ORDINANCE NO. XXXX
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF
FULLERTON, CALIFORNIA, APPROVING A DEVELOPMENT
AGREEMENT FOR THE PINES AT SUNRISE VILLAGE ON A 12.52 -
ACRE PROPERTY LOCATED ON THE SOUTHWEST CORNER OF
EUCLID STREET AND ROSECRANS AVENUE
PRJ2021-00006 – ZON-2021-0032, SUB -2021-0002, LRP -2021-0006, LRP-2021-0007, LRP-2021-0008
APPLICANT: SHOPOFF REALTY INVESTMENTS, L.P.
PROPERTY OWNER: SUNRISE VILLAGE OWNER, LLC.
WHEREAS, the applicant filed applications with the City of Fullerton Community and Economic Development Department for a Major Site Plan (ZON -2021-0032), Tentative Tract Map (SUB - 2021-0002), General Plan Revision (LRP-2021-0006), Zoning Amendment (LRP-2021-0007) and Development Agreement (LRP -2021-0008) for construction of a 113 dwelling unit residential community, including 49 detached single- family residential homes and 64 townhomes, retention of an existing 4 ,000 commercial building and construction of 19,000 square feet of new commercial space on property more specifically described as Orange County Assessor’s Parcel Nos. 287-241-01, -04 and -06 (Lot 1 of Lot Line Adjustment No. 207, in the City of Fullerton, County of Orange, State of California, recorded September 12, 2021 as Instrument No. 2021000509353 of Official Records in the office of the County Recorder of said county; Together with Parcel 4, in the City of Fullerton, County of Orange, State of California as shown on a map filed in Book 88, Page 50 of Parcel Maps in said office of the County Recorder.).
WHEREAS the Planning Commission of the City of Fullerton, in compliance with the noticing requirements of Fullerton Municipal Code (FMC) Chapter 15.76, held a duly noticed public hearing for PRJ-2021-00006.
WHEREAS California Government Code Sections 65864- 65869.5 (“Development Agreement Statute”), authorizes the City to enter into development agreements with persons or entities having a legal or equitable interest in real property located within their jurisdiction to encourage investment in, and commitment to, comprehensive planning and public facilities financing, strengthen the public planning process and encourage private implementation of the general plan, provide certainty in the approval of projects to avoid waste of time and resources and reduce the economic costs of development by providing the applicant with assurance that the development of the Project may proceed subject to the rules and regulations in effect at the time of Project approval.
WHEREAS, Government Code Section 65867 requires a Planning Commission recommendation to the City Council for a Development Agreement.
WHEREAS the Planning Commission of the City of Fullerton recommended that City Council approve PRJ2021-00006 including Major Site Plan (ZON-2021-0032), Tentative Tract Map (SUB- 2021-0002), General Plan Revision (LRP-2021-0006), Zoning Amendment (LRP-2021-0007) and Development Agreement (LRP-2021-0008).
WHEREAS, the City of Fullerton, as Lead Agency, prepared an Initial Study / Mitigated Negative Declaration to identify the potential environmental impacts associated with construction and implementation of the project in conformance with the provisions of the California Environmental Quality Act (CEQA) (California Public Resources Code, Sections 21000 et seq.) and CEQA Guidelines (California Code of Regulations, Title 14, Chapter 3, Section 15000 et seq.).
WHEREAS, the Planning Commission and City Council considered the information contained in the Draft Initial Study / Mitigated Negative Declaration dated August 2021 and Technical Appendices, the Final Initial Study including Comments, Responses to Comments and Errata dated September 2021, the Mitigation Monitoring and Reporting Program and the administrative record during the public review process.
WHEREAS, the City has analyzed revised project under the California Environmental Quality A ct (CEQA) to determine if the revised project would constitute a substantial revision of the negative declaration and whether the project would result in any new or unavoidable significant effects. Upon review, the proposed Project revisions will not result in any new Project impacts or increase the severity of a previously identified significant impact as discussed in The Pines at Sunrise Village IS / MND. Consistency analysis finds that the original Initial Study adequately addressed potential impacts of the Project with site plan changes under consideration.
NOW THEREFORE, THE CITY COUNCIL OF THE CITY OF FULLERTON ORDAINS AS FOLLOWS:
1. In all respects as set forth in the Recitals of the Ordinance.
2. City Council, pursuant to Government Section 65867.5(b) finds as follows:
Finding: That the provisions of the agreement are consistent with the General Plan.
Fact: The project will provide for infill residential development on an underutilized commercial retail parcel with a vacancy rate of approximately 45%, introducing new housing options that are compatible in height and scale with the site and its surroundings near exiting single- and multi-family residential communities and neighborhood serving commercial uses in the City.
Fact: Facilitating the addition of dwelling units in areas with existing infrastructure is consistent with State and local housing goals that emphasize the need for increased housing production across all income levels and the City’s goals for growth aligned with infrastructure capabilities.
3. City Council does hereby approve said Development Agreement LRP -2021-0008, subject to the following conditions of approval:
1. Approval of this application is contingent on the approval of Major Site Plan (ZON - 2021- 0032), Tentative Parcel Map (SUB -2021-0002), General Plan Revision (LRP - 2021-0006) and Zoning Amendment (LRP-2021-0007). Denial of any of the foregoing shall similarly deny this Development Agreement (LRP-2021-0008). The effects of this ordinance shall occur on the earliest day upon which all these entitlements and this ordinance can be effective.
2. The applicant shall agree to indemnify, hold harmless and defend the City of Fullerton, its officers, agents and employees, from any and all liability or claims that may be brought against the City arising out of its approval of this Ordinance, save and except that caused by the City’s active negligence.
ADOPTED BY THE FULLERTON CITY COUNCIL ON JANUARY 3, 2023.
Fred Jung
Mayor
ATTEST:
Lucinda Williams, MMC
City Clerk
Date
Attachments:
• Attachment 1 – Draft Development Agreement
10/31/2022
RECORDING REQUESTED BY
AND WHEN RECORDED RETURN TO:
City of Fullerton
303 W. Commonwealth Avenue
Fullerton, CA 92832
Attn: City Clerk
(Space Above This Line Is for Recorder’s Use Only)
This Agreement is recorded at the request and for
the benefit of the City of Fullerton and is exempt
from the payment of a recording fee pursuant to
Government Code §§ 6103 and 27383.
DEVELOPMENT AGREEMENT
between
CITY OF FULLERTON
and
SUNRISE VILLAGE OWNERS, LLC
CONCERNING THE PINES AT SUNRISE VILLAGE
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TABLE OF CONTENTS
1. Definitions......................................................................................................................... 2
2. General Provisions. ........................................................................................................... 6
2.1 Plan Consistency, Zoning Implementation. .......................................................... 6
2.2 Binding Effect of Agreement. ............................................................................... 6
2.3 Developer Representations and Warranties Regarding Ownership of the Property and Related Matters Pertaining to this Agreement. ............................... 6
2.4 Term. ..................................................................................................................... 6
3. Public Benefits. ................................................................................................................. 7
3.1 Developer to Provide Public Benefits. .................................................................. 7
3.2 Bond Financing of Public Improvements and Fees. ............................................. 8
4. Development of Project. ................................................................................................... 8
4.1 Applicable Regulations; Developer’s Vested Rights and City’s Reservation of Discretion With Respect to Subsequent Development Approvals. ............................................................................................................. 8
4.2 No Conflicting Enactments. .................................................................................. 9
4.3 Reservations of Authority. .................................................................................... 9
4.4 Tentative Subdivision Maps. .............................................................................. 12
4.5 Sourcing of Sales Tax ......................................................................................... 12
5. Amendment or Cancellation of Agreement. ................................................................... 12
5.1 Extension............................................................................................................. 12
6. Enforcement. ................................................................................................................... 12
7. Annual Review of Developer’s Compliance With Agreement. ...................................... 13
7.1 General. ............................................................................................................... 13
7.2 Developer Obligation to Demonstrate Good Faith Compliance. ........................ 13
7.3 Procedure. ........................................................................................................... 13
7.4 Annual Review a Non-Exclusive Means for Determining and Requiring Cure of Developer’s Default. .............................................................................. 13
8. Events of Default. ........................................................................................................... 14
8.1 General Provisions. ............................................................................................. 14
8.2 Default by Developer. ......................................................................................... 14
8.3 City’s Option to Terminate Agreement. ............................................................. 14
8.4 Default by City. ................................................................................................... 14
8.5 Waiver. ................................................................................................................ 15
8.6 Specific Performance Remedy. ........................................................................... 15
8.7 Monetary Damages. ............................................................................................ 15
8.8 Additional City Remedy for Developer’s Default. ............................................. 15
8.9 No Personal Liability of City Officials, Employees, or Agents. ........................ 16
8.10 No Recovery of Legal Expenses by Prevailing Party in Any Action. ................ 16 12/22/22
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9. Force Majeure. ................................................................................................................ 16
10. Indemnity Obligations of Developer. ............................................................................. 16
10.1 Indemnity Arising From Acts or Omissions of Developer. ................................ 16
10.2 Third Party Litigation. ........................................................................................ 16
10.3 Environmental Indemnity. .................................................................................. 17
11. Assignment. .................................................................................................................... 17
12. Mortgagee Rights. ........................................................................................................... 19
12.1 Encumbrances on Property. ................................................................................ 19
12.2 Mortgagee Protection. ......................................................................................... 19
12.3 Mortgagee Not Obligated. .................................................................................. 19
12.4 Notice of Default to Mortgagee; Right of Mortgagee to Cure............................ 19
13. Miscellaneous Terms. ..................................................................................................... 20
13.1 Notices. ............................................................................................................... 20
13.2 Project as Private Undertaking............................................................................ 20
13.3 Cooperation. ........................................................................................................ 21
13.4 Estoppel Certificates. .......................................................................................... 21
13.5 Rules of Construction. ........................................................................................ 21
13.6 Time Is of the Essence. ....................................................................................... 21
13.7 Waiver. ................................................................................................................ 21
13.8 Counterparts. ....................................................................................................... 21
13.9 Entire Agreement. ............................................................................................... 22
13.10 Severability. ........................................................................................................ 22
13.11 Construction. ....................................................................................................... 22
13.12 Successors and Assigns; Constructive Notice and Acceptance. ......................... 22
13.13 No Third Party Beneficiaries. ............................................................................. 23
13.14 Applicable Law and Venue. ................................................................................ 23
13.15 Section Headings. ............................................................................................... 23
13.16 Incorporation of Recitals and Exhibits. .............................................................. 23
13.17 Recordation. ........................................................................................................ 23
13.18 Operating Memoranda. ....................................................................................... 24
1 DEVELOPMENT AGREEMENT
(Pursuant to California Government Code sections 65864-65869.5) This DEVELOPMENT AGREEMENT (the “ Agreement”) is dated for reference purposes as of the __ day of _______________, 2022 (the “Agreement Date” ), and is being entered into by and between the CITY OF FULLERTON (“City”), and Sunrise Village Owners, LLC, a Delaware limited liability company (“Developer”). City and Developer are sometimes collectively referred to in this Agreement as the “Parties” and individually as a “Party.”
