BONANNI DEVELOPMENT
REPAYMENT SCHEDULE FOR DEVELOPMENT FEES
Initial Date: 09/01/23
Loan Amount: $632,350
Interest Rate: 4.00%
Term (Years): 5
Maturity Date: 03/01/29
Outstanding
Principal
Payment No. Payment Date Total Payment Principal Interest Balance 38 05/01/27 $ 11,645.69 $ 10,787.59 $ 858.09 $ 246,640.47 39 06/01/27 $ 11,645.69 $ 10,823.55 $ 822.13 $ 235,816.92 40 07/01/27 $ 11,645.69 $ 10,859.63 $ 786.06 $ 224,957.28 41 08/01/27 $ 11,645.69 $ 10,895.83 $ 749.86 $ 214,061.45 42 09/01/27 $ 11,645.69 $ 10,932.15 $ 713.54 $ 203,129.30 43 10/01/27 $ 11,645.69 $ 10,968.59 $ 677.10 $ 192,160.71 44 11/01/27 $ 11,645.69 $ 11,005.15 $ 640.54 $ 181,155.56 45 12/01/27 $ 11,645.69 $ 11,041.84 $ 603.85 $ 170,113.73 46 01/01/28 $ 11,645.69 $ 11,078.64 $ 567.05 $ 159,035.09 47 02/01/28 $ 11,645.69 $ 11,115.57 $ 530.12 $ 147,919.51 48 03/01/28 $ 11,645.69 $ 11,152.62 $ 493.07 $ 136,766.89 49 04/01/28 $ 11,645.69 $ 11,189.80 $ 455.89 $ 125,577.09 50 05/01/28 $ 11,645.69 $ 11,227.10 $ 418.59 $ 114,350.00 51 06/01/28 $ 11,645.69 $ 11,264.52 $ 381.17 $ 103,085.48 52 07/01/28 $ 11,645.69 $ 11,302.07 $ 343.62 $ 91,783.41 53 08/01/28 $ 11,645.69 $ 11,339.74 $ 305.94 $ 80,443.66 54 09/01/28 $ 11,645.69 $ 11,377.54 $ 268.15 $ 69,066.12 55 10/01/28 $ 11,645.69 $ 11,415.47 $ 230.22 $ 57,650.65 56 11/01/28 $ 11,645.69 $ 11,453.52 $ 192.17 $ 46,197.13 57 12/01/28 $ 11,645.69 $ 11,491.70 $ 153.99 $ 34,705.44 58 01/01/29 $ 11,645.69 $ 11,530.00 $ 115.68 $ 23,175.43 59 02/01/29 $ 11,645.69 $ 11,568.44 $ 77.25 $ 11,607.00 60 03/01/29 $ 11,645.69 $ 11,607.00 $ 38.69 $ 0.00
TOTALS $ 698,741.26 $ 632,350.00 $ 66,391.26
ORDINANCE NO.1102
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF STANTON APPROVING
A DEVELOPMENT AGREEMENT BETWEEN THE CITY OF STANTON AND BONANNI DEVELOPMENT FOR CERTAIN REAL PROPERTY LOCATED AT 12736
BEACH BOULEVARD WITHIN THE CITY OF STANTON PURSUANT TO
CALIFORNIA GOVERNMENT CODE SECTION 65864 ET SEQ. AND MAKING CEQA
FINDINGS IN CONNECTION THEREWITH
WHEREAS, on August 28, 2019, Chris Segesman representing Bonanni Development, ("Applicant") filed applications for a General Plan Amendment GPA 19-01, Zoning Code Amendment ZCA 19-04, a Development Agreement DA 19-01, Planned Development Permit PDP19-02, and Site Plan and Design Review SPDR-800, for the development of a 3.75 acre site ("Project Site"), located at 12736 Beach Boulevard to develop a 5- and 7- story mixed-use building consisting of 300 apartment units, 6,313 square foot commercial space, a 6-story parking structure and associated site improvements ("Project"); and
WHEREAS, the City of Stanton ("City") has found that the development agreement strengthens the public planning process, encourages private participation in comprehensive planning by providing a greater degree of certainty in that process, reduces the economic costs of development, allows for the orderly planning of public improvements and services, allocates costs to achieve maximum utilization of public and private resources in the development process, and ensures that appropriate measures to enhance and protect the environment are achieved; and WHEREAS, pursuant to California Government Code section 65864 et seq., the City is authorized to enter into development agreements providing for the development of land under terms and conditions set forth therein; and
WHEREAS, the Applicant proposes to develop the Project Site located in the City of Stanton, more particularly described in Exhibit "A", attached hereto and incorporated herein by this reference ("Property") for the Project; and WHEREAS, because of the logistics, magnitude of the expenditure and considerable lead time prerequisite to planning and developing the Project, the Applicant has proposed to enter into a development agreement concerning the. Project ("Development Agreement") to provide assurances that the Project can proceed without disruption caused by a change in the City's planning policies and requirements except as provided in the Development Agreement, which assurance will thereby reduce the actual or perceived risk of planning for and proceeding with development of the Project; and WHEREAS, the City desires the timely, efficient, orderly and proper development of the Project in furtherance of the goals of the General Plan; and WHEREAS, the City Council has found that this Development Agreement is consistent with the City's General Plan; and
ORDINANCE NO. 1102
PAGE 1 OF 7
Attachment: B
Click here to return to the agenda.
