Agenda Item No: 1.d
PLACENTIA CITY COUNCIL AGENDA REPORT
Meeting Date: December 16, 2025
Submitted by: Andrew Gonzales
From: Development Services
Subject:
SECOND READING AND ADOPTION OF ORDINANCE NO. O-2025-12, AN ORDINANCE
OF THE CITY COUNCIL OF THE CITY OF PLACENTIA, CALIFORNIA, APPROVING DISPOSITION AND DEVELOPMENT AGREEMENT NO. DDA 2025-01 FOR THE DEVELOPMENT OF A FOUR-STORY, 86-ROOM HOTEL AT 450 S. PLACENTIA AVENUE.
Financial Impact:
Fiscal Impact:
Revenue: $179,519.14 Development Impact Fees
$127,444.00 Property Sale
$378,304.97 Annual Estimated Transit Occupancy Tax
Summary:
On December 2, 2025, City Council conducted a Public Hearing to consider Development Plan Review (DPR) 2025-01, Use Permit (UP) 2025-02, and Disposition and Development Agreement (DDA) 2025-01 for the development of an approximately 42,631-square-foot, four- story, 86-room hotel building with a 24,210-square-foot subterranean and grade-level parking garage, enhanced landscaping and hardscape improvements, an outdoor pool area, associated guest amenities, and onsite sale and consumption of sealed beer and wine exclusively for registered hotel guests. The DDA is intended to authorize the sale and transfer of a City-owned parcel to C Y Hospitality, LLC, and to establish the terms, conditions, and property owner obligations associated with the proposed development.
Subsequent to closing the Public Hearing, City Council adopted Resolution No. R-2025-71, a Resolution of the City Council of the City of Placentia, California, adopting a Notice of Exemption by making the findings that the project is Categorically Exempt pursuant to the California Environmental Quality Act (CEQA), as set forth in Title 14 CCR § 15332 (Class 32 – Infill Development Projects) and the City of Placentia Environmental Guidelines; and approving DPR 2025-01 and UP 2025-02 to allow the establishment and operation of the previously described hotel within the C-2 (H-65) Zoning District located at 450 S. Placentia Avenue (APN 339-442-04). Additionally, City Council adopted Resolution No. R-2025-74, a Resolution of the City Council of the City of Placentia, California, approving a Purchase and Sale Agreement for a portion of City-owned property located at the end of the cul-de-sac fronting 450 S. Placentia Avenue and finding the action to be Categorically Exempt under CEQA Guidelines Section 15332 (Infill Development).
1 Additionally, City Council conducted first reading of Ordinance No. O-2025-12, an Ordinance of the City Council of the City of Placentia, California, approving DDA 2025-01 with C Y Hospitality, LLC, to provide relief from certain development standards related to the development of a four-story, 86-room hotel within the C-2 (H-65) Zoning District located at 450 S. Placentia Avenue, Placentia, California (APN 339-442-04). Ordinance No. O-2025-12 has been prepared for Second Reading and adoption.
Recommendation:
Recommended Action: It is recommended that the City Council:
Waive full reading, by title only, and adopt Ordinance No. O-2025-12, an Ordinance of the City Council of the City of Placentia, California, approving Disposition and Development Agreement No. DDA 2025-01 with CY Hospitality, LLC, to provide relief from certain development standards related to the development of a four-story, 86-room hotel within the C-2 (H-65) Zoning District located at 450 S. Placentia Avenue, Placentia, California (APN 339-442-04).
Strategic Plan Statement:
This item is consistent with the City Council approved Five Year Strategic Goal 3: Promote community and economic development, specifically, Objective No. 3.3: Continue to recruit and attract retail, hotel and other commercial businesses that complement adjacent City assets and attractions (Anaheim Resort District, Cal State Fullerton, OC Vibe and Angel Stadium Projects).
Discussion:
On December 2, 2025, City Council conducted a Public Hearing to consider the DPR, UP, and DDA, along with a General Plan Conformity finding. The project authorizes construction of a four-story, 86-room hotel at 450 S. Placentia Avenue with a 24,210-square-foot subterranean and grade-level parking structure containing 82 spaces, landscaping and hardscape improvements, a second-floor amenity deck, and onsite sale and consumption of alcoholic beverages for registered hotel guests. The DDA provides for the transfer of approximately 6,358 square feet of surplus City-owned right-of-way and allows limited deviations from certain C-2 (H-65) development standards to support coordinated site design and hotel operations.
The project site consists of a vacant parcel located at the terminus of Industrial Way within a commercial and light-industrial corridor. A remnant portion of City-owned right-of-way created during prior roadway improvements will be merged with the private parcel to form a functional development site. The hotel design includes a centrally located building footprint, subterranean/grade-level parking, and contemporary architectural features consistent with surrounding commercial uses. The Fire & Life Safety Department approved required Alternative Means and Methods, and interdepartmental review produced no outstanding issues.
The project is consistent with the City’s General Plan policies that encourage reinvestment, corridor revitalization, and the development of underutilized infill sites. The hotel complements adjacent commercial and hospitality uses, enhances the appearance and economic vitality of the South Placentia Avenue corridor, and supports local economic-development objectives through new lodging accommodations and associated revenues.
The Housing, Community and Economic Development (HCED) Committee reviewed the project on July 23, 2025, and expressed overall support. On November 10, 2025, the Planning Commission held a duly noticed public hearing and recommend approval of the project 2 entitlements and adoption of a CEQA Class 32 Infill Exemption. City Council subsequently approved the project actions as recommended.
CEQA
The proposed Development Plan Review, Use Permit, and Disposition and Development Agreement were reviewed by City staff in accordance with CEQA. Based on this review, Staff and the Planning Commission recommended that the City Council find the project to be Categorically Exempt under State CEQA Guidelines Section 15332 (Class 32 – Infill Development Projects). The proposed hotel represents a limited-scale infill development on a previously disturbed site located within an urbanized area of the City, is consistent with the adopted General Plan and zoning, contains no habitat value for endangered or threatened species, and can be adequately served by existing utilities and public services. Accordingly, the project qualifies for a Class 32 exemption and will not result in significant environmental impacts.
On December 2, 2025, City Council adopted Resolution No. R-2025-71, finding that DPR 2025-01, UP 2025-02, and associated project actions are exempt under CEQA Guidelines Section 15332. City Council also adopted Resolution No. R-2025-74, a Resolution of the City Council of the City of Placentia, California, approving a Purchase and Sale Agreement for a portion of City-owned property located at the end of the cul-de-sac fronting 450 S. Placentia Avenue and finding the action to be Categorically Exempt under CEQA Guidelines Section 15332 (Infill Development). By adopting these resolutions, City Council further determined that first reading and adoption of Ordinance No. O-2025-12, is likewise exempt under CEQA Guidelines Section 15332. A Notice of Exemption will be filed following final adoption of Ordinance No. O-2025-1
CONCLUSION
The proposed project aligns with the City’s General Plan and the Placentia Municipal Code (PMC), meeting the City's vision for sustainable growth, economic revitalization, and urban enhancement. The General Plan serves as a blueprint for balanced development, ensuring a harmonious integration of residential, commercial, and public spaces while promoting infrastructure efficiency, environmental sustainability, and community well-being. The HCED support of the project affirms its compatibility with adjacent land uses, supporting the revitalization of an underutilized site and fostering a more dynamic and connected urban environment. The proposed hotel development will expand lodging opportunities within the City, attract tourism-related spending, and strengthen the local economy by supporting nearby businesses and creating new employment opportunities. Planned site and streetscape improvements, including pedestrian-friendly enhancements and a contemporary architectural design, will contribute positively to the visual character and long-term vitality of the surrounding area. By adhering to the development framework set forth in the General Plan and Placentia Municipal Code, the project promotes economic sustainability and enhances the City’s hospitality offerings as part of its continued revitalization efforts consistent with the General Plan.
Fiscal Impact Summary:
The proposed development will generate one-time revenue in the form of approximately $179,519.14, in development impact fees and $127,444.00, from the sale of City-owned property under DDA 2025-01. Ongoing revenue will be produced through the City’s ten (10) percent Transient Occupancy Tax (TOT). Based on the applicant’s projections for occupancy and average daily room rates, the proposed hotel is anticipated to generate approximately 3 $378,304.97, in annual TOT revenue. In addition to these revenues, the project is expected to create permanent hospitality jobs and temporary construction-related employment, resulting in additional positive economic benefits to the City.
Attachments
1.O-2025-12 Development Agreement.docx
4 Ordinance No. O-2025-12
ORDINANCE NO. O-2025-12
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF
PLACENTIA, CALIFORNIA APPROVING DISPOSITION AND
DEVELOPMENT AGREEMENT NO. DDA 2025-01 WITH CY
HOSPITALITY, LLC, TO PROVIDE RELIEF FROM CERTAIN
DEVELOPMENT STANDARDS RELATED TO THE DEVELOPMENT
OF A FOUR-STORY, 86-ROOM HOTEL WITHIN THE C-2 (H-65)
ZONING DISTRICT LOCATED AT 450 S. PLACENTIA AVENUE,
PLACENTIA, CALIFORNIA (APN 339-442-04)
City Attorney’s Summary
An ordinance of the City of Placentia, California approving Disposition and Development Agreement No. 2026-01 between the City of Placentia and C Y Hospitality, LLC, related to the sale and terms for the transfer of ownership of a 6,358-square-foot City-owned site and provide relief from certain development standards for the construction, establishment, and operation of an of an approximately 42,631-square-foot, four-story, 86-room hotel building with an overall height of approximately 63 feet, including a 24,210-square-foot subterranean and grade level parking garage with 82 spaces, enhanced landscaping and hardscape improvements; including the onsite sale and consumption of alcoholic beverages exclusively for registered hotel guests at 450 S. Placentia Avenue. The City Council has adopted a Notice of Exemption for the project by making the findings that the project is categorically exempt pursuant to CEQA set forth in Title 14 CCR § 15332 (Class 32 – Infill Development Projects) and the City of Placentia Environmental Guidelines.
A. Recitals.
WHEREAS, Yagnesh (“Yogi”) Patel, representing “C Y Hospitality, LLC” (“Applicant” hereinafter), which will be the owner of the property located at 450 S.
Placentia Avenue, Placentia, California filed an application for Development Plan Review No. 2025-01, Use Permit No. UP 2025-02, and Disposition and Development Agreement No. DDA 2025-01 to develop, establish, and operate a four-story, 86-room hotel development.