RECITALS
A. Developer is the owner in fee title of that certain real property located in the City of Fullerton, County of Orange, State of California commonly referred to as The Pines at Sunrise Village, located at 1715/1723 Euclid Street, and 1701/1751/1801-1900 Euclid Street (Assessor Parcel Number s (“APN”) 287-241-07, 287-241- 08, and 287-241-09), generally bordered by Rosecrans Avenue on the north, Paseo Dorado on the south, Euclid Street on the east, and Camino Loma on the west , as described and depicted in the legal descri ption attached hereto as Exhibit A (the “Property”). Upon the recording of a final map for Tentative Tract Map 19148 (“TTM 19148”), the Development Agreement shall encumber only Lots 1 and 2 of the final map for TTM 19148.
B. I n order to encourage invest ment in, and commitment to, comprehensive planning and public facilities financing, strengthen the public planning process and encourage private implementation of the local general plan, provide certainty in the approval of projects in order to avoid waste of time and resources, and reduce the economic costs of development by providing assurance to property owners that they may proceed with projects consistent with existing land use policies, rules, and regulations , the California Legislature adopted California Government Code sections 65864 -65869.5 (the “Development Agreement Statute ”) authorizing cities and counties to enter into development agreements with persons or entities having a legal or equitable interest in real property located within their jurisdiction.
C. This Agreement is consistent with the Development Agreement Statute.
D. A s detailed in Article 3 of this Agreement and the Development Plans (as defined herein), the Project provides the public benefits as shown in Exhibit C.
E. This Agreement is consistent with the City of Fullerton General Plan, including without limitation the General Plan Revision designating the Property as “Low/Medium Density Residential” and the Zoning Amendment to “ Planned Residential Development Infill (PRD -I)”, that were adopted and approved by the City Council concurrently with its approval of this Agreement in order to establish appropriate zoning to regulate land use and development of the Property consistent with the General Plan.
F. In recognition of the public benefits that this Agreement provides, the City Council has found that this Agreement: (i) is consistent with the City of Fullerton General Plan as of the date of this Agreement; (ii) is in the best interests of the health, safety, and general welfare of City , its residents, and the public; (iii) is entered into pursuant to, and constitutes a present exercise of, City’s police power; (iv) is consistent and has been approved consistent with
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the Mitigated Negative Declaration prepared by the City of Fullerton that has been approved by the City Council on or before the Agreement Date, and which analyzes the environmental effects of the proposed development of the Project on the Property, and all of the findings, conditions of approval and mitigation measures rela ted thereto; and (v) is consistent and has been approved consistent with provisions of California Government Code section 65867.
G. On April 23, 2022, City’s Planning Commission held a public hearing on this Agreement, made findings and determinations with respect to this Agreement, and recommended to the City Council that the City Council approve this Agreement.
H. On June 21, 2022 and _____________, the City Council also held public hearings on this Agreement and considered the Planning Commission’ s recom mendations and the testimony and information submitted by City staff, Developer , and members of the public. On ______________, consistent with applicable provisions of the Development Agreement Statute, the City Council adopted its Ordinance No. ____ (the “ Adopting Ordinance ”), finding this Agreement to be consistent with the City of Fullerton General Plan and approving this Agreement.
AGREEMENT
NOW, THEREFORE, City and Developer agree as follows:
1. Definitions.
In addition to any terms defined elsewhere in this Agreement, the following terms when used in this Agreement shall have the meanings set forth below:
“ Action” shall have the meaning ascribed in Section 8.10 of this Agreement. “ Adopting Ordinance” means City Council Ordinance No. ____ approving and adopting this Agreement.
“ A greement ” means this Development Agreement, as the same may be amended from time to time.
“ A greement Date” means the date first written above, which date is the date the City Council adopted the Adopting Ordinance.
“ C EQA” means the California Environmental Quality Act (California Public Resources Code sections 21000-21177) and the implementing regulations promulgated thereunder by the Secretary for Resources (California Code of Regulations, Title 14, section 15000 et seq .), as the same may be amended from time to time.
“ C ity ” means the City of Fullerton , a California general law city, and any successor or assignee of the rights and obligations of the City of Fullerton hereunder. “C ity Council” mean s the governing body of City.
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“ City’s Affiliated Parties ” shall have the meaning ascribed in Section 10.1 of this Agreement.
“ C laim” shall have the meaning ascribed in Section 10.1 of this Agreement. “ Cure Period” shall have the meaning ascribed in Section 8.1 of this Agreement. “ Default” shall have the meaning ascribed to that term in Section 8.1 of this Agreement. “ Develop” or “Development” means to improve or the improvement of the Property for the purpose of completing the structures, improvements, and facilities comprising t he Project, including but not limited to: grading; the construction of infrastructure and public facilities related to the Project, whether located within or outside the Property; the construction of all of the private improvements and facilities comprising the Project; the construction of certain private improvements to the commercial areas shown as Parcel s 3, 6 and 7 on Exhibit B adjoining the Property required by the Project’s conditions of approval; the preservation or restoration, as required, of natur al and man -made or altered open space areas; and the installation of landscaping. The term s “ Develop” and “Development,” as used herein, do not include the maintenance, repair, reconstruction, replacement, or redevelopment of any structure, improvement, or facility after the initial construction and completion thereof. “ D
eveloper ” means Sunrise Village Owners, LLC, a Delaware limited liability company, and any successor or assignee to all or any portion of the right, title, and interest of Sunrise Village Owners, LLC, in and to ownership of all or a portion of the Property. “ D
evelopment Agreement Statute ” means California Government Code Sections 65864- 65869.5, inclusive.
“ D evelopment Exactions ” means any requirement of City in connection with or pursua nt to any ordinance, resolution, rule, or official policy for the dedication of land, the construction or installation of any public improvement or facility, or the payment of any fee or charge in order to lessen, offset, mitigate, or compensate for the impacts of Development of the Project on the environment or other public interests. The City’s normal fees for processing, environmental assessment and review, zone change applications, variances, master plan review, tentative tract and parcel map review, plan checking, site review and approval, administrative review, building permits, demolition permits, use permit, grading permit, inspection, and similar fees imposed to recover City’s costs associated with processing, reviewing, and inspecting project appli cations, plans, and specifications, including CEQA review, are not Development Exactions. “ D
evelopment Plan ” means all of the land use entitlements, approvals and permits approved by the City for the Project on or before the Agreement Date, as the same may be amended from time to time consistent with this Agreement. Such land use entitlements , approvals and permits include, without limitation, the following: (1) the Development rights as provided under this Agreement; (2) General Plan Revision (LRP -2021-0006); (3) Zoning Amendment (LRP-2021-0007); (4) TTM 19148 ( SUB-2021-0002); (5) Major Site Plan (ZON - 2021-0032); (6) Initial Study/Mitigated Negative Declaration for PRJ -2021-00006; and ( 7) all conditions of approval and all mitigation measures approved for the Project on or before the Agreement Date.
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“ Development Regulations” means the following regulations as they are in effect as of the Effective Date and to the extent they govern or regulate the development of the Property, but excluding any amendment or modification to the Development Regulations adopted, approved, or imposed after the Effective Date that impairs or restricts Developer ’s rights set forth in this Agreement, unless such amendment or modification is expressly authorized by this Agreement or is agreed to by Developer in writing: the General Plan Revision and Zoning Amendment approved concurrently with this Agreement; the Development Plan; and, to the extent not expressly superseded by the Development Plan or this Agreement, all other land use and subdivision regulations governing the permitted uses, density and intensity of use, design, improvement, and construction standards and specifications, procedures for obtaining required City permits and approvals for development, and similar matters that may apply to Development of the Project on the Property during the Term of this Agreement that are set forth in Title 15 of the Municipal Code (zoning) and Title 16 of the Municipal Code (subdivisions ).
Notwithstanding the foregoing, t he term “Development Regulations,” as used herein, does not include any City ordinance, resolution, code, rule, regulation or official policy governing any of the following: (i) the conduct of businesses, professions, and trades ; (ii) taxes and assessments ; (iii) the co ntrol and abatement of nuisances; (iv) the granting of encroachment permits and the conveyance of rights and interests which provide for the use of or the entry upon public property; or (v) the exercise of the power of eminent domain.
“ E
ffective Date ” means the latest of all of the following occurring: (i) the date that is thirty (30) calendar days after the Agreement Date; ( ii) if a referendum concerning the Adopting Ordinance, the Development Plan, or any of the Development Regulations approved on or before the Agreement Date is timely qualified for the ballot and a referendum election is held concerning the Adopting Ordinance or any of such Development Regulations, the date on which the referendum is certified resulting in upholding and approving the Adopting Ordinance and such Development Regulations and becomes effective, if applicable; ( iii) if a lawsuit is timely filed challenging the validity or legality of the Adopting Ordinance, this Agreement, the Development Plan, and/or any of the Development Regulations approved on or before the Agreement Date, the date on which said challenge is finally resolved in favor of the validity or legality of the Adopting Ordinance, the Development Plan, this Agreement, and/or the applicable Development Regulations, whether such finality is achieved by a final non -appealable judgment, voluntary or involuntary dismissal (and the passage of any time required to appeal an involuntary dismissal), or binding written settlement agreement. Within ten (10) days after the Effective Date occurs, the Parties agree to cooperate in causing an appropriate instrument to be executed and recorded against the Property memorializing the Effective Date. “ E
nvironmental Laws ” means all federal, state, regional, county, municipal, and local laws, statutes, ordinances, rules, and regulations which are in effect as of the Agreement Date, and all federal, state, regional, county, municipal, and local laws, statutes, rules, ordinances, rules, and regulations which may hereafter be enacted and which apply to the Property or any part thereof, pertaining to the use, generation, storage, disposal, release, treatment, or removal of any Hazardous Substances, including without limitation the following: the Comprehensive Environmental Response Compensation and Liability Act of 1980, 42 U.S.C. Sections 9601, et seq., as amended ( “CERCLA”); the Solid Waste Disposal Act, as amended by the Resource Conservation and Recovery Act of 1976, 42 U.S.C. Sections 6901, et seq ., as amended (“RCRA”); the Emergency Plann ing and Community Right to Know Act of 1986, 42 U.S.C.
