the Parties; or ( ii) by either Party following an uncured default by the other Party under this Agreement, subject to the procedures and limitations set forth in this Agreement; or (iii) upon the occurrence of the entry of a final judgment or issuance of a final order, after all appeals havebeenexhausted, directedto the City as a result of any lawsuit filed againstthe City to setaside, withdraw or abrogate the approval of the City Council of this Agreement; or ( iv) if termination occurs pursuantto theprovisions of the ProceduresResolutionand suchtermination is so intendedthereby.
7. 2. 3 Automatic Termination of Agreement. If not alreadyterminatedby reason of any other provision in this Agreement, or for any other reason, this Agreement shall automatically terminate and be of no further force and effect upon completion of the Project pursuant to the terms of this Agreement and any further amendments thereto and the issuance of all occupancy permits and acceptance by the City of all dedications and improvements as required by the development of the Project.
7. 2. 4 Effect of Termination. Following expiration of the Term, early termination pursuant to Section 7. 2. 2 above, or automatic termination pursuant to Section 7. 2. 3, this Agreement shall be of no further force and effect, except for any provisions which, by their express terms, survive the expiration or termination of this Agreement.
7. 3 Force Majeure: Extension of Time of Performance. In addition to specific provisions of this Agreement, wheneveraperiod of time is designatedwithin which eitherPartyheretois required to do or complete any act, matter or thing, both the time for the doing or completion thereof and the Term of this Agreement and the specific obligation hereunder shall be extended by a period of time equalto thenumberof dayswhich suchPartyis preventedfrom, or is unreasonablyinterferedwith the doing or completion of such act, matter or thing becauseof the following causes, which causesare beyondthe reasonablecontrol of the Party to be excusedincluding: war, terrorist acts, insurrection; strikes; walk - outs; riots; floods; earthquakes; fires; unavoidable casualties; acts of God; epidemics, pandemics; Litigation and administrative proceedings which are brought against the Project by a third party ( not including any administrative proceedings contemplated by this Agreement in the normal course of affairs such asthe Annual Review); restrictions imposed or mandated by other governmental entities (" Governmental Restrictions"); enactment of conflicting state or federal laws or regulations Conflicting Laws"); or similar bases for excused performance which is not within the reasonable control of the Party to be excused (financial inability excepted). This Section shall not be applicable to, bankruptcy or receivership initiated by or on behalf of Developer or, if not dismissed within ninety 12 90) days, by any third partiesagainstDeveloper. A Partywishing to invoke this Sectionshall notify in writing the other Party of that intention within thirty ( 30) daysof the commencementof any such causefor delay and shall, at that time, specify the reasonstherefor, the provisions of this Agreement thatwill be delayedasaresult, andtheperiod of suchextension, if known, or, if not known, theparty's best estimatethereof. The failure to so notify the other Party within that period as to the causefor delayshall constituteawaiver of anyright to laterrely upon this Sectionwith respectto that cause. In the event any such extension continues for more than one hundred eighty ( 180) days, any Party not then in Default of its obligations hereunder, shall be entitled to terminate this Agreement upon written notice to the other and, in that event, the Parties shall have no further obligations hereunder.
7. 4 Applicable Law. This Agreement shall be construed and enforced in accordance with thelawsof the Stateof California, andthevenuefor anylegal actionsbroughtby anyPartywith respect to this Agreement shall be the County of Orange, State of California, for state actions, and the Orange County Division of the Central District of California for any federal actions.
7. 5 Amendments. This Agreement may be amendedfrom time to time in writing in accordance with Government Code section 65868 and the Procedures Resolution.
7. 6 Assignment.