WHEREAS, California Government Code § 65867 authorizes the City of Placentia to enter into a disposition and development agreement that gives the applicant certain vested rights. In this case, Disposition and Development Agreement No. DDA 2025-01 would, in pertinent part, memorialize sale and terms for the transfer of ownership from the City of Placentia to C Y Hospitality Group.
WHEREAS, on November 10, 2025, the Planning Commission conducted a duly noticed public hearing, as required by law, and after holding the public hearing, recommending to the City Council approval of the aforementioned entitlements and Disposition and Development Agreement No. DDA 2025-01.
5 Ordinance No. O-2025-12
WHEREAS, all other legal prerequisites to the adoption of this Ordinance have occurred.
B. Ordinance.
NOW, THEREFORE, it is hereby found, determined and resolved by the City Council of the City of Placentia as follows:
1. The City Council hereby finds that the Disposition and Development Agreement between the City and Applicant conforms to the policies and programs of the General Plan.
2. The City Council hereby approves the Disposition and Development Agreement between the City and C Y Hospitality, LLC, in the form attached hereto as “Exhibit A” and incorporated by this reference.
3. The City Council of the City of Placentia hereby finds, based on substantial evidence and its independent judgment, that the project satisfies all criteria for a Class 32 (Infill Development Projects) categorical exemption under CEQA Guidelines §15332 and will not result in any significant environmental effects.
4. Non-Substantive Changes to the Disposition and Development Agreement.
The City Council hereby grants to the City Administrator and/or her designee the authority to make non-substantive changes to the Disposition and Development Agreement subsequent to the date of adoption of this Ordinance as may be necessary to effectively memorialize the intent of the parties consistent with the City Council’s findings and direction herein.
5. Severability. If any section, subsection, sentence, clause or phrase of this Ordinance is for any reason held invalid by a court of competent jurisdiction, such a decision shall not affect the validity of the remaining portions of this Ordinance. The City Council declares that it would have passed this Ordinance and each section, subsection, sentence, clause, or phrase thereof, irrespective of the fact that one or more sections, subsections, sentences, clauses, or phrases, be declared invalid.
6. The City Clerk shall certify the adoption of this Resolution.
7. Effective Date. This ordinance shall be in full force and effect commencing thirty (30) days after its final adoption and a summary hereof shall be published once within fifteen (15) days in the Placentia News Times, a newspaper of general circulation printed and published in the County of Orange and circulated in the City of Placentia and hereby designated for that purpose by the City Council.
INTRODUCED at a regular meeting of the City Council of the City of Placentia held on December 2, 2025.
6 Ordinance No. O-2025-12
PASSED, APPROVED AND ADOPTED this 16th day of December 2025.
________________________________
Kevin Kirwin, Mayor
ATTEST:
Robert S. McKinnell, City Clerk
STATE OF CALIFORNIA
COUNTY OF ORANGE
I, Robert S. McKinnell, City Clerk of the City of Placentia, do hereby certify that the foregoing Ordinance was introduced at a regular meeting of the City Council of the City of Placentia, held on the 2nd day of December 2025, and was finally adopted at a regular meeting held on the 16th day of December 2025, by the following vote:
AYES: COUNCILMEMBERS:
NOES: COUNCILMEMBERS:
ABSENT: COUNCILMEMBERS:
ABSTAIN: COUNCILMEMBERS:
___________________________________
Robert S. McKinnell, City Clerk
APPROVED AS TO FORM:
___________________________________
Christian L. Bettenhausen, City Attorney
7 EXHIBIT “A”
DISPOSITION AND DEVELOPMENT AGREEMENT 2025-01
8 Exempt from Filing Fees Gov. Code Section 27383
DEVELOPMENT AGREEMENT
between
CITY OF PLACENTIA,
a California municipal corporation
and
CY HOSPITALITY, LLC,
a limited liability company
9 DEVELOPMENT AGREEMENT
This Development Agreement ("Agreement") is entered into effective on the date it is recorded with the Orange County Recorder (hereinafter the "Effective Date") by and between the CITY OF PLACENTIA ("City"), and CY HOSPITALITY, LLC, a limited liability company (hereinafter "Developer"), may collectively be referred to herein as the "Parties".
RECITALS
WHEREAS, City is authorized to enter into binding development agreements with persons having legal or equitable interests in real property for the development of such property, pursuant to Section 65864, et seq. of the Government Code; and
WHEREAS, Developer is under contract to lease purchase the real property that is the subject of this Agreement (the "City Property"); and
WHEREAS, the Project consists of the development of a hotel to be constructed at approximately 63 feet tall, with 86-guestroom keys, approximately 42,631 sq. ft. of total buildable area, approximately 24,210 sq. ft. of parking area, 82 parking spaces and 545 sq. ft. of lobby area ; and
WHEREAS, Developer has requested City to enter into a Development Agreement and proceedings have been taken in accordance with Section 68564, et seq. of the Government Code and the rules and regulations of City; and
WHEREAS, all of the rights and benefits granted to Developer in this Agreement shall inure to the benefit of the City Property and Developer and Developer's successors -in-interest; and
WHEREAS, all of the duties and obligations of Developer shall remain the duties and obligations of Developer and Developer's successors-in-interest except as otherwise provided for herein; and
WHEREAS, all actions taken and approvals given by City have been duly taken or approved in accordance with all applicable legal requirements for notice, public hearings, findings, votes, and other procedural matters; and
WHEREAS, development of the City Property in accordance with this Agreement will provide substantial benefits to City and will further enhance the policies and goals of City; and
WHEREAS, this Agreement will eliminate uncertainty in planning and provide for the orderly development of the Property, ensure progressive installation of necessary improvements, provide for public services appropriate to the development of the Project, and generally serve the purposes for which development agreements under Sections 65864, et seq. of the Government Code are intended; and
10 7
WHEREAS, Developer has incurred and will in the future incur substantial costs in excess of the generally applicable requirements in order to assure vesting of legal rights to develop the Property and City Property in accordance with this Agreement.
AGREEMENT
NOW, THEREFORE, in consideration of the above recitals and of the mutual cov enants hereinafter contained and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties agree as follows:
1. DEFINITIONS AND EXHIBITS.
1.1 Definitions. The following terms when used in this Agreement shall be defined as follows:
1.1.1. "Agreement" means this Development Agreement.
1.1.2. "City" means the City of Placentia, a California municipal corporation and charter city.
1.1.3. "City Council" means the City Council of the City.
1.1.4 “City Property” means approximately 6,358 square feet owned by the City directly adjacent to 450 S. Placentia Avenue as described in Exhibit A-1 and shown on Exhibit B, and includes all of the City’s right, title and interest in and to the City Property, includi ng all privileges, easements, improvements and appurtenances benefiting the City Property, except as expressly excluded, all of the City’s interest, if any, in all mineral and water rights and all easements, rights -of-way and other appurtenances used or connected with the beneficial use or enjoyment of the City Property, and all tangible and intangible personal property located on or related to the City Property.
1.1.4 "Commence(s) Operations" or "Commencement of Operations" means the date on which the Hotel opens for business to the general public.
1.1.4. "Development" means the improvement of the Property for the purposes of completing the structures, improvements and facilities comprising the Project including, but not limited to:
grading; the construction of infrastructure and public and private facilities related to the Project whether located within or outside the Property; the construction of buildings and structures; and the installation of landscaping. "Development" includes the maintenance, repair, reconstruction or redevelopment of any building, structure, improvement or facility after the construction and completion thereof.
1.1.5. "Development Approvals" mean all permits and other entitlements for the development and use of the Property subject to approval or issuance by City in connection with development of the Property including, but not limited to Development Plan Review (DPR) No. 2025-01 and Use Permit (UP) No. 2025-02 compliance with the California Environmental Quality Act and Lot Line Adjustment.
1.1.6. "Development Exaction" means any requirement of City in connection with or pursuant to any Land Use Regulation or Development Approval for the dedication of land, the construction of improvements or public facilities, or the payment of fees in order to lessen, offset, mitigate or compensate for the impacts of development on the environment or other public interests.
1.1.7. "Development Impact Fee" means a monetary exaction other than a tax or special assessment, whether established for a broad class of projects by legislation of general applicability or imposed on a specific project on an ad hoc basis, that is charged by a local agency to the applicant in 11 8
connection with approval of a development project, for the purpose of defraying all or a portion of the cost of public facilities related to the development project, but does not include fees specified in Government Code Section 66477, fees for processing applications for governmental regulatory actions or approvals, fees collected under development agreements adopted pursuant to Article 2.5 (commencing with Section 65864 of Chapter 4 of the Government Code). "Development Impact Fee" expressly excludes processing fees and charges of every kind and nature imposed by City to cover the estimated actual costs to City of processing applications for Development Approvals or for monitoring compliance with any Development Approvals granted or issued, including, without limitation, fees for zoning variances; zoning changes; use permits; building inspections; building permits; filing and processing applications and petitions filed with the local agency formation commission or conducting preliminary proceedings or proceedings under the Cortese -Knox-Hertzberg Local Government Reorganization Act of 2000, Division 3 (commencing with Section 56000) of Title 5 of the Government Code. For purposes of this Agreement, Development Impact Fees include those fees listed in Exhibit "E" attached hereto.
1.1.8. "Development Plan" means the Development Approvals and the Existing Land Use Regulations applicable to Development of the Property.
1.1.9. "Developer" means CY HOSPITALITY, LLC, a limited liability company, and its successors in interest to all or any part of the Property.
1.1.10. "Existing Development Approvals" means all Development Approvals approved or issued by City prior to or contemporaneously with City's approval of this Agreement. The Existing Development Approvals include, without limitation, the approvals incorporated herein as Exhibit "C".
1.1.11. "Existing Land Use Regulations" mean all Land Use Regulations in effect on the Effective Date. Existing Land Use Regulations shall include the Regulations incorporated herein as Exhibit "D" as of the Effective Date.
1.1.12 "Franchise Agreement" means an agreement between the Developer and Tru by Hilton which provides for the use of the Tru by Hilton flag or brand, and describes, in detail, the stan dards of construction and standards of operation for the Hotel, as amended or replaced from time to time.
1.1.13 "Franchisor" means Tru by Hilton or such other hotel franchise approved by the City acting in its sole and absolute discretion.
1.1.14. "Good Faith Deposit " means a deposit made by the Developer to the City pursuant to Section 3.3 hereof. All Good Faith Deposits shall be held by the City pursuant to the terms and conditions of this Agreement.
1.1.15. "Hotel" means the Tru by Hilton as described in the Scope of Development and this Agreement.
1.1.16. "Hotel Manager " means CY Hospitality, LLC, a limited liability company or such other person or entity approved by the City acting in its reasonable discretion.