Sections 11001, et seq ., as amended; the Hazardous Materials Transportation Act, 49 U.S.C.
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Section 1801, et seq ., as amended; the Clean Air Act, 42 U.S.C. Sections 7401, et seq ., as amended; the Clean Water Act, 33 U.S.C. Section 1251, et seq ., as amended; the Toxic Substances Control Act, 15 U.S.C. Sections 2601 et seq., as amended; the Federal Insecticide, Fungicide and Rodenticide Act, 7 U.S.C. Sections 136 et seq. , as amended; the Federal Safe Drinking Water Act, 42 U.S.C. Sections 300f et seq., as amended; the Federal Radon and Indoor Air Quality Research Act, 42 U.S.C. Sections 7401, et seq., as amended; the Occupational Safety and Health Act, 29 U.S.C. Sections 651, et seq., as amended; and Cal ifornia Health and Safety Code section 25100, et seq.
“ General Plan ” means City’s General Plan (“T he Fullerton Plan”) adopted by the City Council on May 1, 2012, as it may have been amended thereafter from time to time through and including General Plan Revision for the Project approved concurrently with this Agreement by Resolution No. _______, excluding any amendment after the Effective Date unless such amendment is expressly authorized by this Agreement, is authorized by Articles 8 or 9, or the City and Developer specifically agree that it shall apply to Developer. “ H azardous Substances ” means any toxic substance or waste, pollutant, hazardous substance or waste, contaminant, special waste, industrial substance or waste, petroleum or petroleum-derived su bstance or waste, or any toxic or hazardous constituent or additive to or breakdown component from any such substance or waste, including without limitation any substance, waste, or material regulated under or defined as “hazardous” or “toxic” under any Environmental Law.
“M
ortgage” means a mortgage, deed of trust, sale and leaseback arrangement, or any other form of conveyance in which the Property, or a part or interest in the Property, is pledged as security and contracted for in good faith and for fair value. “M
ortgagee” means the holder of a beneficial interest under a Mortgage or any successor or assignee of the Mortgagee.
“ N otice of Default ” shall have the meaning ascribed in Section 8.1 of this Agreement. “ Party” or “Parties” means either City or Developer or both, as determined by the context.
“ P
roject ” means all on-site and off-site improvements that Developer is authorized and/or required to construct with respect to each parcel of the Property, as provided in this Agreement and the Developmen t Regulations, as the same may be modified or amended from time to time consistent with this Agreement and applicable law.
“ P roperty ” is described in Exhibit A and depicted on Exhibit B. “ Subsequent Development Approvals” means all discretionary development and building approvals that Developer is required to obtain to Develop the Project on and with respect to the Property after the Agreement Date consistent with the Development Regulations and this Agreement, with the understanding that except as expressly set forth herein City shall not have the right subsequent to the Effective Date and during the Term of this Agreement to adopt or impose requirements for any such Subsequent Development Approvals that do not exist as of the Agreement Date.
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“ Term” shall have the meaning ascribed in Section 2.4 of this Agreement. “ Termination Date ” and “Lot Termination Date ” shall have the meaning ascribed in Section 2.4 of this Agreement.
“ T ransfer ” shall have the meaning ascribed in Article 11 of this Agreement.
2. General Provisions.
2.1 Plan Consistency, Zoning Implementation.
This Agreement and the Development Regulations applicable to the Property are consistent with the The Fullerton Plan.
2.2 Binding Effect of Agreement.
The Property is hereby made subject to this Agreement. Development of the Property is hereby authorized and shall be carried out in accordance with the terms of this Agreement.
2.3 Developer Representations and Warranties Regarding Ownership of the Property and Related Matters Pertaining to this Agreement.
Developer and each person executing this Agreement on behalf of Developer hereby represents and warrants to City as follows: (i) that Developer owns fee simple title to the Property as of the Effective Date; (ii) if Developer or any co -owner comprising De veloper is a legal entity that such entity is duly formed and existing and is authorized to do business in the State of California; (iii) if Developer or any co-owner comprising Developer is a natural person that such natural person has the legal right and capacity to execute this Agreement; (iv) that all actions required to be taken by all persons and entities comprising Developer to enter into this Agreement have been taken and that Developer has the legal authority to enter into this Agreement; ( v) that Developer’ s entering into and performing its obligations set forth in this Agreement will not result in a violation of any obligation, contractual or otherwise, that Developer or any person or entity comprising Developer has to any third party; (vi) that neither Developer nor any co-owner comprising Developer is the subject of any voluntary or involuntary bankruptcy or insolvency petition; and (vii) that Developer has no actual knowledge of any pending or threatened claims of any person or entity affecting the validity of any of the representations and warranties set forth in clauses (i) -(vi), inclusive, or affecting Developer ’s authority or ability to enter into or perform any of its obligations set forth in this Agreement.
2.4 Term.
The term of this Agreement (the “Term”) shall commence on the Effective Date and shall terminate on the Termination Date.
Notwithstanding any other provision set forth in this Agreement to the contrary, i f either Party reasonably determines that the Effective Date of this Agreement will not occur because (i) the Adopting Ordinance or any of the Development Regulations approved on or before the Agreement Date for the Project has/have been disapproved by City’ s voters at a referendum election or (ii) a final non -appealable judgment is entered in a judicial action challenging the
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validity or legality of the Adopting Ordinance, this Agreement, and/or any of the Development Regulations for the Project approved on or before the Agreement Date such that this Agreement and/or any of such Development Regulations is/are invalid and unenforceable in whole or in such a substantial part that the judgment substantially impairs such Party ’s rights or substantially increases its obligations or risks hereunder or thereunder, then such Party, in its sole and absolute discretion, shall have the right to terminate this Agreement upon delivery of a written notice of termination to the other Party, in which event neither Party shall have any further rights or obligations hereunder except that Developer ’s indemnity obligations set forth in Section 10.1 shall remain in full force and effect and shall be enforceable, and the Development Regulations applicable to the Project and the Property shall similarly be null and void at such time.
The Termination Date shal l be the earliest of the following dates: (i) the fifth (5th) anniversary of the Effective Date, as said date may be extended in accordance with Section 5.1 of this Agreement; (ii) such earlier date that this Agreement may be terminated in accordance with Articles 5, 7, or Section 8.3 of this Agreement and/or Sections 65865.1 and/or 65868 of the Development Agreement Statute ; (iii) as to any separate condominium unit within the Property (but not as to the balance of the Property or the portion thereof that remains subject to this Agreement at such time), upon the “ Condominium Unit Termination Date” (defined below); or (iv) completion of the Project in accordance with the terms of this Agreement, including Developer’s complete satisfaction, performance, and payment, as applicable, of all Development Exactions, the issuance of all required final occupancy permits, and acceptance by City or applicable public agency(ies) or private entity(ies) of all required offers of dedication.
As used herein, the term “Condom inium Unit Termination Date ” for any separate condominium unit within the Property means the date on which the condominium unit has been sold or has been leased for a period longer than one year, individually or in a “bulk”, to a member of the public or other ultimate user.
Notwithstanding any other provision set forth in this Agreement to the contrary, the provisions set forth in Section 10.1 and Section 13.10 (as well as any other Developer obligations set forth in this Agreement that are expressly writte n to survive the Termination Date) shall survive the Termination Date of this Agreement.
3. Public Benefits.
3.1 Developer to Provide Public Benefits.
Developer agrees to provide those public benefits identified in Exhibit C (“Public Benefits”). Developer ackno wledges by its approval and execution of this Agreement that it is voluntarily agreeing to the Public B enefits identified in Exhibit C and that its obligation to provide said Public B enefits is an essential term of this Agreement and is not severable from City’s obligations and Developer’s vested rights to be acquired hereunder, and that Developer expressly waives any constitutional, statutory, or common law right it might have in the absence of this Agreement to protest or challenge the Public B enefits identified in Exhibit C on any ground whatsoever, including without limitation pursuant to the Fifth and Fourteenth Amendments to the United States Constitution, California Constitution Article I Section 19, the Mitigation Fee Act (California Government Code section 66000 et seq.), or otherwise.
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In addition to any other remedy set forth in this agreement for Developer’s default, if Developer shall fail to timely pay or provide any portion of the Public Benefits identified in Exhibit C , City shall have the rig ht to withhold issuance of any further building permits, occupancy permits, or other development or building permits for the Project . Bond Financing of Public Improvements and Fees.
City will consider Developer’s proposal to create the City of Fullerton C FD 3 (The Pines at Sunrise Village) within the Property and, if created, City and Developer shall cooperate in good faith to facilitate bond financing of the Project’s eligible public improvements and development impact fees.
4. Development of Project.
4.1 Applicable Regulations ; Developer’s Vested Rights and City’ s Reservation of Discretion With Respect to Subsequent Development Approvals.
Other than as expressly set forth in this Agreement, during the Term of this Agreement, (i) Developer shall have the vested right to Develop the Project on and with respect to the Property in accordance with the terms of the Development Regulations and this Agreement and (ii) City shall not prohibit or prevent development of the Property on grounds inconsistent with the Development Regulations or this Agreement. Notwithstanding the foregoing, nothing herein is intended to limit or restrict City ’s discretion with respect to (i) review and approval requirements contained in the Development Regulations , (ii) exercise of any discret ionary authority City retains under the Development Regulations , (iii) the approval, conditional approval, or denial of any Subsequent Development Approvals that are required for Development of the Project as of the Effective Date, or (iv) any environmental approvals that may be required under CEQA or any other federal or state law or regulation in conjunction with any Subsequent Development Approvals that may be required for the Project, and in this regard, as to future actions referred to in clauses (i) -(iv) of this sentence, City reserves its full discretion to the same extent City would have such discretion in the absence of this Agreement. In addition, it is understood and agreed that nothing in this Agreement is intended to vest Developer’s rights with respect to any laws, regulations, rules, or official policies of any other governmental agency or public utility company with jurisdiction over the Property or the Project; or any applicable federal or state laws, regulations, rules, or official policies that may be inconsistent with this Agreement and that override or supersede the provisions set forth in this Agreement, and regardless of whether such overriding or superseding laws, regulations, rules, or official policies are adopted or applied to the Property or the Project prior or subsequent to the Agreement Date.