7. 6. 1 Right to Assign. Provided that Developer has made all payments required to be made as of such time pursuant to Section 6.2, Developer shall have the right to sell, mortgage, hypothecate, assignor transferthis Agreement, and any and all of its rights, duties and obligations hereunder, to anyperson, partnership, joint venture, firm or corporationat anytime during theterm of this Agreement, provided that any such sale, mortgage, hypothecation, assignment or transfer must be pursuant to a sale, assignment or other transfer of the interest of Developer in the Property ( or a portion thereof), which, prior to Developer' s acquisition of fee title to the Property shall mean and refer to Developer' s equitable interest in the Property. In the event of any such sale, mortgage, hypothecation, assignment or transfer, ( a) Developer shall notify the City of such event and the name of the transferee, together with the corresponding entitlements being transferred to such transferee and (b) the agreement between Developer and such transferee shall provide that the transferee shall be liable for the performance of all obligations of Developer pursuant to this Agreement and the Existing Approvals with respect to Developer' s interest in the Property ( or portion thereof) so transferred. Upon the express written assumption of any and all of the obligations of Developer under this Agreement by such transferee, the transfer shall, without any act of or concurrenceby the City, relieve Developer of its legal duty to perform said obligations under this Agreement with respect to Developer' s interest in the Property ( or portion thereof), so transferred, except to the extent Developer is in default under the terms of this Agreement. Any transaction of activity that constitutes a Transfer shall be subject to the remainingprovisions of this Agreement, including without limitation Section6.2.
7. 7 Mortgage Rights.
7. 7. 1 Encumbrances on the Property and this Agreement. The Parties hereto agree that this Agreement shall not prevent or limit Developer, in any manner, at Developer' s sole and absolute discretion, from encumbering the Property or any portion thereof or any improvements thereon with any Mortgage. Developer is hereby given the express right, in addition to any other rights hereingranted, to grantaMortgageon its interestsin this Agreementor anypart or partsthereof, under one or more Mortgages and to assign this Agreement as collateral security for any such Mortgage. 13 7. 7. 2 Mortgagee Protection. This Agreement shall be superior and senior to the lien of anyMortgage. Notwithstandingtheforegoing, no breachof this Agreementshalldefeat, render invalid, diminish, or impair the lien of any Mortgage made in good faith and for value, and any acquisition or acceptance of title or any right or interest in or with respect to the Property or any portion thereof, or to this Agreement, by a Mortgagee (whetherpursuantto foreclosure, leaseterminationor otherwise) shall upon written election by the Mortgagee within sixty ( 60) days after receipt of such right, title or interest, be subjectto all of the terms and conditions of this Agreement and any such Mortgagee who takes title to the Property or any portion thereof, or to this Agreement, shall also be entitled to the rights and obligations arising under this Agreement.
7. 7. 3 Mortgagee Not Obligated. Notwithstanding the provisions of this Section
7.7, a Mortgagee will not have any rights, obligations or duties pursuant to the terms set forth in this Agreement to perform the obligations of Developer or other affirmative covenants of Developer hereunderor to guaranteesuchperformance, unlesssuchMortgageeexpresslyassumesthe rights and obligations of the Developer and except that (i) the Mortgagee shall upon written election by the Mortgageewithin sixty (60) daysafter receipt of suchright, title or interest, haveno right to develop the Project without fully complying with the terms of this Agreement, and (ii) to the extentthat any covenantto beperformedby Developeris a condition to theperformanceof anycovenantby the City, theperformancethereofshallcontinueto beaconditionprecedentto theCity' sperformancehereunder.
Although not obligatedto do so, upon written electionby the Mortgageewithin sixty (60) daysafter receipt of suchright, title or interest, any Mortgageemay do any act or thing required by Developer hereunder, anddo anyact or thing which may be necessaryandproperly donein the performanceand observance of the agreements, covenants and conditions hereof to prevent termination of this Agreementin accordancewith Section7.7.4. Any Mortgageeandits agentsandcontractorsshallhave full accessto the Propertyfor purposesof accomplishingany of the foregoing. Any of the foregoing done by any Mortgagee shall be as effective to prevent a termination of this Agreement as if the same would havebeendoneby the Developer.