1.1.17. "Hotel Owner" means CY Hospitality LLC, a limited liability company.
1.1.18. "Land Use Regulations" mean all ordinances, resolutions, codes, rules, regulations and official written policies of City governing the development and use of land, including, without limitation, the permitted use of land, the intensity of use, subdivision requirements, the maximum 12 9
height and size of proposed buildings, the provisions for reservation or dedication of land for public purposes, and the design, improvement and construction standards and specifications applicable to the development of the property, as modified or supplemented by the Existing Development Approvals. "Land Use Regulations" does not include any City ordinance, resolution, code, rule, regulation or official policy, governing:
(a) the conduct of businesses, professions, and occupations;
(b) taxes and assessments;
(c) the control and abatement of nuisances;
(d) the granting of encroachment permits and the conveyance of rights and interests that provide for the use of or the entry upon public property; or
(e) the exercise of the power of eminent domain.
1.1.20. "Lot" means a legally subdivided lot.
1.1.21. "Mortgagee" means a mortgagee of a mortgage, a beneficiary under a deed of trust or any other security-device lender, and their successors and assigns.
1.1.22. "Project" means the Development of the Property and the Hotel as contemplated by the Development Plan as such Plan may be further defined, enhanced or modified pursuant to the provisions of this Agreement.
1.1.23. "Property" means the real property consisting of approximately 15,195 square feet owned by CY Hospitality, located at 450 S. Placentia Avenue also identified as Assessor’s Parcel Number 339-442-01 described on Exhibit "A-2" and shown on Exhibit "B" of this Agreement.
1.1.24. "Reservations of Authority" means the rights and authority excepted from the assurances and rights provided to Developer under this Agreement and reserved to City under Section
3.6 of this Agreement.
1.1.25. "Subsequent Development Approvals" means all Development Approvals approved by City subsequent to the Effective Date.
1.1.26. "Subsequent Land Use Regulations" means any Land Use Regulations adopted and effective after the Effective Date of this Agreement.
1.2 Exhibits. The following documents are attached to, and by this reference made a part of, this Agreement:
Exhibit "A-1" Legal Description of City Property
Exhibit "A-2" Legal Description of Property
Exhibit "B" Map of Project Site
Exhibit "C" Development Approvals
Exhibit "D" Land Use Regulations
Exhibit "E" Development Impact Fees
Exhibit "F" Schedule of Performance
13 10
2. SUBJECT OF AGREEMENT
2.1 Purpose of Agreement. The purpose of this Agreement is Developer desires to purchase the City Property of approximately 6,358 square feet from the City and develop a Tru by Hilton Hotel (“Hotel”) in combination with the Property at 450 S. Placentia Avenue.
2.2 Project and Project Site. The Project consists of an approximately 42,631 square foot, 4-story, 63-foot high, 86-room hotel building on a Project Site consisting of a +/-21,553 gross acre unimproved site. The Project will feature a 24,210 square foot subterranean garage with an 82-space parking lot, decorative hardscape and landscape impro vements, and associated amenities for hotel guests including the onsite sale and consumption of alcoholic beverages exclusively for registered hotel guests as an accessory use to the primary hotel operations.
3 GENERAL PROVISIONS.
3.1 Binding Effect of Agreement. The Property is hereby made subject to this Agreement upon the Effective Date. Development of the Property is hereby authorized and shall be carried out only in accordance with the terms of this Agreement. Notwithstanding the foregoing, nothing contained in this Agreement shall be deemed to be a covenant to develop or construct the Project or any portion of the Project; provided, however, that to the extent that any phase of the Project is developed, Developer shall be obligated to construct the public improvements required herein related to that phase of development. Developer is authorized to execute this Agreement and have it recorded pursuant to the terms of this Agreement.
3.2 Ownership. City and Developer represent and covenant that each has a legal or equitable interest in the Property.
3.3 Term. The term of this Agreement shall commence on the Effective Date and shall continue for a period of five (5) years thereafter or such earlier date as set forth in this Agreement (the “Termination Date”).
3.4 Assignment. This Agreement may not be assigned except as otherwise contemplated herein.
3.5 Amendment or Cancellation of Agreement. This Agreement may be cancelled in its entirety by written mutual consent of all parties or their respective successors or assigns with respect to their respective portions of the Property. Any amendment or partial cancellation of a portion of this Agreement requires the written mutual consent of all parties or their respective successors or assigns with respect to their respective portions of the Property in the manner provided for in Government Code Section 65868. This provision shall not limit any remedy for default of City or Developer as provided by this Agreement. The Termination or expiration of this Agreement on its stated terms is not a cancellation or amendment requiring further action by the City Council.
3.6 Termination. This Agreement shall be deemed terminated and of no further effect upon the occurrence of any of the following events:
(a) Upon the Termination Date as set forth in Section 3.3.
(b) Entry of a final judgment setting aside, voiding or annulling the adoption of the ordinance approving this Agreement.
(c) The adoption of a referendum measure overriding or repealing the ordinance approving this 14 11
Agreement.
Termination of this Agreement shall not constitute termination of any other land use entitlements approved for the Property including but not limited to, all conditions and mitigation measures imposed as part of such entitlements prior to the date of termination. Upon the termination of this Agreement, no party shall have any further right or obligation hereunder except with respect to any obligation to have been performed prior to such termination or with respect to any default in the performance of the provisions of this Agreement that has occurred prior to such termination or with respect to any obligations that are specifically set forth as surviving this Agreement.
3.7 Notices.
(a) As used in this Agreement, "notice" includes, but is not limited to, the communication of notice, request, demand, approval, statement, report, acceptance, consent, waiver, appointment or other communication required or permitted hereunder.
(b) All notices shall be in writing and shall be considered given either: (i) when delivered in person to the recipient named below; or (ii) on the date of delivery shown on the return receipt, after deposit in the United States mail in a sealed envelope as either registered or certified mail with return receipt requested, and postage and postal charges prepaid, and addressed to the recipient named below; or (iii) on the date of delivery shown in the records of the telegraph company after transmission by telegraph to the recipient named below. All notices shall be addressed as follows:
If to City:
City of Placentia,
401 E. Chapman Avenue
Placentia, CA 92870
Attn: City Administrator
With a copy to:
Christian L. Bettenhausen, City Attorney
Jones & Mayer
3777 N. Harbor Blvd.
Fullerton, CA 92835
If to Developer:
Attention: Yagnesh Patel, Owner
CY Hospitality, LLC
17708 Alburtis Avenue
Artesia, CA 90701
Telephone: (626) 731-9715
Email: [email protected]
With a copy to:
Attention:
15 12
(c) Either party may, by notice given at any time, require subsequent notices to be given to another person or entity, whether a party or an officer or representative of a party, or to a different address, or both. Notices given before actual receipt of notice of change shall not be invalidated by the change.
4 REPRESENTATIONS, WARRANTIES AND DISCLOSURES.
4.1 City’s Representations, Covenants, Warranties, And Obligations. City represents, covenants, and warrants as follows and all of these representations and warranties shall be true and correct as of the Effective Date:
4.1.1 City is a California municipal corporation, duly formed and validly existing under the laws of the State of California, is legally permitted to enter into this Agreement and to issue the permits and entitlements required to perform this Agreement, and has or will have obtained all required authorizations prior to the Close of Escrow.
4.1.2 The entering into this Agreement does not constitute a violation or breach by City of any contract or other instrument to which it is a party, or to which it is subject, or by which any of its assets or properties may be affected, or a violation of any judgment, order, writ, injunction, or decree issued against or imposed upon it, or, to the best of City’s knowledge, will result in a violation of any applicable law, order, rule or regulation of any governmental authority.
4.1.3 No elected official or employee of City, during the term of his or her office or service with City, shall have any direct or indirect interest in this Agreement or obtain any present or anticipated material benefit arising therefrom.
4.1.4 City is not relying upon any representations or warranties by Developer other than those expressly set forth in this Agreement and the representations and warranties of Developer set forth herein constitute all of the representations and warranties of Developer in regard to this transaction.
4.1.5 To the best of the City’s knowledge, there are no conditions or restrictions which will adversely affect the title to the Property or Developer’s right to construct the Project, as provided in this Agreement, that have not been disclosed in writing to Developer.
4.1.6 To the City’s knowledge, there is no suit, legal action, administrative arbitration or other proceeding or governmental investigation process which has been served upon City or, which to City’s best knowledge, is otherwise pending or threatened against City in which any party is making or has made a claim or defense that, if sustained, would adversely affect the performance of City under this Agreement or adversely interfere with the ability of City to consummate the transactions contemplated herein.
4.2 Developer’s Representations, Covenants, Warranties and Obligations. Developer makes the following representations and warranties, which shall be true and correct at the Effective Date.
4.2.1 Developer is a limited liability company, duly formed, validly existing and in good standing under the laws of the State of California and is qualified to do business in the State of California.
Developer has duly authorized, executed, and delivered this Agreement, all consents required under Developer’s organizational documents have been obtained, the person signing this Agreement on Developer’s behalf are authorized and empowered to do so, this Agreement is binding upon Developer, all documents that are to be executed by Developer and delivered hereunder have been, or on the Closing Date will be, duly executed, authorized by, delivered by, and binding upon Developer and will constitute legal, 16 13
valid and binding obligations of Developer.
4.2.2 No other authorizations or approvals will be necessary in order to enable Developer to enter into or to comply with the terms of this Agreement.
4.2.3 Neither this Agreement nor anything provided to be done under this Agreement violates or shall violate any contract, agreement or instrument to which Developer is a party or by which it is bound.
4.2.4 Developer will commence work on the Project Land Use Entitlements and building permits and will diligently pursue completion of the Project in accordance with the "Schedule of Performance" set forth in Exhibit F attached hereto.
4.2.5 This Agreement is a valid and binding agreement enforceable against Developer in accordance with its terms, subject to laws relating to bankruptcy and creditor’s rights and generally applicable equitable principles.
4.2.6 Developer is not relying upon any representations or warranties by City other than those expressly set forth in this Agreement and the representations and warranties of City set forth herein constitute all of the representations and warranties of City in regard to this transaction.
4.2.7 Developer has not entered into any agreements which will adversely affect the title to the Property or Developer’s right to construct the Project, as provided in this Agreement.
4.2.8 Developer represents and warrants to the City that there is no suit, legal action, administrative arbitration or other proceeding or governmental investigation process which has been served upon Developer or, which to Developer’s best knowledge, is otherwise pending or threatened against Developer in which any party is making or has made a claim or defense that, if sustained, would adversely affect the performance of Developer under this Agreement or adversely interfere with the ability of Developer to consummate the transactions contemplated herein.