Developer has expended and will continue to expend substantial amounts of time and money planning and preparing for Development of the Project. Developer represents and City acknowledges that Developer would not make these expenditures without this Agreement, and that Developer is and will be making these expenditures in reasonable reliance upon its vested rights to Develop the Project as set forth in this Agreement.
Developer may apply to City for permits or approvals necessary to modify or amend the Development specified in the Development Regulations, without amending this Agreement, provided that the request does not propose an increase in the maximum allowable density,
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intensity, height, or size of proposed structures, or a change in use. Developer may apply to the City’s Community an d Economic Development Director for approval of minor amendments to the tract map, if any, or associated conditions of approval. Minor amendments may be approved by the Community and Economic Development Director provided (a) no greater number of lots, units, or building sites or structures are added; (b) the changes are consistent with the intent and spirit of the original Tract Map; and (c) there are no resulting violations of The Fullerton Plan or the Subdivision Map Act. Amendments to the tract map that in the opinion of the Community and Economic Development Director are not minor, shall be presented to the original decision- making body for consideration. This Agreement does not constitute a promise or commitment by City to approve any such permit or approval other than minor amendments, or to approve the same with or without any particular requirements or conditions, and City’s discretion with respect to such matters shall be the same as it would be in the absence of this Agreement.
4.2 No Conflicting Enactments.
Except to the extent City reserves its discretion as expressly set forth in this Agreement, during the Term of this Agreement City shall not a pply to the Project or the Property any ordinance, policy, rule, regulation, or other measure relating to D evelopment of the Project that is enacted or becomes effective after the Effective Date to the extent it conflicts with this Agreement unless Developer consents in writing. This Section 4.2 shall not restrict City’s ability to enact an ordinance, policy, rule, regulation, or other measure applicable to the Project pursuant to California Government Code S ection 65866 consistent with the procedures spec ified in Section 4.3 of this Agreement. In Pardee Construction Co. v. City of Camarillo (1984) 37 Cal.3d 465, the California Supreme Court held that a construction company was not exempt from a city ’s growth control ordinance even though the c ity and construction company had entered into a consent judgment (tantamount to a contract under California law) establishing the company’s vested rights to develop its property consistent with the zoning. The California Supreme Court reached this result because the consent judgment failed to address the timing of development. The Parties intend to avoid the result of the Pardee case by acknowledging and providing in this Agreement that Developer shall have the vested right to Develop the Project on and with respect to the Property at the rate, timing, and sequencing that Developer deems appropriate within the exercise of Developer ’s sole subjective business judgment , provided that such Development occurs in accordance with this Agreement and the Development Regulations, notwithstanding adoption by City’ s electorate of an initiative to the contrary after the Effective Date. No City moratorium or other similar limitation relating to the rate, timing, or sequencing of the Development of all or any part of the Project and whether enacted by initiative or another method, affecting subdivision maps, building permits, occupancy certificates, or other entitlement to use, shall apply to the Project to the extent such moratorium or other similar limitation restricts Developer ’s vested rights in this Agreement or otherwise conflicts with the express provisions of this Agreement.
4.3 Reservations of Authority.
Notwithstanding any other provision set forth in this Agreement to the contrary, the laws, rules, regulations, and official policies set forth in this Section 4.3 shall apply to and govern the Development of the Project on and with respect to the Property.
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4.3.1 Procedural Regulations. Procedural regulations relating to hearing bodies, petitions, applications, notices, findings, records, hearings, reports, recommendations, appeals, and any other matter of procedure shall apply to the Property, provided that such procedural regulations are adopted and applied City-wide or to all other properties similarly situated in City.
4.3. 2 Processing and Permit Fees . City shall have the right to charge , and Developer shall be required to pay, all applicable processing and permit fees at the rates to cover the reasonable cost to City of processing and reviewing applications and plans for any required Subsequent Development Approvals, building permits, excavation and grading permits, encroachment permits, and the like, for performing necessary studies and reports in connection therewith, inspecting the work constructed or installed by or on behalf of Developer , and monitoring compliance with any requirements applicable to Development of the Project, all at the rates in effect at the time fees are due.
4.3. 3 Consistent Future City Regulations . City ordinances, resolutions, regulations, and official policies governing Development which do not conflict with the Development Regulations, or with respect to such regulations that do conflict, where Developer has consented in writing to the regulations, shall apply to the Property.
4.3. 4 Developme nt Exactions Applicable to Property. During the Term of this Agreement, Developer shall be required to satisfy and pay all Development Exactions at the time performance or payment is due to the same extent and in the same amount(s) that would apply to Developer and the Project in the absence of this Agreement; provided, however, that to the extent the scope and extent of a particular Development Exaction for the Project has been established and fixed by City in this Agreement or the conditions of approval for any of the Development Regulations approved on or before the Agreement Date City shall not alter, increase, or modify said Development Exaction in a manner that is inconsistent with such Development Regulations without Developer’s prior written consent or as may be otherwise required pursuant to overriding federal or state laws or regulations (Section 4.3.5 hereinbelow).
In addition, nothing in this Agreement is intended or shall be deemed to vest Developer against the obligation to pay any of the following (which are not included within the definition of “Development Exactions”) in the full amount that would apply in the absence of this Agreement:
(i) City’s normal fees for processing, environmental assessment and review, tentative tract and parcel map review, plan checking, site review and approval, zone change applications, variances, administrative review, building permit, grading permit, use permits inspection, and similar fees imposed to recover City ’s costs associated with processing, reviewing, and inspecting project applications, plans, and specifications; (ii) fees and charges levied by any other public agency, utility, district, or joint powers authority, regardless of whether City collects those fees and charges; or (iii) community facility district special taxes or special district assessments or similar assessments, business license fees and/or taxes, bonds or other security required for public improvements, transient occupancy taxes, sales taxes, property taxes, water service connection fees, and new water meter fees.
4.3. 5 Overriding Federal and State Laws and Regulations . Federal and state laws and regulations that override Developer ’s vested rights set forth in this Agreement shall apply to the Property, together with any City ordinances, resolutions, regulations, and official policies that are necessary to enable City to comply with the provisions of any such overriding federal or state laws and regulations, provided that (i) Developer does not waive its right to
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challenge or contest the validity of any such purportedly overriding federal , state, or City law or regulation; and (ii) u pon the discovery of a ny such overriding federal, state, or City law or regulation that prevents or precludes compliance with any provision of this Agreement, City or Developer shall provide to the other Party a written notice identifying the federal, state, or City law or regulation, together with a copy of the law or regulation and a brief written statement of the conflict(s) between that law or regulation an d the provisions of this Agreement. Promptly thereafter City and Developer shall meet and confer in good faith in a reasonable attempt to determine whether a modification or suspension of this Agreement, in whole or in part, is necessary to comply with such overriding federal, state, or City law or regulation. In such negotiations, City and Developer agree to preserve the terms of this Agreement and the rights of Developer as derived from this Agreement to the maximum feasible extent while resolving the conflict. City agrees to cooperate with Developer at no cost to City in resolving the conflict in a manner which minimizes any financial impact of the conflict upon Developer . City also agrees to process in a prompt manner Developer ’s proposed changes to the Project and any of the Development Regulations as may be necessary to comply with such overriding federal, state, or City law or regulation; provided, however, that the approval of such changes by City shall be subject to the discretion of City, consistent with this Agreement.
4.3.6 Public Health and Safety. Any City ordinance, resolution, rule, regulation, program, or official policy that is necessary to protect persons on the Property or in the immediate vicinity from conditions dangerous to their health or safety, as reasonably determined by City, shall apply to the Property, even though the application of the ordinance, resolution, rule regulation, program, or official policy would result in the impairment of Developer ’s vested rights under this Agreement.
4.3. 7 Uniform Building Standards. Existing and future building and building- related standards set forth in the uniform codes adopted and amended by City from time to time, including building, plumbing, mechanical, electrical, housing, swimming pool, and fire codes, and any modifications and amendments thereof shall all apply to the Project and the Property to the same extent that the same would apply in the absence of this Agreement.
4.3. 8 Public Works Improvements . To the extent Developer cons tructs or installs any public improvements, works, or facilities, the City standards in effect for such public improvements, works, or facilities at the time of City ’s issuance of a permit, license, or other authorization for construction or installation of same shall apply.
4.3. 9 No Guarantee or Reservation of Utility Capacity . Notwithstanding any other provision set forth in this Agreement to the contrary, nothing in this Agreement is intended or shall be interpreted to require City to guarantee or reserve to or for the benefit of Developer or the Property any utility capacity , service, or facilities that may be needed to serve the Project, whether domestic or reclaimed water service, sanitary sewer transmission or wastewater treatment capacity, downstream drainage capacity, or otherwise, and City shall have the right to limit or restrict Development of the Project if and to the extent that City reasonably determines that inadequate utility capacity exists to adequately serve the Project at the time Development is scheduled to commence. Notwithstanding the foregoing, City covenants to provide utility services to the Project on a non -discriminatory basis (i.e., on the same terms and conditions that City undertakes to provide such services to other similarly situated new developments in the City of Fullerton as and when service connections are provided and service commences).
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4.4 Tentative Subdivision Maps.
City agrees that Developer may file and process vesting tentative maps for the Property consistent with C alifornia Government Code sections 66498.1- 66498.9 and City of Fullerton Municipal Code C hapter 16.10. Developer agrees that filing and issuance of a new tentative subdivision map may trigger additional development impact fees. Pursuant to the applicable provision of the California Subdivision Map Act (California Government Code section 66452.6(a)), the life of any tentative subdivision map approved for the Property, whether designated a “vesting tentative map” or otherwise, shall extend for the Term of this Agreement.
4.5 Sourcing of Sales Tax
Developer shall use commercially reasonable efforts to cause its contractors, subcontractors and suppliers where, in each case, the value of their individual contract is at least $5.0 million and such entity is normall y a retailer of fixtures (collectively, “ Contractors”), to participate in directing local tax to the City of Fullerton wherever possible. Developer shall require all Contractors to obtain a California Department of Tax and Fee Administration (CDTFA) seller’s sub-permit for the jobsite and allocate all eligible transactions and use (sales) tax payments to the City of Fullerton. The Developer shall require each C ontractor, before they begin operating on site, to provide the City with a copy of their sub- permit and CDTFA account number, or a statement that transactions and use tax does not apply to their portion of the project.