7. 7. 4 Notice of Default to Mortgagee: Rijzht of Mortgagee to Cure. Each Mortgagee shall, upon written request to City be entitled to receive written notice from the City of the result of the Annual Review and of any default by Developer of its obligations set forth in this Agreement simultaneously with the delivery of such notices to the Developer. Each Mortgagee shall have the right, but not an obligation, to cure such default within ninety ( 90) days after receipt of such notice or, if suchdefault canonly beremediedor curedby suchMortgageeupon obtainingpossession of the Property, such Mortgagee shall have the right to seek or obtain possession with diligence and continuity through a receiver or otherwise, and to remedy or cure such default within ninety ( 90) days after obtaining possession, and, exceptin caseof emergencyor to protectthepublic healthor safetyas determinedby the City in its reasonablediscretion, City may not exerciseany of its remediessetforth in this Agreementuntil expirationof suchninety (90) dayperiod whethercommencinguponreceiptof notice or upon obtaining possessionof the interestscoveredby a Mortgage, as applicable; provided, however, that in thecaseof a default which cannotwith diligencebe remediedor curedor theremedy or cureof which cannotbe commencedwithin suchninety (90) day period, the Mortgageeshall have such additional time as is reasonably necessary to remedy or cure such default. Any notice of termination deliveredin violation of this Section7.7.4 shallberenderedvoid. In anycasewhere, sixty 60) days after receipt by the Mortgageeof the notice of the Developer's default, the holder of any Mortgage creating a lien or encumbrance upon the Property, or any part thereof, has not exercised the option to cure, or, if it hasexercisedtheoption, is not proceedingdiligently with thecure, theCity may proceed with termination of this Agreement and any further obligations of City hereunder. 14 7. 7. 5 Bankruptcy. Notwithstanding the foregoing provisions of this Section 7.7, if any Mortgagee is prohibited from commencing or prosecuting foreclosure or other appropriate proceedingsin thenaturethereofby any injunction issuedby any court or by reasonof any action by any court having jurisdiction of any bankruptcy or insolvency proceedinginvolving Developer, the times specifiedin Section7.7.4 for commencingor prosecutingforeclosureor otherproceedingsshall be extended for the period of the prohibition. In addition, if this Agreement is rejected or otherwise terminated in connectionwith any suchproceeding, then upon the requestof any mortgagee, a new developmentagreementuponthesametermsandconditionssetforth in this Agreementmaybeentered into betweensuchMortgageeand City.
7. 7. 6 Termination Subject to Mortgageeee Rights. All rights of the City to terminate this Agreement, vis- a-vis the Mortgagee, as a result of the occurrence of any default shall be subject to, and conditioned upon, the City having first given to each Mortgagee written notice of the default as required under Section 7.7.4 above, and all Mortgagees having failed to remedy such default or acquireDeveloper'sinterestshereunder, or havingfailed to commenceforeclosureor otherappropriate proceedings in the nature thereof as set forth in Section 7. 7. 4 above.
7. 7. 7 No Cancellation. There shall be no cancellation, surrender or modification of this Agreementby joint action of the Partieswithout a minimum of ninety (90) daysprior written notice to each Mortgagee who has requested such notice.
7. 7. 8 Reserved.
7. 7. 9 Separate Agreement. The City shall, upon request, execute, acknowledge and deliver to each Mortgagee an agreement prepared at the sole cost and expense of the Developer including relatedlegal fees incurred by the City), in form satisfactoryto eachMortgageeand City, between City, Developer and the Mortgagee( s), confirming all of the provisions hereof and/or such other documentscontaining terms and provisions customarily required by Institutional Lenders in connection with suchfinancing, provided, however, the City shall not be obligated to approveany termsthat would impair or adverselyaffect the rights andobligationsof the City, or otherwiseamend this Agreement and/ or the obligations of the Developer as set forth in this Agreement
7. 7. 10 Material Notices. The Developer shall give all Mortgageesnotice of any Litigation andthe partieshereby consentto intervention in suchLitigation by the Mortgagee. In the event any Mortgagee shall not elect to intervene or become a party to the proceedings, such Mortgagee shall be provided notice and a copy of any award or decision made in connection therewith.
7. 7. 11 Mortgagee Right to Assign. Foreclosureof any Mortgage, or any sale thereunder, whetherby judicial proceedingsor by virtue of anypower containedin the Mortgage, or any conveyanceof the interestof Developerhereunderto anyMortgageeor its designeethrough, or in lieu of, foreclosure or other appropriate proceedings in the nature thereof, shall not require the consent of the City or constitute a breach of any provision of or a default under this Agreement; and upon such foreclosure, saleor conveyance, the City will recognizethepurchaseror othertransfereein connection therewith as the Developer hereunder, provided that City has received full payment of One Hundred Twelve Thousand Dollars ($ 112,000.00) as the Affordable Housing Payment.
7. 8 Covenants. The provisions of this Agreement shall constitute covenants which run with the land comprisingthe Propertyfor the benefit thereof andasa burdenthereon, andtheburdens 15 and benefits hereof shall bind and inure to the benefit of all assignees, transferees and successors to the parties.