4.2.9 Developer possesses adequate financial resources and has the skill and experience to develop and operate the Project.
4.2.10 Developer is entering into this Agreement for the purpose of redeveloping the Property and not for speculation in land holding or land banking. In this regard, Developer recognizes the importance of the development of the Project on the Property to the general welfare of the residents of the City, and the fact that the qualifications and identity of Developer are of particular concern to City and that it is because of such qualifications and identity that City is entering into this Agreement with Developer. Should Developer fail to construct and operate the Project for one year from the date a Certificate of Occupancy has been issued by the City, Developer agrees they will not transfer any rights to the Property or Project without the express written consent of the City in their sole and absolute discretion, unless a Permitted Transfer as set forth below. Developer’s obligation to obtain City consent to a transfer of the Property or Project prior to completion of the Project and the first year of operation shall survive the termination of this Agreement.
4.2.11 Permitted Transfers.
4.2.11.1 No Transfer of Developer's interest in the Hotel Project/Retail Component shall be permitted unless, at the time of the Transfer, the person or entity to which such Transfer is made, by an agreement reasonably satisfactory to the City, expressly agrees to perform and observe, from and after the date of such transfer, all the obligations, terms 17 14
and conditions of this Agreement, and if less than all of the Project is transferred, the transferee shall agree to perform the obligations, terms and conditions of this Agreement, relating to the portion of the Project that is transferred to the transferee.
The assumption agreement shall be executed by Developer and the assignee or transferee and shall name the City as an express third-party beneficiary with respect to such agreement with a copy thereof delivered to the City within thirty (30) days after the effective date thereof. Upon transfer of this Agreement pursuant to an assumption agreement, the assignor's liability with respect to any such obligations relating to the Project accruing from and after the date of such assignment or transfer shall be as set forth in the assumption agreement.
4.2.11.2 Any Transfer creating a Mortgage or other security or financing for the Project.
4.2.11.3 Any Transfer directly resulting from the foreclosure of a Mortgage or other security financing interest or the granting of a deed in lieu of foreclosure of a Mortgage (including, without limitation, a conveyance in lieu of foreclosure of a pledge of equity interests) or other security financing interest and any subsequent transfer to any buyer or successor after such foreclosure of granting of a deed or conveyance in lieu of foreclosure.
4.2.11.4 The leasing or sale of the Hotel Site to an approved Hotel Brand. An approved Hotel Brand is one that is listed on the most recent STR Scale Chains – North America and Caribbean for midscale or above.
4.2.11.5 The conveyance or dedication of a portion of the Hotel Site to any public entity, including a public utility, required to allow for the development or operation of the Improvements.
4.2.11.6 The granting of temporary or permanent easements, licenses, rights-of-way, or permits to facilitate development and/or operation of the Hotel Project.
4.2.11.7 Transfer which may result from any merger, consolidation or reorganization involving Developer so long as the same shall possess all or substantially all of the business and assets of Developer immediately prior thereto.
4.2.11.8 The Transfer of a non-Controlling interest in the equity interests in the Developer.
4.2.11.9 Transfer of the direct or indirect membership interests in Developer to its joint venture partner or from its joint venture partner to Developer pursuant to the provisions of their joint venture agreements.
4.2.11.10 A Transfer to the Hotel Brand Operator or to a new entity consisting of an entity directly or indirectly owned or Controlled by the initial Hotel Brand Operator.
4.2.11.11 A Transfer to an Affiliate of Developer or to an Affiliate of Developer's joint venture partners.
4.3 Covenants Related to Construction, Use and Operation of the Property. Developer covenants and agrees for itself, its successors, assigns, and every successor in interest to the Site, as follows:
4.3.1 To construct the Project pursuant to this Agreement, the Scope of Development and the Schedule of Performance. The physical quality of the Hotel, including without limitation the construction quality, finish material, lighting, landscaping and site amenities shall, in no event, fail to meet the minimum construction quality, finish material, lighting, landscaping and site amenities approved by the City.
4.3.2 To Commence Operations of the Hotel as a first quality hotel in accordance with the Scope of Development and Franchise Agreement and this Agreement.
4.3.3 From the date upon which the Hotel Commences Operation, the Developer shall continuously use and operate the Hotel. During such Operating Period the Hotel shall be operated under 18 15
the name of Franchisor, as previously approved by the City, and be operated by the Hotel Manager. In addition, the City shall have the right, acting in its reasonable discretion, to approve any proposed replacement Franchisor and/or Hotel Manager provided that such proposed replacement Franchisor and/or proposed replacement Hotel Manager shall operate the Hotel at a quality standard not less than that required by this Agreement, or imposed by the original Franchisor and/or Hotel Manager, as applicable, pursuant to the original Franchise Agreement and/or original Hotel Management Agreement initially executed hereunder, which ever Agreement requires the higher standard; provided further, that such proposed replacement Franchisor and/or proposed replacement Hotel Manager shall have the financial capability and operating experience equivalent to, or greater than, the original Franchisor and/or Hotel original Hotel Manager, as the case may be, of the Hotel Project in the condition and at a quality level substantially equivalent to the condition and quality level, as the case may be, as existed as of the date of Commencement of Operation in compliance with this Agreement, which standard shall, in no event be less than AAA 3 Diamond standard as to physical condition and service as that standard is defined as of the date of execution of this Agreement.
4.3.4 Compliance with Franchise Agreement and/or Hotel Management Agreement. After the Conveyance, the Developer shall provide City with any amendments of the Franchise Agreement and/or Hotel Management Agreement, as applicable, within fifteen (15) working days after execution thereof. In addition, the Developer shall remain at all times in full compliance with the Franchise Agreement and/or Hotel Management Agreement, as applicable.
4.3.5 Maintenance Covenants. Developer covenants and agrees for itself, its successors and assigns and any successor in interest to the Hotel or part thereof to maintain, at no cost or expense to the City, the Hotel and all improvements thereon to the property and curb line, in compliance with the terms of this Agreement, the Land Use Approvals and Permits, and with all applicable provisions of the City Municipal Code. Such maintenance and repair shall also conform to the requirements of Developer’s Franchisor and Hotel Management Agreement and/or Franchise and Hotel Management Agreement, as applicable. Maintenance and security of the Hotel Project shall be consistent with other similar class hotel projects in Orange County, and shall include, without limitation, regular graffiti removal, and trash and debris removal. The Site shall be kept free from any accumulation of debris or waste materials. The Developer shall maintain the landscaping required to be planted on the Site in a healthy condition in accordance with the approved landscape plan for the Hotel Project.
4.3.6 Minimum Hotel Project Value Covenant. The Developer covenants and agrees by and for itself, its successors, assigns and every successor in interest to the Property or any part thereof that commencing upon the Completion of Construction of the Hotel, the Developer shall not take action to decrease the assessed value (including the value of the improvements thereon and/or possessory interest therein) of the Property for property tax purposes below the assessed value as determined by the Orange County Assessor’s Office at the time the Hotel opens. (“Minimum Hotel Value”).
Each of the foregoing items (4.2) through (4.3) inclusive, above, shall be deemed to be an on-going representation and warranty and covenant. Developer shall advise the City in writing if there is any change pertaining to any matters set forth or referenced in the foregoing items (4.2) through (4.3). Neither the Hotel Manager, any member, manager, agent, employee or representative of Developer or the Hotel Manager, including their attorneys and accountants, nor any of their affiliates or spouses, shall have any personal liability for any breach of any representation or warranty or any other obligation by Developer under this Agreement except in the event of fraud, misrepresentation or other acts involving moral turpitude.
5 OTHER PROPERTY RELATED REQUIREMENTS.
5.1 Operating Memoranda. It is recognized that performance under this Agreement will require a 19 16
considerable degree of cooperation between the City and Developer. It is further realized that subsequent events may demonstrate that revisions will be required in the performance her eunder, and that a certain degree of flexibility will be required. It is to preserve such flexibility that certain provisions may have been delineated in this Agreement in general terms only, with the understanding that more precise details may be sent forth in “Operating Memoranda” as may be required from time to time. Each operating memorandum shall be approved by the City Council or City Administrator and Developer’s designated representative and shall be attached hereto as an addendum, and become a part hereof, and may be further changed and amended from time to time as necessary upon approval by the City and Developer.
5.2 No Reimbursement of Transient Occupancy Tax. It is fully understood by the Developer that 100% of the City’s Transient Occupancy Tax will be collected by the Developer at whatever level has been established by the City Council and that none of this tax is being shared with the Developer in any way.
5.3 Utilities and Street Improvements. To the extent any new, additional, increased or changed utility connections, or any street improvements are undertaken by the City wholly unrelated to the Project, the City shall diligently undertake all activities (including without limitation permitting and construction costs) so as not to impair or delay the construction and opening of the Hotel.
5.4 Advertising. The City entered into a Design, Build, Operate and Maintain (DBOM) Agreement with Lamar Central Outdoor, LLC on or about October 6, 2015 that authorizes the City a limited right to assign advertising space to promote economic development, as defined in the DBOM, on a space-available basis and subject to limitations on timeframes for advertising. The City and Developer agree for a period of one (1) year to cooperate in the placement of advertising for economic development purposes related to the operation of the Hotel subject to the terms and conditions of the DBOM. The one (1) year period begins when the Developer submits their first billboard advertisement request to the City.
5.5 Hotel Rooms to City. Developer agrees to provide, based upon availability, hotel rooms to City of Placentia public safety personnel as required by the City to respond to public safety issues at a rate of 75% of the average standard rate.
5.6 OCTA Retaining Wall. Condition of Approval #6 of the Land Use Entitlements requires Developer to construct the Project without interfering with or disturbing the existing retaining wall for the Placentia Avenue underpass. The Parties understand and agree that, upon completion of construction of the Project, Developer shall not have any responsibility to maintain the wall.