Developer shall further require that Contractors notify the CDTFA of any delays in project completion in order to extend the active period of the sub-permit as appropriate.
5. A
mendment or Cancellation of Agreement.
Other than modifications of this Agreement under Section 4.1, this Agreement may be amended or canceled in whole or in part only by mutual written and executed consent of the Parties in compliance with California Government Code section 65868 or by unilateral termination by City in the event of an uncured default of Developer.
5.1 Extension.
Upon receipt of a written request from Developer , City shall grant one (1), five (5) year extension that extends the Term of this Agreement for a total of five (5 ) additional years provided that (a) at the time of the request for extension, the Developer has been granted final occupancy approval for the Project’s 83 rd unit and Developer is in compliance with all other provisions of this Agreement; and (b) the request for extension is submitted to the City no earlier than six months prior to the date this Agreement would otherwise terminate. Pursuant to California Government Code sections 65863.9 and 66452.6(a), the expiration date of the Development Plan shall be extended through the Term of this Agreement, and any extension pursuant to this Section 5.1.
6. Enforcement.
Unless this Agreement is amended , canceled, modified, or suspended as author ized herein or pursuant to California Government Code section 65869.5, this Agreement shall be enforceable by either Party despite any change in any applicable general or specific plan, zoning,
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subdivision, or building regulation or other applicable ordinance or regulation adopted by City (including by City’s electorate) that purports to apply to any or all of the Property.
7. Annual Review of Developer’s Compliance With Agreement.
7.1 General.
City shall review this Agreement once during every twelve (12) month period following the Effective Date for compliance with the terms of this Agreement as provided in Government Code section 65865.1. Developer (including any successor to the owner executing this Agreement on or before the Agreement Date) shall pay City a r easonable fee in an amount City may reasonably establish from time to time to cover the actual and necessary costs for the annual review. City ’s failure to timely provide or conduct an annual review shall not constitute a Default hereunder by City.
7.2 Developer Obligation to Demonstrate Good Faith Compliance.
During each annual review by City, Developer is required to demonstrate good faith compliance with the terms of the Agreement. Developer agrees to furnish such evidence of good faith compliance as City, in the reasonable exercise of its discretion, may require, thirty (30) days prior to each anniversary of the Effective Date during the Term.
7.3 Procedure.
The Zoning Administrator shall conduct a duly noticed hearing and shall determine, on the basis of subs tantial evidence, whether or not Developer has, for the period under review, complied with the terms of this Agreement. If the Zoning Administrator finds that Developer has so complied, the annual review shall be concluded. If the Zoning Administrator fi nds, on the basis of substantial evidence, that Developer has not so complied, w ritten notice shall be sent to Developer by first class mail of the Zoning Administrator ’s finding of non- compliance, and Developer shall be given at least ten (10) calendar days to cure any noncompliance that relates to the payment of money and thirty (30) calendar days to cure any other type of noncompliance. If a cure not relating to the payment of money cannot be completed within thirty (30) calendar days for reasons which are beyo nd the control of Developer , Developer must commence the cure within such thirty (30) calendar days and diligently pursue such cure to completion. If Developer fails to cure such noncompliance within the time(s) set forth above, such failure shall be considered to be a Default and City shall be entitled to exercise the remedies set forth in Section 8 below.
7.4 Annual Review a Non- Exclusive Means for Det ermining and Requiring Cure of Developer’s Default.
The annual review procedures set forth in this Se ction 7 shall not be the exclusive means for City to identify a Default by Developer or limit City ’s rights or remedies for any such Default.
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8. Events of Default.
8.1 General Provisions.
In the event of any material default, breach, or violation of the terms of this Agreement (“Default”), the Party alleging a Default shall deliver a written notice (each, a “Notice of Default”) to the defaulting Party. The Notice of Default shall specify the nature of the alleged Default and a reasonable manner and sufficient period of time ( twenty (20) calendar days if the Default relates to the failure to timely make a monetary payment due hereunder and not less than thirty (30) calendar days in the event of non- monetary Defaults) in which the Default must be cured (the “Cure Period”). During the Cure Period, the Party charged shall not be considered in Default for the purposes of termination of this Agreement or institution of legal proceedings. If the alleged Default is cured within the Cure Period, then the Default thereaft er shall be deemed not to exist. If a non-monetary Default cannot be cured during the Cure Period with the exercise of commercially reasonable diligence, the defaulting Party must promptly commence to cure as quickly as possible, and in no event later tha n thirty (30) days after it receives the Notice of Default, and thereafter diligently pursue said cure to completion.
8.2 D
efault by Developer.
If Developer is alleged to have committed Default and it disputes the claimed Default, it may make a written request for an appeal hearing before the City Council within ten (10) calendar days of receiving the Notice of Default, and a public hearing shall be scheduled at the next available City Council meeting to consider Developer’ s appeal of the Notice of Default.
Failure to appeal a Notice of Default to the City Council within the ten (10) calendar day period shall waive any right to a hearing on the claimed Default. If Developer ’s appeal of the Notice of Default is timely and in good faith but after a public heari ng of Developer ’s appeal t he City Council concludes that Developer is in Default as alleged in the Notice of Default, the accrual date for commencement of the thirty (30) day C ure Period provided in Section 8.1 shall be extended until the City Council’s denial of Developer’s appeal is communicated to Developer.
8.3 City’s Option to Terminate Agreement.
In the event of an alleged Developer Default, City may not terminate this Agreement without first delivering a written Notice of Default and providing Developer with the opportunity to cure the Default within the Cure Period, as provided in Section 8.1, and complying with Section 8.2 if Developer timely appeals any Notice of Default with respect to a non -monetary Default. A termination of this Agreement by City s hall be valid only if good cause exists and is supported by evidence presented to the City Council at or in connection with a duly noticed public hearing to establish the existence of a Default. The validity of any termination m ay be judicially challenged by Developer. Any such judicial challenge must be brought within sixty (60) calendar days of service on Developer, by first class mail, postage prepaid, of written notice of termination by City or a written notice of City ’s determination of an appeal of the Notice of Default as provided in Section 8.2.
8.4 Default by City.
If Developer alleges a City Default and alleges that the City has not cured the D efault within the Cure Period, Developer may pursue any equitable remedy available to it under this
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Agreement, including, without limitation, an action for a writ of mandamus, injunctive relief, or specific performance of City’s obligations set forth in this Agreement. Upon a City Default, any resulting delays in Developer ’s performance hereunder shall neither be a Developer Default nor constitute grounds for termination or cancellation of this Agreement by City and shall, at Developer’s option (and provided Developer delivers written notice to City within thirty (30) days of the commencement of the alleged City Default), extend the Term for a period equal to the length of the delay.
8.5 Waiver.
Failure or delay by either Party in delivering a Notice of Default shall not waive that Party’s right to deliver a future Notice of Default of the same or any other Default.
8.6 Specific Performance Remedy.
Due to the size, nature, and scope of the Project, it will not be practical or possible to restore the Property to its pre -existing condition once implementation of this Agreement has begun. After such implementation, both Developer and City may be foreclosed from other choices they may have had to plan for the development of the Property, to utilize the Property or provide for other benefits and alternatives. Developer and City have invested significant time and resources and performed extensive planning and processing of the Project in agreeing to the terms of this Agreement and will be investing even more significant time and resources in implementing the Project in reliance upon the terms of this Agreement. It is not possible to determine the sum of money which would adequately compensate Developer or City for such efforts. For the above reasons, City and Developer agree that damages would not be an adequate remedy if either City or Developer fails to carry out its obligations under this Agreement.
Therefore, specific performance of this Agreement is necessary to compensate Developer if City fails to carry out its obligations under this Agreement or to compensate City if Developer falls to carry out its obligations under this Agreement.
8.7 Monetary Damages.
The Parties agree that monetary damages shall not be an available remedy for either Party for a Default hereunder by the other Party; provided, however, that nothing in this S ection 8.7 is intended or shall be interpreted t o limit or restrict City’s right to recover the Public Benefits described in Exhibit C consistent with the terms of this Agreement or D eveloper’s indemnity obligations set forth in Article 10.
8.8 A dditional City Remedy for Developer ’s Default.
In the event of any Default by Developer, in addition to any other remedies which may be available to City, whether legal or equitable, City shall be entitled to receive and retain any Development Exactions applicable to the Project or the Property, including any fees, g rants, dedications, or improvements to public property which it may have received prior to Developer’s Default without recourse from Developer or its successors or assigns.
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8.9 No Personal Liability of City Officials, Employees, or Agents.
No City official, e mployee, or agent shall have any personal liability hereunder for a Default by City of any of its obligations set forth in this Agreement.
8.10 No Recovery of Legal Expenses by Prevailing Party in Any Action.
In any judicial proceeding, arbitration, or mediation (collectively, an “Action”) between the Parties that seeks to enforce the provisions of this Agreement or arises out of this Agreement, the prevailing Party shall not be entitled to recover any costs and expenses, regardless of whether they would be recoverable under California Code of Civil Procedure section 1033.5 or California Civil Code section 1717 in the absence of this Agreement. These costs and expenses include court costs, expert witness fees, attorneys’ fees, and costs of investigation and preparation before initiation of the Action.
9. F
orce Majeure.
Neither Party shall be deemed to be in D efault where failure or delay in performance of any of its obligations under this Agreement is caused, through no fault of the Party whose performance is prevented or delayed, by floods, earthquakes, other acts of God, fires, wars, riots or similar hostilities, strikes or other labor difficulties, state or federal regulations, or court actions. Except as specified above, nonperformance shall not be excused bec ause of the act or omission of a third person. In no event shall the occurrence of an event of force majeure operate to extend the Term of this Agreement. In addition, in no event shall the time for perfor mance of a monetary obligation be extended pursuant to this Section.
10. Indemnity Obligations of Developer.
10.1 Indemnity Arising From Acts or Omissions of Developer.
Except to the extent caused by the intentional misconduct or grossly negligent acts, errors or omissions of City or one or more of City’s officials, employees, agents, attorneys, and contractors (collectively, the “City’s Affiliated Parties”), Developer shall indemnify, defend, and hold harmless City and City’ s Affiliated Parties from and against all suits, claims, liabilities, losses, damages, penalties, obligations, and expenses (including but not limited to reasonable attorneys’ fees and costs) (collectively, a “Claim”) that may arise, directly or indirectly, from the acts, omissions, or operations of Developer or Developer’s agents, contractors, subcontractors, agents, or employees in the course of Development of the Project or any other activities of Developer relating to the Property or Project or pursuant to this Agreement. These obligations shall apply, irrespective of whether a court issue d a final determination in a matter. City shall have the right to select and retain counsel to defend any Claim filed against City and/or any of City’s Affiliated Parties , and Developer shall pay the reasonable cost for defense of any Claim .