7. 9 Implementation. Upon satisfactory completion by Developer of all required applications and payment of applicable Processing Fees and Charges, including the fee for processing this Agreement, if Developer proceeds with the Project, the City and Developer shall commence and diligently process all required steps necessary for the implementation of this Agreement and development of the Project in accordance with the terms of this Agreement. Developer shall, in a timely manner, provide the City with all documents, plans and other information necessary for the City to carry out its processing obligations hereunder.
7. 10 Relationship of the Parties. It is specifically understood and agreed by and between the Partiesheretothat the Project is a private development, that neitherParty is acting asthe agentof theotherin anyrespecthereunder, andthat eachPartyis anindependentcontractingentity with respect to the terms, covenants and conditions contained in this Agreement. The only relationship between the City and the Developer is that of a government entity regulating the development of private property and the owner of such private property. Further, the City and Developer hereby renounce the existenceof any form of joint ventureor partnershipbetweenthemandagreethatnothing herein or in any documentexecutedin connectionherewith shall be construedasmaking the City and Developer joint venturers or partners.
7. 11 Cooperation in the Event of Third Party Litigation. In the event legal action is institutedby athird party, including anyother governmentalentity or official challengingthe validity or enforceability of any provision of this Agreement, or the Existing Approvals vested pursuant to this Agreement, other actions taken pursuant to CEQA, or any other action by either Party in properly performing hereunder, the Parties hereby agree to affirmatively cooperate with each other in defending said action and the validity of each provision of this Agreement; provided, however, that Developer agrees to and shall defend, indemnify, save and hold the City and its elected and appointed representatives, boards, commissions, offices, agents, employees, consultants and attorney' s collectively, the " City" in this Section 7.11) harmless from any and all claims, costs and liability, including without limitation, court costsand attorneys' feesawardedto any party, to the extent they result from anysuchLitigation, andshallreimbursetheCity for its actualcostsin defenseof the action or proceeding, including, but not limited to the time and expensesof the City Attorney' s Office and any consultants. As the indemnifying Party and provided that Developer demonstratesto City, to City' s reasonablesatisfaction, that Developer has the financial wherewithal to indemnify the City hereunderat the time of any such Litigation, Developer shall at all times retain final authority and control over all documents to be filed in such Litigation and notwithstanding the provisions of this Section 7. 11, the City shall be deemed to have waived its rights to be indemnified hereunder if the City settles any Litigation, in whole or in part, or files any documents in such Litigation without Developer' s prior written approval, which approval shall not be unreasonably withheld. This section shall survive any judgment invalidating all or any part of this Agreement. The Developer shall be entitled to choose legal counsel to defend against any such legal action and shall pay any attorneys' fees awarded against the City or the Developer, or both, resulting from any such legal action. The Developer shall be entitled to any award of attorneys' fees arising out of any such legal action.
7. 12 Notices. Any notice or communication required hereunder between the City and Developer must be in writing, and may be given either personally, by registered or certified mail, return receipt requested or by overnight courier. If given by registered or certified mail, the same shall be deemedto havebeen delivered and received on the first to occur of (i) actual receipt by any of the 16 addresses designated below as the Party to whom notices are to be sent, or ( ii) five ( 5) days after a registered or certified letter containing such notice, properly addressed, with postage prepaid, is deposited in the United States mail. If personally delivered or delivered by courier, a notice shall be deemedto havebeendeliveredwhen receivedby the Partyto whom it is addressed. Any Partyhereby may at any time, by giving ten (10) day's written'notice to the otherPartyhereto, designateanyother addressin substitution of the address, or any additional address, to which such notice or communication shall be given. Such notices or communications shall be given to the Parties at their addresses set forth below:
If to City:
City Clerk
City of Anaheim
200 South Anaheim Blvd., 2nd Floor
If to Developer:
Melia Homes, Inc.
8951 Research Drive, Suite 100
Irvine, CA 92618
With a copy to:
City Attorney
City of Anaheim
200 South Anaheim Blvd., Suite 356
Anaheim, CA 92805
7. 13 Recordation. The City' s Clerk shall record a copy of this Agreement with the Registrar -Recorder of Orange County within ten ( 10) business days following the later to occur of ( i) execution by both parties, or ( ii) the Effective Date of the Authorizing Ordinance. To the extent that the Property consistsof property under Leaseby Developer, this Agreementshall encumberonly the leasehold interest and shall not constitute an encumbrance upon the estate in fee.