6 DEVELOPMENT OF THE PROPERTY.
6.1 Rights to Develop. Subject to the terms of this Agreement including the Reservations of Authority, Developer shall have a vested right to develop the Property in accordance with, and to the extent of, the Development Plan and the Existing Land Use Regulations; however, if D eveloper has not met the Schedule of Performance for completion of work as set forth in the Schedule of Performance attached hereto in Exhibit "G", and such failure continues for thirty (30) after the City Administrator had provided Developer with notice o f such failure (or such longer period of time as is reasonably necessary to cure any such failure) the City Administrator shall have the sole discretion upon written notice to Developer, to extend the Schedule of Performance based on Developer’s written explanation of not meeting the Schedule of Performance, or to terminate this Agreement after thirty (30) days written notice to the Developer for failure to meet the Schedule of Performance. The Project shall remain subject to all Subsequent Development Appr ovals required to complete the Project as contemplated by the Development Plan. Except as otherwise provided expressly in this Agreement, the permitted uses of the Property, the intensity of use, the maximum height and size of proposed buildings, 20 17
the design, improvement, and construction standards applicable to development of the Property, and provisions for reservation and dedication of land for public purposes and Development Exactions shall be those set forth in the Development Plan. Notwithstanding the foregoing, nothing contained in this Agreement shall be deemed to be a covenant by Developer to develop or construct the Project or any portion of the Project; provided, however, that to the extent that any phase of the Project is developed, Developer shall be obligated to construct the public improvements required herein related to that phase of development.
6.2 Effect of Agreement on Land Use Regulations. Except as otherwise provided expressly under the terms of this Agreement including the Reservations of Authority, the rules, regulations and official policies of City governing permitted uses of the Property, the intensity of use of the Property, the maximum height and size of proposed buildings, and the design, improvement and construction standards and specifications applicable to development of the Property shall be the Existing Land Use Regulations. In connection with any Subsequent Development App roval, City shall exercise its discretion in accordance with the Development Plan, the Existing Land Use Regulations, and as provided by this Agreement including, but not limited to, the Reservations of Authority.
6.3 Allowed Deviations from Development Stand ards. The following deviations from City standard development standards are expressly permitted by this Development Agreement and are specific only to the proposed Project.
6.3.1 Site Criteria – Minimum Lot Size
Approval of a reduced minimum lot size of 21,553 square feet (0.49 acres) in lieu of
1.5 acres, as otherwise required per PMC Section 23.36.020(2), Site Criteria.
6.3.2 Front Yard Setback
A deviation to allow a 4 -foot front yard setback in lieu of the 15-foot minimum required per PMC Section 23.36.070(a).
6.3.3 Street Side Yard Setback
A deviation to allow a 4-foot street side yard setback in lieu of the 15 -foot minimum required per PMC Section 23.36.070(b).
6.3.4 Off-Street Parking Reduction
A reduction in the required number of off -street parking spaces from 86 to 82, pursuant to a deviation from PMC Section 23.78.030(3), which establishes parking standards for hotels, motels, and apartment hotels.
6.3.5 Allowance of Tandem Parking
Authorization to provide tandem parking configurations for commercial use, notwithstanding the absence of any provision within the Placentia Municipal Code allowing for tandem commercial parking. Such configuration is acknowledged to not conform to PMC Section 23.78.040.
6.3.6 On-Street Loading Allowance
Approval to allow on -street loading in lieu of the re quired off-street loading facilities, as mandated by PMC Section 23.78.050.
6.4 Term of Maps and Development Approvals. The term of all Development Approvals and Subsequent Development Approvals and any and all subsequently -approved tentative subdivision maps approved for the Project shall be equal to the Term of this Agreement in accordance with applicable laws, unless this Agreement is earlier terminated pursuant to the provisions hereof, in which event the term of such tentative subdivision maps shall be governed by the applicable provisions of the Subdivision Map Act.
6.5 Timing of Development. The parties acknowledge that Developer cannot at this time predict when or the rate at which phases of the Property will be developed. Such decisions depend 21 18
upon numerous factors that are not within the control of Developer, such as construction costs, market orientation and demand, interest rates, absorption, completion and other similar factors. Since the California Supreme Court held in Pardee Construction Co. v. City of Camarillo (1984) 37 Cal.3d 465, that the failure of the parties therein to provide for the timing of development resulted in a later adopted initiative restricting the timing of development to prevail over such parties' agreement, it is the parties' intent to cure that deficiency by acknowledging and providing that Developer shall have the right to develop the Property in such order and at such rate and at such times as Developer, in its sole and absolute discretion deems appropriate, subject only to any timing requirements set forth in the Development Plan and Schedule of Performance set forth in Exhibit F.
6.6 Schedule of Performance. Development of the Property shall be subject to all timing established by the Development Plan and Schedule of Performance attached hereto as Exhibit F and Developer shall use all commercially reasonable efforts to comply with the Schedule of Performance.
6.7 Failure to Perform. In the event that Developer has not completed the Project in compliance with the agreed upon Schedule of Performance the City may impose a penalty for each month of delay in the opening of the Hotel in the amount of Two Hundred Seventy-Eight Thousand Five Hundred Twenty and 00/100 ($278,520.00) per year, prorated on a monthly basis. The parties agree this is a fair allocation of the loss of transient occupancy tax lost to the City as a result of Developer’s failure to complete the Project in a timely manner as set forth in the Schedule of Performance as such amount is based on the estimated transient occupancy tax for an 86-room hotel at 70% occupancy.
6.8 Changes and Amendments. The parties acknowledge that refinement and further development of the Project will require Subsequent Development Approvals and may demonstrate that changes are appropriate and mutually desirable in the Existing Development Approvals. During the term of this Agreement, in the event Developer finds that a change in the Existing Development Approvals is necessary or appropriate, Developer shall apply for a Subsequent Development Approval to effectuate such change and City shall process and act on such application in accordance with the Existing Land Use Regulations, except as otherwise provided by this Agreement, including, without limitation, the Reservations of Authority. If approved, any such change in the Existing Development Approvals shall be attached to this Agreement as an addendum to Exhibit "C" and may be further changed from time to time as provided in this Section.
6.8 Reservations of Authority
6.8.1 Limitations. Reservations and Exceptions. Notwithstanding any other provision of this Agreement, the following Subsequent Land Use Regulations shall apply to the development of the Property.
(a) Processing fees and charges of every kind and nature imposed by City to cover the estimated actual costs to City of processing applications for Development Approvals or for monitoring compliance with any Development Approvals granted or issued.
(b) Procedural regulations relating to hearing bodies, petitions, applications, notices, findings, records, hearings, reports, recommendations, appeals and any other matter of procedure.
(c) Regulations governing construction standards and specifications including, without limitation, City's Building Code, Plumbing Code, Mechanical Code, Electrical Code, Fire Code and Grading Code that are applied uniformly and on a city-wide basis to all development projects of a similar type as the Project.
(d) Regulations that are in conflict with the Development Plan but that are reasonably necessary to 22 19
protect the public health and safety of the residents of the Project or the immediate community. To the extent possible, any such regulations shall be applied and construed so as to provide Developer with all of the rights and assurances provided under this Agreement. Any regulation, whether adopted by initiative or otherwise, limiting the permitted uses, density, intensity, or rate or timing of development of the Property to the extent permitted by law shall be deemed to conflict with the Development Plan and shall therefore not be applicable to the development of the Property.
(e) Regulations that are not in conflict with the Development Plan provided Developer has given written consent to the application of such regulations to development of the Property.
6.8.2 Subsequent Development Approvals. This Agreement shall not prevent City, in acting on Subsequent Development Approvals, from applying Subsequent Land Use Regulations that do not conflict with the Existing Land Use Regulations or Development Plan, nor shall this Agreement prevent City from denying or conditionally approving any Subsequent Development Approval on the basis of the Existing Land Use Regulations or any Subsequent Land Use Regulation not in conflict with the Development Plan. Upon approval of any Subsequent Development Approval, such Subsequent Development Approval shall be deemed vested pursuant to the provisions of this Agreement, without any further action by City or Developer being requir ed.
6.8.3 Modification or Suspension by State or Federal Law. In the event any State or Federal law or regulation that is enacted or adopted after the Effective Date of this Agreement, or any other action of any governmental entity that is not under City's control, prevents or precludes compliance with any provision of this Agreement, then that provision of this Agreement shall be modified or suspended only to the extent and for the time necessary to achieve compliance with that law, regulation or other governmental action and the remaining provisions of this Agreement shall continue in full force and effect and the parties shall negotiate in good faith for such amendments to this Agreement as may be necessary to achieve its intent, notwithstanding the existence of such law or regulation or other governmental action. Upon the repeal of any such law, regulation or other governmental action or on the occurrence of any other circumstance that removes the effect of the same on this Agreement, provided this Agreement is otherwise still in effect, the provisions of this Agreement shall be automatically restored to their full original effect and any amendment to this Agreement that the parties have entered into as a result of any such law, regulation or other governmental action, shall terminate.
6.8.4 Intent. The parties acknowledge and agree that City is entering into this Agreement pursuant to the Development Agreement Law, Government Code Sections 65864 - 65869.5, and that the foregoing limitations, reservations and exceptions are intended to reserve to City all of its police power that cannot be so limited. This Agreement shall be construed to reserve to City all such power and authority that cannot be restricted by development agreement.
6.8.5 Public Works. Developer shall construct all public improvements related to the Project required as a condition of approval in accordance with City's or other public works engineering standards. For public utilities, the Developer shall design and construct all public utility facilities within the public rights-of-way in the project boundary as required by the public utility purveyors, including those related to cable/telephone or related communication transmission facilities, energy transmission facilities, fiber optic, electric, gas to service the property. The City shall determine whether the Developer shall dedicate said public utility facilities and the public access easements thereto and the entities to whom those dedications shall be made. Developer shall install electrical or communication appurtenances (such as transformers) underground unless said appurtenance is a service pedestal for electrical, phone, traffic signal control cabinets, or irrigation control devices. 23 20
6.8.6 On-Site Improvements. All on-site public improvements shall be constructed to generally applicable City standards as set forth in the conditions of approval for the project. Upon completion, the Developer shall offer for dedication utility improvements as part of the project subdivision maps.
These improvements include all potable water mains, sewer mains and storm water collection facilities intended to serve the property within the Project boundaries.
6.8.7 Provision of Real Property Interests by City . In any instance where Developer is required to construct any public improvement on land not owned by Developer, Developer shall at its sole cost and expense provide or cause to be provided, the real property interests necessary for the construction of such public improvements. Developer shall exercise reasonable and diligent good faith efforts to acquire the real property interests necessary for the construction of such public improvements at a cost and upon terms acceptable to the owner of the real property and approved by City. If, despite such efforts, Developer is unable to acquire such property after one -hundred eighty days (180), at Developer's request and upon Developer's provision of adequate security for costs City incurs, City shall negotiate the purchase of the necessary real property interests to allow Developer to construct the public improvements as required by this Agreement. If necessary, in accordance with th e procedures established by law, the City may use its power of eminent domain to acquire such requi red real property interests. Developer shall pay all costs associated with any such negotiation or condemnation proceedings. This Section 6.8.7 is not intended by the parties to impose upon the Developer an enforceable duty to acquire land or construct any public improvements on land not owned by Developer, except to the extent that the Developer elects to proceed with the development of the Project.