The indemnity provisions in this Section 10.1 shall commence on the Agreement Date, regardless of whether the Effective Date occurs, and shall survive the Termination Date.
10.2 T
hird Party L itigation.
In addition to its indemnity obligations set forth in Section 10.1, Developer shall indemnify, defend, and hold harmless City and City’ s Affiliated Parties from and against any
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Claim against City or City ’s Affiliated Parties seeking to attack, set aside, void, or annul the approval of this Agreement, the Adopting Ordinance, any of the Development Regulations for the Project (including without limitation any actions taken pursuant to CEQA with respect thereto), any Subsequent Development Approval, or the approval of any permit granted pursuant to this Agreement. These obligations shall apply irrespective of whether a court issued a final determination in a matter. Said indemnity obligation shall include payment of reasonable attorney’s fees, expert witness fees, and court costs. City shall promptly notify Developer of any such Claim and City shall cooperate with Developer in the defense of such Claim. If City fails to promptly notify Developer of such Claim, Developer shall not be responsible to indemnify, defend, and hold City harmless from such Claim until Developer is so notified and if City fails to cooperate in the defense of a Claim Developer shall not be responsible to defend, indemnify, and hold harmless City during the period that City so fails to cooperate or for any losses attributable thereto. City shall be entitled to retain separate counsel to represent City against the Claim and the City ’s defense costs for its separate counsel shall be included in Developer ’s indemnity obligation, provided that such counsel shall reasonably cooperate with Developer in an effort to minimize the total litigation expenses incurred by Developer . In the event either City or Developer recovers any attorney’ s fees, expert witness fees, costs, interest, or other amounts from the party or parties asserting the Claim, Developer shall be entitled to retain the same (provided it has fully performed its indemnity obligations hereunder). The indemnity provisions in this Section 10.2 shall commence on the Agreement Date, regardless of whether the Effective Date occurs, and shall survive the Termination Date.
10.3 Environmental Indemnity.
In addition to its indemnity obligations set forth in Section 10.1, from and after the Effective Date Developer shall indemnify, defend, and hold harmless City and City’ s Affiliated Parties from and against any and all Claims for personal injury or death, property damage, economic loss, statutory penalties or fines, and damages of any kind or nature whatsoever, including without limitation reasonable attorney ’s fees, expert witness fees, and costs, based upon or arising from any of the following: (i) the actual or alleged presence of any Hazardous Substance on or under any of the Property in violation of any applicable Environmental Law; (ii) the actual or alleged migration of any Hazardous Substance from the Property through the soils or groundwater to a location or locations off of the Property; and (iii) the storage, handling, transport, or disposal of any Hazardous Substance on, to, or from the Property and any other area disturbed, graded, or developed by Developer in connection with Developer ’s Development of the Project. The foregoing indemnity obligations shall not apply to any Hazardous Substance placed or stored on a separate legal lot within the Property after the Lot Termination Date for said lot, as provided in Section 2.4 of this Agreement. The indemnity provisions in this Section
10.3 shall commence on the Effective Date, and shall survive the Termination Date.
11. Assignment.
Developer shall have the right to sell, transfer, or assign (hereinafter, collectively, a “Transfer”) Developer’s interest in or fee title to the Property, in whole or in part, to a Permitted Transferee (which successor, as of the effective date of the Transfer, shall become the “ Developer” under this Agreement) at any time from the Agreement Date until the Termination Date; provided, however, that no such Transfer shall violate the provisions of the Subdivision Map Act (Government Code section 66410 et seq .) or City ’s local subdivision ordinance and any such
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transfer shall include the assignment and assumption of Developer’ s rights, duties, and obligations set forth in or arising under this Agreement as to the Property or the portion thereof so Transferred and shall be made in strict compliance with the following conditions precedent:
(i) no transfer or assignment of any of Developer ’s rights or interest under this Agreement shall be made unless made together with the Transfer of all or a part of Developer’s interest in the Property; and (ii) prior to the effective date of any proposed Transfer, Developer (as transferor) shall notify City, in writing, of such proposed Transfer and deliver to City a wri tten assignment and assumption, executed in recordable form by the transferring and successor Developer and in substantially the form atta ched as Exhibit D or otherwise in a form subject to the reasonable approval of the City Attorney of City (or designee), pursuant to which the transferring Developer assigns to the successor Developer and the successor Developer assumes from the transferrin g Developer all of the rights and obligations of the transferring Developer with respect to the Property, or interest in the Property, or portion thereof to be so Transferred, including in the case of a partial Transfer the obligation to perform such obligations that must be performed outside of the Property so Transferred that are a condi tion precedent to the successor Developer ’s right to develop the portion of the Property so Transferred. Any Permi tted Transferee shall have all of the same rights, benefits, duties, obligations, and liabilities of Developer under this Agreement with respect to the portion of, or interest in, the Property sold, transferred, and assigned to such Permitted Transferee; provided, however, tha t in the event of a Transfer of les s than all of the Property, or interest in the Property, no such Permitted Transferee sha ll have the right to enter into an amendment of this Agreement that jeopardizes or impairs the rights or increases the obligations of the Developer with respect to the balance of the Property.
Notwithstanding any Transfer, the transferring Developer shall continue to be jointly and severally liable to City, together with the successor Developer , to perform all of the transferred obligations set forth in or arising under this Agreement unless there is full satisfaction of all of the following conditions, in which event the transferring Developer shall be automatically released from any and all obligations with respect to the portion of the Property so Transferred:
(i) th e transferring Developer no longer has a legal or equitable interest in the portion of the Property so Transferred other than as a beneficiary under a deed of trust; (ii) the transferring Developer is not then in Default under this Agreement and no condition exists that with the passage of time or the giving of notice, or both, would constitute a Default hereunder; (iii) the transferring Developer has provided City with the notice and the fully executed written and recordable assignment and assumption agree ment required as s et forth in the first paragraph of this Article 11; and (iv) the successor Developer either (A) provides City with substitute security equivalent to any security previously provided by the transferring Developer to City to secure performance of the successor Developer’ s obligations hereunder with respect to the Property , or interest in the Property, or the portion of the Property so Transferred, as determined in the City’s reasonable discretion, or (B) if the transferred obligation in ques tion is not a secured obligation, the successor Developer either provides security reasonably satisfactory to City or otherwise demonstrates to City ’s reasonable satisfaction that the successor Developer has the financial resources or commitments available to perform the transferred obligation at the time and in the manner required under this Agreement and the Development Regulations for the Project. Any determination by the City pursuant to this paragraph shall be made in writing and shall expressly refer to this paragraph.
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12. Mortgagee Rights.
12.1 Encumbrances on Property.
The Parties agree that this Agreement shall not prevent or limit Developer in any manner from encumbering the Property, any part of the Property, or any improvements on the Property with any Mortgage securing financing with respect to the construction, development, use, or operation of the Project.
12.2 Mortgagee Protection.
This Agreement shall be superior and senior to the lien of any Mortgage. Nevertheless, no breach of this Agreement shall defeat, render invalid, diminish, or impair the lien of any Mortgage made in good faith and for value. Any acquisition or acceptance of title or any right or interest in the Property or part of the Property by a Mortgagee (whether due to foreclosure, trustee’s sale, deed in lieu of foreclosure, lease termination, or otherwise) shall be subject to all of the terms and conditions of this Agreement. Any Mortgagee who takes title to the Property or any part of the Property shall be entitled to the benefits arising under this Agreement.
12.3 Mortgagee Not Obligated.
Notwithstanding the provisions of this Section 12.3, a Mortgagee will not have any obligation or duty under the terms of this Agreement to perform the obligations of Developer or other affirmative covenant s of Developer , or to guarantee this performance except that: (i) the Mortgagee shall have no right to develop the Project under the Development Regulations without fully complying with the terms of this Agreement; and (ii) to the extent that any covenant to be performed by Developer is a condition to the performance of a covenant by City, that performance shall continue to be a condition precedent to City’s performance.
12.4 Notice of Default to Mortgagee; Right of Mortgagee to Cure.
Each Mortgagee shall, upon written request to City, be entitled to receive written notice from City of: (i) the results of the periodic review of compliance specified in Article 7 of this Agreement, and (ii) any default by Developer of its obligations set forth in this Agreement.
Each Mortgagee shall have a further right, but not an obligation, to cure the D efault within thirty (30) calendar days after receiving a N otice of Default with respect to a monetary Default and within sixty (60) calendar days after receiving a Notice of Default with respect to a non-monetary Default. If the Mortgagee can only remedy or cur e a non -monetary Default by obtaining possession of the Property, then the Mortgagee shall have the right to seek to obtain possession with diligence and continuity through a receiver or otherwise, and to remedy or cure the non-monetary Default within sixty (60) calendar days after obtaining possession and, except in case of emergency or to protect the public health or safety, City may not exercise any of its judicial remedies set forth in this Agreement to terminate or substantially alter the rights of the Mortgagee until expiration of the sixty (60) calendar day period. In the case of a non- monetary Default that cannot with diligence be remedied or cured within sixty ( 60) calendar days, the Mortgagee shall have additional time as is reasonably necessary to remedy or cure the D efault, provided the Mortgagee promptly commences to cure the non-monetary Default within sixty (60) calendar days and diligently prosecutes the cure to completion.
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13. Miscellaneous Terms.
13.1 Notices.
Any notice or demand that shall be required or permitted by law or any provision of this Agreement shall be in writing. If the notice or demand will be served upon a Party, it either shall be personally delivered to the Party; deposited in the United States mail, certified, return receipt requested, and postage prepaid; or delivered by a reliable courier service that provides a receipt showing date and time of delivery with courier charges prepaid. The notice or demand shall be addressed as follows:
TO CITY: City of Fullerton
303 W. Commonwealth Avenue
Fullerton, CA 92832
Attn: City Manager
With a copy to: Jones & Mayer
Attention: Fullerton City Attorney
3777 N. Harbor Blvd.
Fullerton, CA 93835
TO DEVELOPER: Sunrise Village Owners, LLC
c/o Shopoff Realty Investments, L.P
2 Park Plaza, Suite 700
Irvine, CA 92614
Attn: William A. Shopoff
With a copy to: Jackson Tidus
2030 Main Street, 12th Floor
Irvine, CA 92614
Attn: Michele A. Staples, Esq.