7. 14 DeveloperHold Harmless. Developerherebyagreesto andshall indemnify, save, hold harmless and defend the City, and its elected and appointed representatives, boards, commissions, officers, agents, employees, consultants and attorneys ( collectively, the " City" in this Section 7. 14), from any and all claims, costs, and liability of any kind which may arise, directly or indirectly, from any of Developer' s acts or omissions under, related to, or in any respect connected with this Agreement and/or the development, of the Property and/or the Project, and/or Developer's activities on the Property ( or the activities of the Developer' s employees, contractors, subcontractors, agents, representatives, or independent contractors on the Property), including without limitation the construction of the Project. Nothing in this Section shall be construed to mean that Developer shall hold the City harmlessand/or defendit to the extentthat suchclaims, costsor liability arisefrom the negligentacts, or negligentfailure to act, onthepart of theCity. City agreesthat it shall fully cooperate with Developerin the defenseof any matterin which Developeris defendingand/or holding the City harmless and at no cost to City. Notwithstanding anything in this Agreement which is or appears to be to the contrary, the obligations set forth herein shall survive the Term, termination or earlier expiration of this Agreement.
7. 15 Successors and Assigns. Subject to the limitations on transfer set forth in this Agreement, all of the provisions, agreements, rights, powers, standards, terms, covenants and obligations contained in this Agreement shall be binding upon and shall inure to the benefit of the Parties, and their respective successors ( by merger, consolidation or otherwise), assigns and 17 transferees, and all persons or entities acquiring the Property or any portion thereof or any interest therein, whetherby sale, operationof law, or in anymannerwhatsoever.
7. 16 Severability. If any provisions, conditions, or covenants of this Agreement, or the application thereof to any circumstances of either Party, shall be held invalid or unenforceable, the remainder of this Agreement or the application of such provision, condition, or covenant to persons or circumstances other than those as to whom or which it is held invalid or unenforceable shall not be affected thereby and shall be valid and enforceable to the fullest extent permitted by law.
7. 17 Waiver. No waiver of any provision of this Agreement shall be effective unless in writing and signed by the Party against whom enforcement of a waiver is sought and such waiver refers expressly to the Section containing the waived provision. No waiver of any right or remedy in respect of any occurrence or event shall be deemed a waiver of any right or remedy in respect of any other occurrence or event.
7. 18 Third Party Beneficiaries. There are no third party beneficiaries to this Agreement and this Agreementis not intended, and shall not be construedto benefit or be enforceableby any other persons or entities other than the Parties.
7. 19 Expedited Processing. Developer and City agree to cooperate in the expedited processing of any legal action seeking mandamus, specific performance, declaratory relief or injunctive relief, to set court dates at the earliest practicable date(s) and not causedelay in the prosecution/ defense of the action, provided such cooperation shall not require any Party to waive any rights.
7. 20 Requests for Payment. Except for the Affordable Housing Payment, with respect to any requests by the City for payment of amounts due under this Agreement, Developer retains its right to review any invoices or requestsfor paymentssubmittedby the City pursuantto this Agreement.
Developer shall review and reasonably approve such invoices or requests for payment or shall identify any disputed amounts within thirty ( 30) days after receipt. At Developer' s request, the City shall provide Developer with reasonable information or back- up materials supporting such invoices or requestsfor paymentat City offices, with reasonablenotice, duringbusinesshours. In theeventof any disputed invoices or requests for payment, Developer shall timely pay all amounts not disputed.
7. 21 Entire Agreement. This Agreement and the documents, agreements and exhibits referenced herein or attached hereto set forth and contain the entire understandings and agreements of the parties, and there are no oral or written representations, understandings or ancillary covenants, undertakings or agreements which are not contained or expressly referred to herein .and no testimony or evidence of any such representations, understandings, or covenants shall be admissible in any proceedings of any kind or nature to interpret or determine the provisions or conditions of this Agreement.