6.9 Regulation by Other Public Agencies. It is acknowledged by the parties that other public agencies not within the control of City possess authority to regulate aspects of the development of the Property separately from or jointly with City and this Agreement does not limit the authority of such other public agencies.
6.10 Parking Management Plan. The Developer shall adopt and adhere to a parking management plan reasonably acceptable to the City.
7. PUBLIC BENEFITS.
7.1 Intent. The parties acknowledge and agree that development of the Property will result in substantial public benefit by development of an underutilized vacant property.
7.2 Development Impact Fees.
7.2.1 Amount and Components of Fee. Developer shall pay to City the Development Impact Fees in the amounts determined by the City as identified in Exhibit "E".
7.2.2 Time of Payment. Development Impact Fees required pursuant to Subsection 5.2.1, shall be paid to City at the time of issuance of the first building permit as described in Exhibit “E”.
7.3 Reimbursement of City Costs. Developer shall pay all reasonable costs incurred by City in connection with the Development Approvals sought to be granted related to the Project. Developer shall pay all costs of any private financing for the Project, including all of City's costs therefor. Costs to be paid by Developer include, but are not limited to, City fees due for processing of all applications, City's, costs reasonably borne for staff time related to the Project and this Agreement, including all administrative and staff costs, and any out of pocket costs incurred by City in connection with the 24 21
Development Agreement, Development Approvals, and consulting, permits, noticing, and environmental evaluation and mitigation, including overseeing any Mitigation Monitoring Program. A reimbursement schedule and a reimbursement process for all such costs which have not been reimbursed directly to City by Developer shall be mutually agreed upon prior to the issuance of building permits. City shall require Developer to submit a deposit against which such costs will be billed.
8. REVIEW FOR COMPLIANCE.
8.1 Periodic Review. During the term of this Agreement, t he Director of Development Services shall review this Agreement annually, on or before the anniversary of the Effective Date, in order to ascertain the good faith compliance by Developer with the terms of the Agreement. Developer shall submit an annual monitoring report ("Annual Monitoring Report"), in a form acceptable to the Director of Development Services, within 30 days after written notice from City Staff demonstrating Developer's good faith compliance with all the material terms of this Agreement. The Annual Monitoring Report shall be accompanied by an annual review and administration fee sufficient to defray the estimated costs of review and administration of the Agreement during the succeeding year.
The amount of the annual review and administration fee shall be set annually by resolution of the City Council. Upon completion of a periodic review, the Director of Development Services shall submit a report to the City Council setting forth the evidence concerning good faith compliance by Developer with the terms of this Agreement and his or her recommended finding on that issue. If the City Council finds that Developer has not complied in good faith with the terms and conditions of this Agreement, the City Council may modify or terminate this Agreement after providing Developer with a reasonable opportunity to cure any non-compliance by Developer.
8.2 Certificate of Agreement Compliance. If, at the conclusion of a periodic review, Developer is found to be in compliance with this Agreement, City shall, upon request by Developer, issue a Certificate of Agreement Compliance ("Certificate") to Developer stating that after the most recent periodic or special review and based upon the information known or made known to the Director of Development Services and City Council that (1) this Agreement remains in effect and (2) Developer is not in default. The Certificate shall be in recordable for m, shall contain information necessary to communicate constructive record notice of the finding of compliance, shall state whether the Certificate is issued after a periodic or special review and shall state the anticipated date of commencement of the next periodic review. Developer may record the Certificate with the Orange County Recorder.
Whether or not the Certificate is relied upon by assignees or other transferees or Developer, City shall not be bound by a Certificate if a default existed at the time of the periodic or special review, but was concealed from or otherwise not known to the Director of Development Services or City Council.
9. PREVAILING WAGES.
9.1 Public Works Determination. Developer has been alerted to the requirements of California Labor Code section 1770, et seq., including, without limitation S.B. 975, which require the payment of prevailing wage rates and the performance of other requirements if it is determined that this Development Agreement or any portion of the Development constitutes a public works contract. It shall be the sole responsibility of Developer to determine whether to pay prevailing wages for any or all work required by this Development Agreement. As a material part of this Development Agreement, Developer agrees to assume all risk of liability arising from any decision not to pay prevailing wages for work required by this Development Agreement.
9.2 Indemnification. As a further material part of this Development Agreement, Developer agrees 25 22
to indemnify, defend and hold harmless City, its officials, officers, employees, consultants and agents from any and all claims, liability, loss, costs, damages, expenses, fines and penalties, of whatever the or nature, including all costs of defense and reasonable attorneys' fees, arising from any alleged failure of the Developer or Developer's contractors to comply with the prevailing wage laws of the State of California. If City or any of the other indemnified parties is named as a party in any dispute arising from the failure of Developer or Developer ' s contractors to pay prevailing wages , Developer agrees that City and those other indemnified parties may appoint their own independent counsel, and Developer agrees to pay all attorneys' fees and defense costs of City and the other indemnified parties as billed, in addition to all other damages, fines, penalties, and losses incurred by City and those other indemnified parties as a result of the action.
10. DEFAULT AND REMEDIES.
10.1 Remedies in General. It is acknowledged by the parties that neither party would have entered into this Agreement if it were to be liable in damages under this Agreement, or with respect to this Agreement or the application thereof. In general, each of the parties hereto may pursue any remedy at law or equity available for the breach o f any provision of this Agreement, except that neither party shall be liable in damages to the other party, or to any successor in interest of such party, or to any other person, and each party covenants not to sue for damages or claim any damages:
10.1.1 For any breach of this Agreement or for any cause of action that arises out of this Agreement; or
10.1.2 For the taking, impairment or restriction of any right or interest conveyed or provided under or pursuant to this Agreement; or
10.1.3 Arising out of or connected with any dispute, controversy or issue regarding the application or interpretation or effect of the provisions of this Agreement.
10.2 Specific Performance. The parties acknowledge that money damages and remedies at law generally are inadequate and specific performance and other non-monetary relief are particularly appropriate remedies for the enforcement of this Agreement and should be available to all parties for the following reasons:
10.2.1 Money damages are unavailable against City or Developer as provided in Section 9.1 above; provided nothing in this Agreement precludes City from exercising its rights to enforce bonds or other security furnished by Developer to City as required in the Development Plan, or from enforcing its right to indemnification from Developer as set forth herein and requiring Developer to pay money damages for failure to do so.
10.2.2 Due to the size, nature and scope of the Project, it may not be practical or possible to restore the Property to its natural condition once implementation of this Agreement has begun.
After such implementation, Developer may be foreclosed from other choices it may have had to utilize the Property or portions thereof. Developer has 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, and it is not possible to determine the sum of money that would adequately compensate Developer for such efforts.
10.3 Release. Except for non-damage remedies, including the remedy of specific performance or 26 23
judicial review, Developer, for itself, its successors and assignees, hereby releases City, its officials, officers, agents and employees from any and all claims, demands, actions, or suits of any kind or nature arising out of any liability, known or unknown, present or future, including, but not limited to, any claim or liability, based or asserted, pursuant to Article I, Section 19 of the California Constitution, the Fifth Amendment of the United States Constitution, or any other law or ordinance that seeks to impose any other liability or damage, whatsoever, upon City because it entered into this Agreement or because of the terms of this Agreement.
10.4 Default of Developer. City may terminate this Agreement for any failure of Developer to perform any material duty or obligation of Developer under this Agreement, or to comply in good faith with the terms of this Agreement (hereinafter referred to as "default"); provided, how ever, City shall first provide written notice to Developer of default setting forth the nature of the default and demanding the Developer to cure such default. If Developer fails to cure such default within 60 days after the service of such notice or, in the event that such default cannot be cured within such 60 day period but can be cured within a longer time, has failed to commence the actions necessary to cure such default within such 60 day period and to diligently proceed to complete such actions and cure such default, City may terminate this agreement. Upon the termination of the Agreement pursuant to this Section 9.4 the City shall have the right to retain all previously received Good Faith Deposits.
10.5 Termination of Agreement for Default of City. Developer may terminate this Agreement only in the event of a default by City in the performance of a material term of this Agreement and only after providing written notice to City of default setting forth the nature of the default and the actions, if any, required by City to cure such default and, where the default can be cured, City has failed to take such actions and cure such default within 60 days after the effective date of such notice or, in the event that such default cannot be cured within such 60 day period but can be cured within a longer time, has failed to commence the actions necessary to cure such default within such 60 day period and to diligently proceed to complete such actions and cure such default in a reasonable period. Upon the termination of the Agreement pursuant to this Section 9.5, the City shall immediately return all Good Faith Deposits to the Developer.
11. THIRD PARTY LITIGATION.
11.1 General Plan Litigation. City has determined that this Agreement is consistent with its General Plan, herein called General Plan, and Existing Land Use Regulations. Developer has reviewed the General Plan and concurs with City's determination. City shall have no liability in damages under this Agreement for any failure of City to perform under this Agreement or the inability of Developer to develop the Property as contemplated by the Development Plan of this Agreement as the result of a judicial determination that on the Effective Date, or at any time thereafter, the General Plan, Existing Regulations, or portions thereof, applied to the Development Plan are invalid or inadequate or not in compliance with law.
11.2 Third Party Litigation Concerning Agreement. Developer shall defend, at its expense, including attorneys' fees, indemnify, and hold harmless City, its agents, officials, officers, independent contractors, subcontractors, and employees, from any claim, action or proceeding against City, its agents, officials, officers, independent contractors, subcontractors, or employees to attack, set aside, void, or annul the approval of this Agreement or the approval of any Subsequent Development Approval granted pursuant to this Agreement. City shall promptly notify Developer of any such claim, action or proceeding, and City shall cooperate in the defense.
11.3 Indemnity. In addition to the provisions of 11.2 above, Developer shall indemnify and hold City, its officials, officers, agents and employees free and harmless from any liability whatsoever, based or asserted upon any act or omission of Developer, its officers, agents, employees, subcontractors and independent contractors, for property damage, bodily injury, or death (Developer's employees included) or 27 24
any other element of damage of any kind or nature, relating to or in any way connected with or arising from the activities contemplated hereunder, including, but not limited to, the study, design, engineering, construction, completion, failure or conveyance of the public improvements, save and except claims for damages to the extent arising through the illegal activities, gross active negligence or willful misconduct of City or any of its officers, officials, agents or employees. Developer shall defend, at its expense, including attorneys' fees, City, its officers, officials, agents and employees in any action or proceeding based upon such alleged acts or omissions. City may, in its discretion, participate in the defense of any such action or proceeding.