Either Party may change the address stated in this Section 13.1 by delivering notice to the other Party in the manner provided in this Section 13.1, and thereafter notices to such Party shall be addressed and submitted to the new address. Notice s delivered in accordance with this Agreement shall be deemed to be delivered upon the earlier of: (i) the date received or (iii) three business days after deposit in the mail as provided above.
13.2 Project as Private Undertaking.
The Development of the Project is a private undertaking. Neither Party is acting as the agent of the other in any respect, and each Party is an independent contracting entity with respect to the terms, covenants, and conditions set forth in this Agreement. This Agreement forms no partnership, joint venture, or other association of any kind. The only relationship between the Parties is that of a government entity regulating the Development of private property by the owner of the Property.
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13.3 Cooperation.
Each Party shall cooperate with and provide reasonable assistance to the other Party to the extent consistent with and necessary to implement this Agreement. Upon the request of a Party at any time, the other Party shall promptly execute, with acknowledgement or affidavit if reasonably required, and file or record the required instruments and writings and take any actions as may be reasonably necessary to implement this Agreement or to evidence or consummate the transactions contemplated by this Agreement.
13.4 Estoppel Certificates.
At any time, either Party may deliver written notice to the other Party requesting that that Party certify in writing that, to the best of its knowledge: (i) this Agreement is in full force and effect and is binding on the Party; (ii) this Agreement has not been amended or modifie d either orally or in writing or, if this Agreement has been amended, the Party providing the certification shall identify the amendments or modifications; and (iii) the requesting Party is not in Default in the performance of its obligations under this Agreement and no event or situation has occurred that with the passage of time or the giving of Notice or both would constitute a Default or, if such is not the case, then the other Party shall describe the nature and amount of the actual or prospective Default. City shall be entitled to payment/reimbursement for its actual and reasonable costs of investigation and preparation of an estoppel certificate prior to issuing the same.
The Party requested to furnish an estoppel certificate shall execute and return the certificate within thirty (30) days following receipt.
13.5 Rules of Construction.
The singular includes the plural; the masculine and neuter include the feminine; “ shall” is mandatory; and “may” is permissive.
13.6 Time Is of the Essence.
Time is of the essence regarding each provision of this Agreement as to which time is an element.
13.7 Waiver.
The failure by a Party to insist upon the strict performance of any of the provisions of this Agreement by the other Party, and failure by a Party to exercise its rights upon a D efault by the other Party, shall not constitute a waiver of that Party ’s right to demand strict compliance by the other Party in the future.
13.8 Counterparts.
This Agreement may be executed in two or more counterparts, each of which shall be identical an d may be introduced in evidence or used for any other purpose without any other counterpart, but all of which shall together constitute one and the same agreement.
10/31/2022 22
13.9 Entire Agreement.
This Agreement constitutes the entire agreement between the Parties and supersedes all prior agreements and understandings, both written and oral, between the Parties with respect to the subject matter addressed in this Agreement.
13.10 Severability.
The Parties intend that each and every obligation of the Parties is interdependent a nd interrelated with the other, and if any provision of this Agreement or the application of the provision to any Party or circumstances shall be held invalid or unenforceable to any extent, it is the intention of the Parties that the remainder of this Agr eement or the application of the provision to persons or circumstances shall be rendered invalid or unenforceable. The Parties intend that neither Party shall receive any of the benefits of the Agreement without the full performance by such Party of all of its obligations provided for under this Agreement. Without limiting the generality of the foregoing, the Parties intend that Developer shall not receive any of the benefits of this Agreement if any of Developer ’s obligations are rendered void or unenforceable as the result of any third party litigation, and City shall be free to exercise its legislative discretion to amend or repeal the D evelopment Regulations applicable to the Property and Developer shall cooperate as required, despite this Agreement, should third party litigation result in the nonperformance of Developer ’s obligations under this Agreement. The provisions of this Section 13.10 shall apply regardless of whether the Effective Date occurs and after the Termination Date.
13.11 Construction.
This Agreement has been drafted after extensive negotiation and revision. Both City and Developer are sophisticated parties who were represented by independent counsel throughout the negotiations or City and Developer had the opportunity to be so represented and voluntarily chose to not be so represented. City and Developer each agree and acknowledge that the terms of this Agreement are fair and reasonable, taking into account their respective purposes, terms, and conditions. This Agreement shall therefore be construed as a whole consistent with its fair meaning, and no principle or presumption of contract construction or interpretation shall be used to construe the whole or any part of this Agreement in favor of or against either Party.
13.12 Successors and Assigns; Constructive Notice and Acceptance.
The burdens of this Agreement shall be binding upon, and the benefits of this Agreement shall inure to, all successors in interest to the Parties to this Agreement. All provisions of this Agreement shall be enforceable as equitable servitudes and constitute covenants running with the land. Each covenant to do or refrain from doing some act hereunder with regard to Development of the Property: (i) is for the benefit of and is a burden upon every portion of the Property; (ii) runs with the Property and each portion thereof; and (iii) is binding upon each Party and each successor in interest during its ownership of the Property or any portion thereof. Every person or entity who now or later owns or acquires any right, title, or interest in any part of the Project or the Property is and shall be conclusively deemed to have consented and agreed to every provision of this Agreement. This Section 13.12 applies regardless of whether the instrument by which such person or entity acquires the interest refer s to or acknowledges this Agreement and
10/31/2022 23
regardless of whether such person or entity has expressly entered into an assignment and assumption agreement as provided for in Article 11.
13.13 No Third Party Beneficiaries.
The only P arties to this Agreement are City and Developer . This Agreement does not involve any third party beneficiaries, and it is not intended and shall not be construed to benefit or be enforceable by any other person or entity.
13.14 Applicable Law and Venue.
This Agreement shall be construed and enforced consistent with the laws of the State of California, without regard to conflicts of law principles. Any action at law or in equity arising under this Agreement or brought by any Party for the purpose of enforcing, construing, or determining the validity of any provision of this Agreement shall be filed and tried in the Superior Court of the County of Orange, State of California, or the United States District Court for the Central District of California. The Parties waive all provisions of law providing for the removal or change of venue to any other court.
13.15 Section Headings.
All section headings and subheadings are inserted for convenience only and shall not affect construction or interpretation of this Agreement.
13.16 Incorporation of Recitals and Exhibits.
All of the Recitals are incorporated into this Agreement by this reference. Exhibits A through D are attached to this Agreement and incorporated by this reference as follows:
EXHIBIT
DESIGNATION DESCRIPTION
A Legal Description of Property
B Property Site Map
C Public Benefits
D Form of Assignment and Assumption
13.17 Recordation.
The City shall record th is Agreement and any amendment, modification, or cancellation of this Agreement in the Office of the County Recorder of the County of Orange within the period required by California Government Code section 65868.5. The date of recordation of this Agreement shall not modify or amend the Agreement Date, Effective Date or Termination Date.
10/31/2022 24
13.18 Operating Memoranda.
The provisions of this Agreement require a close degree of cooperation between City and Developer and the refinements and further development of the Project may demonstrate that clarifications are appropriate with respect to the details of performance of City and Developer. If and when, from time to time, during the Term of this Agreement, City and Developer agree that such clarifications are necessary or appropriate, they shall effectuate such clarifications through operating memoranda approved by City and Developer, w hich, after execution, shall be attached hereto, and may be further clarified from time to time as necessary with future approval by City and Developer. No such operating memoranda shall constitute an amendment to this Agreement requiring public notice or hearing. The City Planning Director shall be authorized to make the determination whether a requested clarification may be effectuated pursuant to this Section 13.18 and may execute any operating memoranda hereunder without City Council action.
[SIGNATURE PAGE FOLLOWS]
10/31/2022 25
SIGNATURE PAGE TO
DEVELOPMENT AGREEMENT
“DEVELOPER”
SUNRISE VILLAGE OWNERS, LLC, a
Delaware limited liability company
By: SUNRISE VILLAGE INVESTMENTS,
LLC, a Delaware limited liability
company
By: SOF – Sunrise Village, LLC,
a Delaware limited liability
company, its Administrative
Member
By:
Name:
Title:
“CITY”
CITY OF FULLERTON
By:
Bruce Whitaker
Its: Mayor
ATTEST:
City Clerk
APPROVED AS TO FORM:
Richard D. Jones, Jones & Mayer
City Attorney
10/31/2022
ACKNOWLEDGMENT
A notar y public or other officer completing this 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
County of _____________________________)
On _____________________ ____ before me, _______________________________________ (insert name and title of the officer)
personally appeared ___________________________________________________________, who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature ______________________________ (Seal)
10/31/2022
ACKNOWLEDGMENT
A notary public or other officer completing this 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
County of _____________________________)
On _____________________ ____ before me, _______________________________________ (insert name and title of the officer)
personally appeared ___________________________________________________________, who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she /they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature ______________________________ (Seal)
Exhibit A-1
EXHIBIT A
LEGAL DESCRIPTION OF PROPERTY
Parcel 4, in the City of Fullerton, County of Orange, State of California, as shown on a map filed in Book 88, Page 50, of Parcel Maps, in the office of the County Recorder of said County, together with Lot 1 of Lot Line Adjustment No. 207, in the City of Fullerton, County of Orange, State of California, recorded August 12, 2021 per Document No. 2021000509353 in the office of the County Recorder of said County.
EXCEPTING therefrom the future Lot 3, Lot 4 and Lot 5 as shown on the attached Exhibit A-2.
Exhibit A-2
Exhibit B
EXHIBIT B1
PROPERTY SITE MAP
1 The Property subject to this Development Agreement excludes the commercial areas located shown as Parcels 3, 6 and 7 on this Exhibit B. Upon the recording of a final map for Tentative Tract Map 19148 (TTM 19148), the Development Agreement shall encumber only Lots 1 and 2 of the final map for TTM 19148 shown as Parcels 1 and 2 on this Exhibit B.