7. 22 Conflict of Laws. With the exception of the Force Majeure provisions set forth in Section 7.3 hereof, it is agreedby the Partiesthat the obligations and conditions containedin the Applicable Rules, Existing Approvals and Mitigation Measures govern the development of the Property. To the extent that any provisions of this Agreement may conflict with any of the obligations, conditions or mitigations imposed on Developer pursuant to the Existing Approvals and Mitigation Measures, the Existing Approvals and Mitigation Measures shall govern. 18 7. 23 Legal Advice; Neutral Interpretation; Headings and Table of Contents. Each Party has receivedindependentlegal advice from its attorneyswith respectto the advisability of executingthis Agreement and the meaning of the provisions hereof. The provisions of this Agreement shall be construed as to their fair meaning, and not for or against any Party based upon any attribution to such Party as the source of the language in question. The headings and table of contents used in this Agreement are for the convenience of reference only and shall not be used in construing this Agreement.
7. 24 Counterparts. This Agreement is executed in six duplicate originals, each of which is deemed to be an original.
7. 25 Organizationand Standingof Developer. Developeris a corporationduly organized, qualified and validly existing and in good standing under the laws of the State of California, and has all requisite power and authority to enter into and perform its obligations under this Agreement. All consents or approvals of Developer' s officers or directors required in connection with the execution anddelivery by theDeveloperof this Agreementwill havebeenobtainedanddeliveredto the City.
Remainder of page intentionally left blank. Signatures appear on next page.] 19 IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as of the date first written below.
CITY"
CITY OF ANAHEIM,
a municipAl corporation and charter city
APPROVED AS TO FORM:
Z:)N " / o'
Robert Fabe
4 ofZS . 1
City Attorneyy
l/
S- 1
143269v2 / LHM
DEVELOPER"
MELIA HOMES, INC.,
a California corporation
By:
Bernard J. Delz r
Its: CEO
By:
Tim McSunas
Its: President
S- 2
A notary public or otherofficer completingthis certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document.
STATE OF CALIFORNIA )
ss.
COUNTY OF ocac E )
On Ss' t8>= Q. zq, zoo , before me, SQL./! c„,» , Notary Public, Pint Name of Notary Public)
personally appeared — IS. b-- 13---13Sr -
who proved to meon thebasisof satisfactoryevidenceto be the personVwhose name is/afe-subscribedto the within instrument and acknowledged to me that he/s4e4hey executed the same in his/ Lerlth it authorized capacity{ is), and that by hisA+ ef4heir signature(; o on the instrument the person(, or the entity upon behalf of which the person( acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the Stateof California that the foregoing paragraph is true and correct.
my
SYLVIA SOWAH
Notary Public - California
Orange County
Commission k 2337511
1 On
Comm. Expires Nov 16, 2024
WITNESS my hand and official seal.
OPTIONAL
Though the data below is not required by law, it may prove valuable to personsrelying on the document and could prevent fraudulent reattachment of this form,
CAPACITY CLAIMED BY SIGNER DESCRIPTION OF ATTACHED DOCUMENT Individual
Corporate Officer
Title Or Type Of Document
Title( s)
Partner( s) Limited General
Attorney - In -Fact
Trustee( s) Number Of Pages
Guardian/ Conservator
Other:
Signer is representing: Date Of Documents
Name Of Person( s) Or Entity( ies)
Signer( s) Other Than Named Above
A notarypublic or otherofficer completingthis certificateverifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document.
STATE OF CALIFORNIA )
ss.
COUNTY OF po-&. J _cue )
On 2- 1 , before me, S L-%/ rA NA , Notary Public,
Print Name ofNotary Public)
personally appeared ` M McS ar` 1>A
whoprovedto meonthebasisof satisfactoryevidencetobetheperson(4 whosename(o is/afi -subscribedtothe within instrumentandacknowledgedto methat he4she4heyexecutedthe samein his4io4gw4rauthorized capacity( ies), and that by his/ I3ef4Heir signature
on the instrument the
persono, or the entity upon behalf of
which the
person
acted, executed the instrument.
I certify underPENALTY OF PERJURYunderthe lawsof the Stateof Californiathatthe foregoing paragraph is true and correct.
my
SYLVIASOWAH
Notary Public - California
Orange County
Commission # 1337511
Comm. Expires Nov 16, 1024
WITNESS my hand and official seal.