11.4 Environmental Assurances. Developer shall indemnify and hold City, its officers, officials, agents and employees free and harmless from any liability, based or asserted, upon any act or omission of Developer, its officers, agents, employees, subcontractors, predecessors in interest, successors, assigns and independent contractors for any violation of any federal, state or local law, ordinance or regulation relating to industrial hygiene or to environmental conditions on, under or about the Property, including, but not limited to, soil and groundwater conditions, and Developer shall defend and indemnify, at its expense, including reasonable attorneys' fees, City, its officers, officials, agents and employees in any action based or asserted upon any such alleged act or omission save and except claims for damages to the extent arising through the illegal activities, gross active negligence or willful misconduct of City or any of its officers, officials, agents or employees.. City may, in its discretion, participate in the defense of any such action.
11.5 Reservation of Rights. With respect to Sections 10.2, 10.3 and 10.4 herein, City reserves the right to either (1) approve the attorney(s) that Developer selects, hires or otherwise engages to defend City hereunder, which approval shall not be unreasonably withheld, or (2) conduct its own defense, provided, however, that Developer shall reimburse City forthwith for any and all expenses incurred for such defense, including attorneys' fees, upon billing and accounting therefor. In the event City chooses Option (2), then Developer shall also be entitled to participate in the proceedings that are the subject of Sections 10.2, 10.3 or 10.4 herein.
11.6 Survival. The provisions of this Sections 11.1 through 11.6, inclusive, shall survive the termination of this Agreement.
12. MORTGAGEE PROTECTION.
The parties hereto agree that this Agreement shall not prevent or limit Developer, in any manner, at Developer's sole discretion, from encumbering the Project or any portion thereof or any improvement thereon by any mortgage, deed of trust or other security device securing financing with respect to the Project. City acknowledges that Mortgagees providing such financing may require certain Agreement interpretations and modifications and agrees upon request, from time to time, to meet with Developer and representatives of such Mortgagees to negotiate in good faith any such request for interpretation or modification. City will not unreasonably withhold its consent to any such requested interpretation or modification provided such interpretation or modification is consistent with the intent and purposes of this Agreement. Any Mortgagee of the Project shall be entitled to the following rights and privileges:
12.1 Neither entering into this Agreement nor a breach of this Agreement shall defeat, render invalid, diminish or impair the lien of any mortgage on the Project made in good faith and for value, unless otherwise required by law.
12.2 The Mortgagee of any mortgage or deed of trust encumbering the Project, or any part thereof, which Mortgagee has submitted a request in writing to City in the manner specified herein for giving notices, shall be entitled to receive written notification from City of any default by Developer in the performance of Developer's obligations under this Agreement. 28 25
12.3 If City timely receives a request from a Mortgagee requesting a copy of any notice of default given to Developer under the terms of this Agreement, City shall provide a copy of that notice to the Mortgagee within 10 days of issuing the notice of default to Developer. The Mortgagee shall have the right, but not the obligation, to cure the default during the remaining cure period allowed such party under this Agreement.
12.4 Any Mortgagee who comes into possession of the Project, or any part thereof, pursuant to foreclosure of the mortgage or deed of trust, or deed in lieu of such foreclosure, shall take the Project, or part thereof, subject to the terms of this Agreement. Notwithstanding any other provision of this Agreement to the contrary, no Mortgagee shall have an obligation or duty under this Agreement to perform any of Developer's obligations or other affirmative covenants of Developer hereunder (including, without limitation, any indemnification obligation of Developer for any acts or omission arising prior to the date said Mortgagee comes into possession of the Project), or to guarantee such performance; provided, however, that to the extent that any covenant to be performed by Developer is a condition precedent to the performance of a covenant by City, the performance thereof shall continue to be a condition precedent to City's performance hereunder, and if further provided that any transfer or assignment by any Mortgagee in possession shall be subject to the provisions of this Agreement.
13. MISCELLANEOUS PROVISIONS.
13.1 Recordation of Agreement. This Agreement and any amendment or cancellation thereof shall be recorded with the Orange County Recorder by the City Clerk within the period required by Section 65868.5 of the Government Code.
13.2 Entire Agreement. This Agreement sets forth and contains the entire understanding and agreement of the parties, and there are no oral or written representations, understandings or ancillary covenants, undertakings or agreements that are not contained or expressly referred to herein. No testimony or evidence of any such representations, understandings or covenants shall be admissible in any proceeding of any kind or nature to interpret or determine the terms or conditions of this Agreement.
13.3 Severability. If any term, provision, covenant or condi tion of this Agreement shall be determined invalid, void or unenforceable, the remainder of this Agreement shall not be affected thereby to the extent such remaining provisions are not rendered impractical to perform taking into consideration the purposes of this Agreement. Notwithstanding the foregoing, the provision of the public benefits set forth in Section 5 of this Agreement, including the payment of the fees set forth therein, are essential elements of this Agreement and City would not have entered into this Agreement but for such provisions, and therefore in the event such provisions are determined to be invalid, void or unenforceable, this entire Agreement shall be null and void and of no force and effect whatsoever.
13.4 Interpretation and Governing Law. This Agreement and any dispute am ong hereunder shall be governed and interpreted in accordance with the laws of the State of California. This Agreement shall be construed as a whole according to its fair language and common meaning to achieve the objectives and purposes of the parties hereto, and the rule of construction to the effect that ambiguities are to be resolved against the drafting party shall not be employed in interpreting this Agreement, all parties having been represented by counsel in the negotiation and preparation hereof.
13.5 Operating Memoranda. The parties acknowledge that circumstances may arise which demonstrate that changes are appropriate with respect to the details and performance of the parties under this Agreement. The parties desire to retain a certain degree of flexibility with respect to those 29 26
items covered in general terms under this Agreement. If and when the parties mutually find that changes, adjustments, or clarifications that are in substantial conformance with the original Project are appropriate to further the intended purposes of this Agreement, they may, unless otherwise required by law, effectuate such changes, adjustments, or clarifications without amendment to this Agreement through one or more operating memoranda mutually approved by the parties. The Operating Memoranda may be approved on behalf of the City by the City Administrator of the City, or such person designated in writing by the City Administrator, and by any corporate officer or other person designated for such purpose in a writing signed by a corporate officer on behalf of Developer. After execution of an Operating Memoranda it shall be attached hereto as an addenda and become a part hereof. Unless otherwise required by law or by this Agreement, no such changes, adjustments, or clarifications shall require prior notice or hearing, public or otherwise. Notwithstanding the foregoing, in no event shall any Operating Memoranda reduce the Developer Impact Fees approved by this Agreement.
13.6 Section Headings. All section headings and subheadings are inserted for convenience only and shall not affect any construction or interpretation of this Agreement.
13.7 Singular and Plural. As used herein, the singular of any word includes the plural.
13.8 Joint and Several Obligations. If at any time during the term of this Agreement the Property is owned, in whole or in part, by more than one Developer (collectively the "Obligors"), all obligations of such Obligors under this Agreement shall be joint and several, and the default of any such Obligors shall be the default of all such Obligors. Notwithstanding the foregoing, no Obligors of a single rentable unit that has been finally subdivided and such rentable unit leased to a member of the gen eral public or other ultimate user, shall have any further obligation under this Agreement with respect to such rentable unit.
13.9 Time of Essence. Time is of the essence in the performance of the provisions of this Agreement as to which time is an element.
13.10 Waiver. Failure by a party to insist upon the strict performance of any of the provisions of this Agreement by the other party, or the failure by a party to exercise its rights upon the default of the other party, shall not constitute a waiver of such party's right to insist and demand strict compliance by the other party with the terms of this Agreement thereafter.
13.11 No Third-Party Beneficiaries. This Agreement is made and entered into for the sole protection and benefit of the parties and their successors and assigns. No other person shall have any right of action based upon any provision of this Agreement.
13.12 Force Majeure. Neither party shall be deemed to be in default where failure or delay in performance of any of its obligations under this Agreement is caused by floods, earthquakes, other acts of God, pandemics, fires, wars, riots or similar hostilities, strikes and other labor difficulties beyond the party's control, (including the party's employment force), government regulations, court actions (such as restraining orders or injunctions), or other causes beyond the party's control. If any such events shall occur, the term of this Agreement and the time for performance by either party of any of its obligations hereunder may be extended by the written agreement of the parties for the period of time that such events prevented such performance, provided that the term of this Agreement shall not be extended under any circumstances for more than 1 years.
13.13 Mutual Covenants. The covenants contained herein are mutual covenants and also constitute conditions to the concurrent or subsequent performance by the party benefited thereby of the covenants 30 27
to be performed hereunder by such benefited party.
13.14 Successors in Interest. 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: (a) is for the benefit of and is a burden upon every portion of the Property; (b) runs with the Property and each portion thereof; and, (e) is binding upon each party and each successor in interest during ownership of the Property or any portion thereof.
13.15 Counterparts. This Agreement may be executed by the parties in counterparts, which counterparts shall be construed together and have the same effect as if all of the parties had executed the same instrument.
13.16 Jurisdiction and Venue. Any action at law or in equity arising under this Agreement or brought by a party hereto 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, and the parties hereto waive all provisions of law providing for the filing, removal or change of venue to any other court.
13.17 Project as a Private Undertaking. It is specifically understood and agreed by and between the parties hereto that the development of the Project is a private development, that neither party is acting as the agent of the other in any respect hereunder, and that each party is an independent contracting entity with respect to the terms, covenants and conditions contained in this Agreement.
13.18 Further Actions and Instruments. Each of the parties shall cooperate with and provide reasonable assistance to the other to the extent contemplated hereunder in the performance of all obligations under this Agreement and the satisfaction of the conditions of this Agreement. Upon the request of either party at any time, the other party shall promptly execute, with acknowledgment or affidavit if reasonably required, and file or record such required instruments and writings and t ake any actions as may be reasonably necessary under the terms of this Agreement to carry out the intent and to fulfill the provisions of this Agreement or to evidence or consummate the transactions contemplated by this Agreement.
13.19 Eminent Domain. No provision of this Agreement shall be construed to limit or restrict the exercise by City of its power of eminent domain.