Exhibit C-1
EXHIBIT C
PUBLIC BENEFITS
Road Improvements. Developer shall make the curb to curb pavement improvements to Euclid Street, Rosecrans Avenue, Camino Loma and Paseo Dorado along the project frontage pursuant to the Public Works conditions for Major Site Plan ZON -2021-0032 and Tentative Tract Map SUB-2021-0002. Developer shall also make curb to curb pavement improvements to Euclid Street continuing south of the project frontage to the northern limit of the intersection with Bastanchury Road, including the area containing the railroad tracks provided that the City shall first obtain any and all permits and approvals that may be required for Developer’s pavement improvements within the area containing the railroad trac ks. Said railroad tracks are inactive, encased in concrete, and the pavement improvements would be asphalt maintenance. Limits of Road Improvements are generally as depicted on Exhibits C -2 through C-3 attached hereto, and pavement improvements will be in accordance with the recommendations of a current geotechnical report subject to the review and approval of the City Engineer. Road Improvements shall be completed by the earlier of three years following the Effective Date or granting of final occupancy approvals for the Project’s 83
rd unit. Road Improvements shall comply with Public
Works General Conditions for Major Site Plan ZON -2021-0032 and Tentative Tract Map SUB - 2021-0002.
Park Dwelling Fees. Developer shall pay park dwelling fees pursuant to Fullerton Municipal Code Chapter 21.12. The fees may be paid through C ommunity Facilities District (C FD) bond proceeds to the extent such fees are eligible and available for reimbursement and may be pre paid in one lump sum payment in satisfaction of this obligation at the rate effective on the date that the fee is paid . If the CFD is formed within the Property, any park dwelling fees paid by Developer prior to the formation of the CFD shall be reimbursed to Developer, provided such fees are authorized to be paid from proceeds of the CFD. Should a CFD not be formed within the Property or should bond proceeds not be available in all or in part to pay the then current fees, Developer may request to defer payment of said park dwelling fees from building perm it issuance to the earlie st of (1) final inspection for issuance of a temporary certificate of occupancy; (2) final inspection for final certificate of occupancy or equivalent; or (3) one year from the date of the issuance of the corresponding building per mit. Fee Deferral shall be subject to an Agreement which includes the applicant responsibility to cover costs to administer said deferral and interest on unpaid fees, recordation of a lien on the Subject Property, and receipt of a Letter of Credit. Any Fee Deferral shall follow the program established under Ordinance No. 3281 as may be amended from time to time and whether or not the City Council has continued authorization of the program.
Creek Restoration. To the extent technically and financially feas ible to construct and maintain, Developer shall restore the above -ground portions of the channel along Euclid Street between Rosecrans Avenue and Paseo Dorado to a more natural riparian setting, which design must meet the reasonable approval of the Directo r. The Director shall approve the design if the design incorporates: (1) slope improvements using soil amendments; (2) planting enhancements with site appropriate native trees, shrubs, grasses, and groundcovers (examples of plant which tend to be acceptable include cercis occidentalis, toyon, native salvia, sage, deer grass, and baccharis); and (3) the installation of a new vegetative buffer strip along the existing slopes designed to reduce the amount of surface runoff, reduce stream bank erosion, increase water infiltration, and provide animal habitat.
Exhibit C-2
Exhibit C-3
Exhibit D-1
EXHIBIT D
FORM OF ASSIGNMENT AND ASSUMPTION
RECORDING REQUESTED BY AND
WHEN RECORDED RETURN TO:
Sunrise Village Owners, LLC
c/o Shopoff Realty Investments, L.P
2 Park Plaza, Suite 700
Irvine, CA 92614
Attn: William A. Shopoff
SPACE ABOVE THIS LINE FOR RECORDER’S USE
ASSIGNMENT AND ASSUMPTION OF DEVELOPMENT AGREEMENT
This Partial Assignment and Assumption of Development Agreement (“Agreement”) is dated for informational purposes only as of ____________, 2022, and is entered into by and between Sunrise Village Owners, LLC, a Delaware limited liability company (“Assignor”), and ________________________ (“Assignee”).
R E C I T A L
A. Assignor and the City of Fullerton, a California municipal corporation (“ City”), entered into that certain Development Agreement recorded on _________________, 2022, as Document No. _____________ in the Official Records (the “ Official Records ”) of Orange County, California (the “ Development Agreement ”). The Development Agreement concerns certain land, including the real property identified on Exhibit A attached hereto (the “Property”).
B. Assignee has or will purchase from Assignor the Property in accordance with the terms of that certain Purchase and Sale Agreement dated _______________, between Assignor and Assignee.
C. This Agreement shall be effective as of the later of (i) the date that the grant deed conveying the Property to Assignee is recorded in the Official Records and (ii) the date that this Agreement is recorded in the Official Records (the “Effective Date”).
NOW, THEREFORE, for good and valuable consideration, receipt of which is hereby acknowledged, Assignor and Assignee agree as follows:
1. Assignment of Rights. Except for the “Excluded Rights and Obligations” listed in Schedule 1 which shall remain the rights and obligations of Assignor, Assignor hereby sells, transfers, assigns, conveys and delivers to Assignee all of Assignor's rights, title, interests, and
Exhibit D-2
obligations to, in and under the Development Agreement arising from and after the Effective Date with respect to the Property, including the obligation to perform such obligations that must be performed outside of the Property that are a condition precedent to Assignee’s right to develop the Property (the “ Assumed Rights and Obligations ”). This Agreement is only intended to assign those rights and obligations of Assignor under the Development Agreement which concern the Property and does not assign any rights or obligations under the Development Agreement with regards to any of the other property described in the Development Agreement.
Assignor makes no representation or warranties, express or implied, concerning the Development Agreement, except as provided herein.
2. Assumption of Responsibilities . Assigne e does hereby expressly and unconditionally agree to assume all of Assignor's rights, title and interests to, in and under the Development Agreement as well as all responsibilities, liabilities and obligations under the Development Agreement, in each case solely to the extent arising from and after the Effective Date and solely to the extent relating to the Property, except for the Excluded Rights and Obligations. Assignee shall not be responsible for any default by Assignor with regards to the Property under the Development Agreement prior to the Effective Date.
3. Confirmatory Acts, Instruments. Each party hereby covenants to the other party that it will, at any time and from time to time, upon written request therefor, execute and deliver to such other party, its successors and/or assigns, any new or confirmatory instruments and do and perform any other acts which such party, its successors, and/or assigns may reasonably request in order to fully transfer to such other party all rights and obligations of A ssignor intended to be transferred and assigned hereby.
4. Successors and Assigns. This Agreement shall be binding upon and inure to the benefit of the heirs, successors, executors, administrators, and assigns of the parties.
5. Amendments. This Agreement represents the final and entire agreement between the parties in connection with the subject matter hereof. No provision of this Agreement may be amended or added to except by an agreement in writing signed by the parties hereto or their respective successors-in-interest.
6. Severability. Any provision of this Agreement which shall prove to be invalid, void, or illegal shall in no way affect, impair, or invalidate any other provision hereof and such other provisions shall remain in full force and effect.
7. Indemnity. Assignee shall indemnify, defend and hold harmless Assignor, Assignor’s affiliated entities and persons, and their respective members, partners, officers, directors, shareholders and employees from any claims, demands, loss, liability, damages, cos ts or expenses (including attorneys' fees) made against or suffered by Assignor with regard to any breach by Assignee of the Development Agreement from and after the Effective Date.
8. Attorneys' Fees. In the event of any action or proceeding brought by either party against the other under this Agreement, the prevailing party shall be entitled to recover all costs and expenses including the actual fees of its attorneys incurred for prosecution, defense, consultation, or advice in such action or proceeding.
Exhibit D-3
9. Notice. The Notice Address described in the Development Agreement for the Assignee shall be:
If to Assignee: ___________________________
With copies to: ___________________________
10. Governing Law. This Agreement has been prepared, negotiated and executed in, and shall be construed in accordance with, the laws of the State of California, without regard to conflict of law rules.
11. Counterparts. This Agreement may be executed in multiple counterparts, which together shall constitute the Agreement.
“Assignor”
SUNRISE VILLAGE OWNERS, LLC, a
Delaware limited liability company
By: SUNRISE VILLAGE INVESTMENTS,
LLC, a Delaware limited liability
company,
By: SOF – Sunrise Village, LLC, a
Delaware limited liability company, its
Administrative Member
By:
Name:
Title:
“Assignee”
By:
Name:
Title:
By:
Name:
Title:
Exhibit D-4
Schedule 1
to Assignment and Assumption of Development Agreement
Excluded Rights and Obligations
Excluded Obligations:
Excluded Rights:
Exhibit D-5
Exhibit “A”
to Assignment and Assumption of Development Agreement
Legal Description of Property
THE LAND REFERRED TO HEREIN BELOW IS SITUATED IN THE CITY OF
FULLERTON, IN THE COUNTY OF ORANGE, STATE OF CALIFORNIA, AND IS DESCRIBED AS FOLLOWS:
10/28/2022
Exhibit D-6
City Acknowledgment of Assignment and Assumption of Development Agreement
Pursuant to Article 11 of the Development Agreement, the City hereby acknowledges that:
(1) Assignee has provided substitute security equivalent to security provided by Assignor to the City in order to secure performance of Assignor’s obligations with regards to the Property under the Development Agreement; (2) as to unsecured obligations with regards to the Property under the Development Agreement, Assignee either has provided security satisfactory to the City or otherwise has demonstrated to the City’s satisfaction that Assignee has the financial resources or commitments available to perform the Assumed Rights and Obligations at the time and in the manner required under the Development Agreement and Development Regulations; and (3) that Assignor, effective upon actual transfer of ownership, will have satisfied the conditions to the release of the transferring Developer set forth in Article 11 of the Development Agreement and shall be released from Assignor’s obligations under the Development Agreement (other than the Excluded Rights and Obligations) solely with respect to the Property. City hereby acknowledges and agrees that, as of the date of its execution of this Acknowledgment of Assignment and Assumption of Development Agreement, Assignor is not in default of any obligations under the Development Agreement. The City, Assignor and Assignee understand and agree that the City may enforce its rights under the Development Agreement as to the Property against Assignee.
The City, Assignor and Assignee hereby acknowledge and agree that a default by Assignee of the Assumed Rights and Obligations as to the Property shall not constitute a default by Assignor under the Development Agreement as to the remaining property subject to the Development Agreement and a default by Assignor of Assignor’s Excluded Rights and Obligations or other obligations under the Development Agreement shall not constitute a default by Assignee under the Development Agreement as to the Property. City further acknowledges and agrees to deliver any notice of a breach or violation of the Development Agreement to both Assignee and Assignor.
READ AND APPROVED:
City of Fullerton,
a California municipal corporation
By:
Name:
Title:
APPROVED AS TO LEGAL FORM:
ATTEST:
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