OPTIONAL
Thoughthedatabelowisnotrequiredby law, it mayprovevaluabletopersonsrelyingonthedocumentandcouldpreventfraudulent reattachment of this form.
CAPACITY CLAIMED BY SIGNER
Individual
Corporate Officer
Titles)
Partner( s) Limited General
Attorney - In -Fact
Trustee( s)
Guardian/ Conservator
Other:
Signer is representing:
Name Of Person(s) Or Entity( ies)
DESCRIPTION OF ATTACHED DOCUMENT
Title Or Type Of Document
Number Of Pages
Date Of Documents
Signer( s) Other Than Named Above
EXHIBIT " A"
DEV NO. 2020- 00180
o so ioa
Feet
Vf
K
W
z
z
O
U
N
W BROADWAY
A- 1
r._.._.._.._.._ .........
2 u
3 z
LUW
W MESSERSMITH AVE
Source: Recorded Tract Maps and/ or City GIS.
Please note the accuracy is +/- two to five feet.
EXHIBIT B
LEGAL DESCRIPTION
THE LAND REFERRED TO HEREIN BELOW IS SITUATED IN THE CITY OF
ANAHEIM IN THE COUNTY OF ORANGE, STATE OF CALIFORNIA, AND IS DESCRIBED AS FOLLOWS:
PARCEL 1:
THAT PORTION OF SECTION 18, TOWNSHIP 4 SOUTH, RANGE 10 WEST, IN THE RANCHO LOS COYOTES, AS SHOWN ON A MAP RECORDED IN BOOK 51, PAGE 10 OF MISCELLANEOUS MAPS, RECORDS OF ORANGE COUNTY, CALIFORNIA, DESCRIBED AS FOLLOWS:
BEGINNING AT A POINT ON THE SOUTH LINE OF THE NORTHWEST QUARTER OF THE NORTHEAST QUARTER OF SAID SECTION 18, DISTANT NORTH 88° 58' 15" EAST 865. 95 FEET FROM THE SOUTHWEST CORNER OF THE NORTHWEST QUARTER OF SAID NORTHEAST QUARTER; THENCE NORTH 0° 21' 00" WEST 666. 49 FEET TO A POINT ON THE NORTH LINE OF THE SOUTH HALF OF THE NORTHWEST QUARTER OF SAID NORTHEAST QUARTER; THENCE NORTH 88° 58' 07" EAST 225. 70 FEET ALONG SAID NORTH LINE TO A POINT SOUTH 880 58' 07" WEST 230. 60 FEET FROM THE NORTHEAST CORNER OF THE SOUTH HALF OF THE NORTHWEST QUARTER OF SAID NORTHEAST QUARTER; THENCE SOUTH 00 18' 10" EAST 666. 50 FEET TO A POINT ON THE SOUTH LINE OF THE
NORTHWEST QUARTER OF SAID NORTHEAST QUARTER, SAID POINT BEING DISTANT SOUTH 880 58' 15" WEST 1548. 50 FEET FROM THE SOUTHEAST CORNER OF THE NORTH HALF OF SAID NORTHEAST QUARTER; THENCE SOUTH 880 58' 15" WEST 225. 15 FEET TO THE POINT OF BEGINNING.
EXCEPT ALL OIL, OIL RIGHTS, MINERALS, MINERAL RIGHTS, NATURAL GAS,
NATURAL GAS RIGHTS, AND OTHER HYDROCARBONS BY WHATSOEVER
NAME KNOWN THAT MAY BE WITHIN OR UNDER THE LAND, TOGETHER WITH
THE PERPETUAL RIGHT OF DRILLING, MINING, EXPLORING AND OPERATING
THEREFOR AND REMOVING THE SAME FROM SAID LAND OR ANY OTHER
LAND, INCLUDING THE RIGHT TO WHIPSTOCK OR DIRECTIONALLY DRILL AND
MINE FROM LAND OTHER THAN THAT HEREINABOVE DESCRIBED, OIL OR GAS
WELLS, TUNNELS AND SHAFTS, INTO, THROUGH, OR ACROSS THE
SUBSURFACE OF THE LAND, AND TO BOTTOM SUCH WHIPSTOCKED OR
DIRECTIONALLY DRILLED WELLS, TUNNELS AND SHAFTS UNDER AND
BENEATH OR BEYOND THE EXTERIOR LIMITS THEREOF, AND TO REDRILL,
RETUNNEL, EQUIP, MAINTAIN, REPAIR, DEEPEN AND OPERATE ANY SUCH
WELLS OR MINES, WITHOUT, HOWEVER, THE RIGHT TO DRILL, MINE, EXPLORE AND OPERATE THROUGH THE SURFACE OR THE UPPER 500 FEET OF
THE SUBSURFACE AS EXCEPTED IN DEED FROM ELIZABETH ANN RALSTON, A
MARRIED WOMAN, WHO ACQUIRED TITLE AS ELIZABETH ANN CARROLL, RECORDED JULY 28, 1960 IN BOOK 5349, PAGE 18 OF OFFICIAL RECORDS OF ORANGE COUNTY, CALIFORNIA.