13.20 Agent for Service of Process. In the event Developer is not a resident of the State of California or it is an association, partnership or joint venture without a member, partner or joint venture resident of the State of California, or it is a foreign corporation, then in any such event, Developer shall file with the Director of Development Services , upon its execution of this Agreement, a designation of a natural person residing in the State of California, giving his or her name, residence and business addresses, as its agent for the purpose of service of process in any court action arising out of or based upon this Agreement, and the delivery to such agent of a copy of any process in any such action shall constitute valid service upon Developer. If for any reason service of such process upon such agent is not feasible, then in such event Developer maybe personally served with such process out of Orange County and such service shall constitute valid service upon Developer. Developer is amenable to the process so served, submits to the jurisdiction of the Court referenced in Section 12.16 so obtained and waives any and all objections and protests thereto. Developer for itself, assigns and successors hereby waive the provisions of the Hague Convention (Convention on the Service Abroad of Judicial and Extra Judicial Documents in Civil or Commercial Matters, 20 U.S.T. 361, T.I.A.S. No. 31 28
6638).
13.21 Authority to Execute. The person or persons executing this Agreement on behalf of Developer warrants and represents that he or she or they has/have the authority to execute this Agreement on behalf of such corporation, partnership or business entity and warrants and represents that he or she or they has/have the authority to bind Developer to the performance of its obligations hereunder.
13.22 Minor Modifications to Development Plan. Minor modifications to the Development Plan may be approved by the City Administrator, or his or her designee, evidenced by a written memorandum from the City, which shall not require recordation but shall be retained by the City as a public record. A "Minor Modification" shall not increase unit count or reduce parking spaces, or building heights.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the day and year set forth below.
[SIGNATURES NEXT PAGE]
32 29
"DEVELOPER"
CY Hospitality LLC
____________________________,
By: Chandrakant Patel, Manager
Attest: "CITY "
THE CITY OF PLACENTIA,
a municipal corporation
________________________________
City Clerk
By: ________________________________
Name: Jennifer Lampman
Title: City Administrator
APPROVED AS TO FORM:
By: ________________________________
Name: Christian Bettenhausen
Title: City Attorney
33 STATE OF CALIFORNIA )
)
COUNTY OF ORANGE )
On __________________________________, before me, _____________________________________, (insert name and title of the officer)
Notary Public, 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 of Notary (Seal)
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.
34 STATE OF CALIFORNIA )
)
COUNTY OF ORANGE )
On __________________________________, before me, _____________________________________, (insert name and title of the officer)
Notary Public, 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 of Notary (Seal)
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.
35 EXHIBIT “A”
LEGAL DESCRIPTION OF CITY PROPERTY
THAT PORTION OF PLACENTIA AVENUE (VARIABLE WIDTH) AND INDUSTRIAL WAY (VARIABLE WIDTH) AS SHOWN IN DOCUMENT NO. 2015000007442 RECORDED JANUARY 18, 2015, OFFICIAL RECORDS, SITUATED IN THE CITY OF PLACENTIA, COUNTY OF
ORANGE, STATE OF CALIFORNIA, BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS:
COMMENCING AT THE NORTHWESTERLY CORNER OF LOT 6 OF TRACT MAP 5836, FILED IN BOOK 217, PAGE 22 OF MISCELLANEOUS MAPS, ORANGE COUNTY RECORDS, BEING
THE BEGINNING OF A CURVE CONCAVE NORTHWESTERLY HAVING A RADIUS OF 5,747.70 FEET, A RADIAL LINE TO SAID POINT BEARS SOUTH 8⁰46’30” EAST;
THENCE ALONG SAID CURVE, NORTHEASTERLY THROUGH A CENTRAL ANGLE OF 0⁰12’00” AN ARC LENGTH OF 20.06 FEET;
THENCE, NORTH 81⁰01’30” EAST, 39.09 FEET TO THE TRUE POINT OF BEGINNING;
THENCE, SOUTH 8⁰58’30” EAST, 3.00 FEET;
THENCE, SOUTH 81⁰01’30” WEST, 35.50 FEET;
THENCE, SOUTH 14⁰30’37” WEST, 124.70 FEET;
THENCE, SOUTH 75⁰28’30” EAST, 32.80 FEET;
THENCE, NORTH 14⁰31’30” EAST, 9.98 FEET TO THE SOUTHERLY LINE OF SAID LOT 6,
BEING THE BEGINNING OF A NON-TANGENT CURVE CONCAVE NORTHERLY HAVING A RADIUS OF 172.00 FEET, A RADIAL LINE TO SAID BEGINNING OF NON-TANGENT CURVE BEARS SOUTH 11⁰35’02” WEST;
THENCE ALONG SAID CURVE AND SOUTHERLY LINE OF SAID LOT 6, EASTERLY THROUGH A CENTRAL ANGLE OF 28⁰03’02” AN ARC LENGTH 84.21 FEET;
THENCE, NORTH 73⁰32’00” EAST, 28.22 FEET TO THE BEGINNING OF A NON-TANGENT CURVE CONCAVE NORTHEASTERLY HAVING A RADIUS OF 92.00 FEET, A RADI AL LINE TO SAID BEGINNING OF NON-TANGENT CURVE BEARS SOUTH 12⁰23’57” EAST;
THENCE LEAVING SAID SOUTHERLY LINE OF LOT 6, ALONG SAID CURVE, NORTHWESTERLY THROUGH A CENTRAL ANGLE OF 46⁰54’08” AN ARC LENGTH OF 75.31
FEET TO THE BEGINNING OF A REVERSE CURVE CONCAVE SOUTHERLY HAVING A RADIUS OF 46.00 FEET;
THENCE ALONG SAID CURVE, WESTERLY THROUGH A CENTRAL ANGLE OF 45⁰02’58” AN ARC LENGTH OF 36.17 FEET;
THENCE, NORTH 14⁰25’32” EAST, 64.93 FEET;
36 THENCE, NORTH 81⁰01’36” EAST, 16.34 FEET;
THENCE, NORTH 14⁰25’32” EAST, 32.50 FEET TO THE NORTHERLY LINE OF SAID LOT 6;
THENCE ALONG SAID NORTHERLY LINE, SOUTH 81⁰01’30” WEST, 13.00 FEET TO THE TRUE POINT OF BEGINNING.
CONTAINING 6,358 SQUARE FEET, MORE OR LESS.
SEE EXHIBIT 1A ATTACHED HERETO AND MADE A PART HEREOF.
37 STREET PLAT MAP
38 EXHIBIT “A-2”
LEGAL DESCRIPTION OF PROPERTY
THE LAND REFERRED TO HEREIN BELOW IS SITUATED IN THE COUNTY OF ORANGE, STATE OF CALIFORNIA AND IS DESCRIBED AS FOLLOWS:
LOT 6 OF TRACT NO. 5836, IN THE CITY OF PLACENTIA, COUNTY OF ORANGE, STATE OF CALIFORNIA, AS SHOWN ON A MAP RECORDED IN BOOK 217, PAGES 22 AND 23 OF MISCELLANEOUS MAPS, RECORDS OF ORANGE COUNTY, CALIFORNIA.
EXCEPT THEREFROM ONE-HALF OF ALL MINERAL RIGHTS BELOW A DEPTH OF 500 FEET WITHOUT THE RIGHT OF SURFACE ENTRY, AS RESERVED BY WILLIAM R. BRAUCHER AND WIFE BY DEED RECORDED NOVEMBER 29, 1960, IN BOOK 5527, PAGE 111, OF OFFICIAL RECORDS.
ALSO EXCEPT THEREFROM THAT PORTION THEREOF CONVEYED TO THE CITY OF PLACENTIA IN DEED RECORDED JANUARY 8, 2015 AS INSTRUMENT NO. 2015000007442, OF OFFICIAL RECORDS.
APN: 339-442-04
39 EXHIBIT “B”
MAP OF PROJECT SITE
40 EXHIBIT “C”
DEVELOPMENT APPROVALS
DEVELOPMENT PLAN REVIEW NO. 2025-01
DEVELOPMENT AGREEMENT
USE PERMIT NO. 2025-02
41 EXHIBIT “D”
LAND USE REGULATIONS
City of Placentia General Plan (GPA 2018-02) as adopted by Resolution No. R-2019-49
All other applicable provisions of the Placentia Municipal Code
42 EXHIBIT “E”
DEVELOPMENT IMPACT FEES
Upon execution of the Development Agreement, the City shall implement the most current DIF schedule as adopted by the City Council.
SUMMARY OF COMMUNITY FACILITIES DISTRICT (CFD’s)
ANNUAL ASSESSMENT
Type of CFD’s Per Total
Landscape Maintenance District
(LMD) 92-1 $1,548.70 per acre $765.00
Street Lighting District (SLD) 81-1 $164.28 per acre $81.12 Total Community Facilities District Annual Assessment $_846.15_
43 EXHIBIT “F”
SCHEDULE OF PERFORMANCE
Action Deadline
City consider DA and Covenant. December 2, 2025
Developer executes DA and delivers to City for approval and execution.
Within 10 days of Approval of City
Council.
Developer submission of Franchise Agreement. Within 180 days following the execution of the DA.
Developer submittal of Financing Commitment. Within 15 days prior to the close of escrow.
Developer shall submit application and plan submissions for all building plan approvals ("Plan Submission").
On or before one hundred twenty (120) days
of execution of DA.
City plan checks building plans of Plan Submission and
submits correction comments to Developer.
Within 30 days of Plan Submission.
Developer makes all building plan corrections and
resubmits to City for comment.
Within 30 days of City's plan check
corrections.
City rechecks building plans and submits correction
comments to Developer, if necessary.
Within 15 days following receipt of
Developer's resubmission.
If necessary, Developer makes all building plan
corrections necessary for building plan approval and
resubmits for building plan approval.
Within 20 days following receipt of City's
plan check corrections.
If necessary, City identifies all outstanding correction items necessary for building plan approval.
Within 10 days following receipt of
Developer's resubmission.
If necessary, Developer makes all building plan
corrections necessary to obtain building plan approval and resubmits for building plan approval.
Within 20 days following receipt of City's
plan check corrections.
Developer submits approved building plans to the City for issuance of building permit.
No later than 180 days after all plan
corrections are completed.
City issues building permit. Within 7 days following receipt of Developer's submission of approved
building plans.
Developer submits required insurance ?. Prior to construction.
Commence construction of Hotel. Within 90 days of Construction Loan recording and funding.
Completion of Hotel and open to the public 36 months following start of construction.
Developer delivers written request for release of
Construction Covenants for Hotel.
Following completion, final inspection and
issuance of Final Certificate of Occupancy
for a Hotel.
City delivers a Release of Construction Covenants to
Developer or gives reasons for not releasing covenants.
Within 5 days following Developer's
submission of written request for release.
44