PARCEL 2:
THAT PORTION OF SECTION 18, TOWNSHIP 4 SOUTH, RANGE 10 WEST, IN THE RANCHO LOS COYOTES, AS SHOWN ON A MAP RECORDED IN BOOK 51, PAGE 10 OF MISCELLANEOUS MAPS, RECORDS OF ORANGE COUNTY, CALIFORNIA, DESCRIBED AS FOLLOWS:
BEGINNING AT A POINT ON THE SOUTH LINE OF THE NORTHWEST QUARTER OF THE NORTHEAST QUARTER OF SAID SECTION 18, DISTANT NORTH 880 58' 15" EAST 109 1. 10 FEET FROM THE SOUTHWEST CORNER OF THE NORTHWEST QUARTER OF SAID NORTHEAST QUARTER; THENCE NORTH 0° 18' 10" WEST 666. 50 FEET TO A POINT ON THE NORTH LINE OF THE SOUTH HALF OF THE NORTHWEST QUARTER OF SAID NORTHEAST QUARTER; THENCE NORTH 88° 58' 07" EAST 230. 60 FEET TO THE NORTHEAST CORNER OF THE SOUTH HALF OF THE NORTHWEST QUARTER OF SAID NORTHEAST QUARTER; THENCE SOUTH 00 08' 25" EAST 666. 51 FEET TO THE SOUTHEAST CORNER OF THE SOUTH HALF OF THE NORTHWEST QUARTER OF SAID NORTHEAST QUARTER; THENCE SOUTH 880 58' 15" WEST 228. 70 FEET TO THE POINT OF BEGINNING.
EXCEPT ALL OIL, OIL RIGHTS, MINERALS, MINERAL RIGHTS, NATURAL GAS,
NATURAL GAS RIGHTS, AND OTHER HYDROCARBONS BY WHATSOEVER
NAME KNOWN THAT MAY BE WITHIN OR UNDER THE LAND TOGETHER WITH
THE PERPETUAL RIGHT OF DRILLING, MINING, EXPLORING AND OPERATING
THEREFOR AND REMOVING THE SAME FROM SAID LAND OR ANY OTHER
LAND, INCLUDING THE RIGHT TO WHIPSTOCK OR DIRECTIONALLY DRILL AND
MINE FROM LAND OTHER THAN THOSE HEREINABOVE DESCRIBED, OIL OR
GAS WELLS, TUNNELS AND SHAFTS, INTO, THROUGH, OR ACROSS THE
SUBSURFACE OF THE LAND, AND TO BOTTOM SUCH WHIPSTOCKED OR
DIRECTIONALLY DRILLED WELLS, TUNNELS AND SHAFTS UNDER AND
BENEATH OR BEYOND THE EXTERIOR LIMITS THEREOF, AND TO REDRILL,
RETUNNEL, EQUIP, MAINTAIN, REPAIR, DEEPEN AND OPERATE ANY SUCH
WELLS OR MINES, WITHOUT, HOWEVER, THE RIGHT TO DRILL, MINE, EXPLORE AND OPERATE THROUGH THE SURFACE OR THE UPPER 500 FEET OF
THE SUBSURFACE AS EXCEPTED IN DEED FROM MORRIS CARROLL, A SINGLE MAN, RECORDED JULY 28, 1960 IN BOOK 5348, PAGE 547 OF OFFICIAL RECORDS OF ORANGE COUNTY, CALIFORNIA.
APN: 127- 051- 43