WHEREAS, the City Council has determined that by entering into the Development Agreement: (i) the City will promote orderly growth and quality development on the Property in accordance with the goals and policies set forth in the General Plan; (ii) significant benefits will be created for City residents and the public generally from increased housing opportunities created by the Project;. and WHEREAS, it is the intent of the City and Applicant to establish certain conditions and requirements related to review and development of the Project which are or will be the subject of subsequent development applications and land use entitlements for the Project as well as the Development Agreement; and
WHEREAS, the City and Applicant have reached mutual agreement and desire to voluntarily enter into the Development . Agreement to facilitate development of the Project subje�t to the conditions and requirements set forth therein; and · · · WHEREAS, pursuant to the California Environmental Quality Act (Public Resources Code, § 21000 et seq.) ("CEQA") and the State CEQA Guidelines (California Code of Regulations, title 14, § 15000 et seq.), the City is the lead agency for the proposed Project; and ·· ·
WHEREAS, in accordance with CEQA and the State CEQA Guidelines, the City has determined approval of the- Project is exempt from the requirements of CEQA and the State CEQA Guidelines pursuant to State CEQA Guidelines section 15332, Class 32 (In-fill Development Projects); and
WHEREAS, on May 20, 2020 the Planning Commission of the City of Stanton conducted a duly noticed public hearing concerning the request to approve General Plan Amendment GPA 19-01, Zoning Code Amendment ZCA 19-04, Development Agreement DA 19-01, Planned Development Permit PDP19-02, and Site Plan and Design Review SPORc800, at which hearing members of the public were afforded an opportunity to comment upon the Development Agreement; and WHEREAS, the Planning Commission adopted a resolution recommending that the City Council approve the Development Agreement; and
WHEREAS, on June 9, 2020, the City Council.conducted a duly noticed public hearing and considered evidence concerning the Development Agreement as well as General Plan Amendment GPA19-01, Zoning Code Amendment ZCA19-04, Planned Development Permit PDP19-02, and Site Plan and Design Review SPDR-800 for the property located at 12736 Beach Boulevard; and
WHEREAS, the terms and conditions of the Development Agreement have undergone review by the City Council at a publicly noticed hearing and have been found to be fair, just, and reasonable, and consistent with the General Plan; and WHEREAS, all other legal prerequisites to the adoption of this Resolution have occurred.
ORDINANCE NO. 1102
PAGE 2 OF7
l __ J
NOW THEREFORE, THE CITY COUNCIL OF THE CITY OF STANTON DOES ORDAIN AS FOLLOWS:
SECTION 1: The City Council hereby finds the proposed Project categorically exempt from environmental review pursuant to State CEQA Guidelines, section 15332.
Specifically:
1. As explained in detail in the June 9, 2020, City Council staff report, the proposed Project is consistent with the City of Stanton's General Plan, all applicable general plan policies, as well as the applicable zoning designation and regulations provided that the requested waivers are approved as part of a Planned Development Permit.
The proposed Project would further the City's goals of developing much needed housing.
2. The proposed Project Site is within the City of Stanton's municipal boundaries in the center of town on Beach Boulevard and the site is less than five areas in size.
The site is substantially surrounded by urban uses, residential uses to the northwest, east and south, a mixed-use development consisting of a commercial shopping center and a townhome subdivision to the west, and commercial uses to the north.
3. As detailed in the Class 32 Infill Streamlining Checklist the Project Site h�1" no value as habitat for endangered, rare or threatened species. The Project Site is currently developed with commercial buildings and paved parking lot. The Project Site is located within a developed, urbanized area with no sensitive species, habitat, or natural communities. The Project Site does not occur near or within any Multiple Species Habitat Conservation Plan (MSHCP) Criteria Cell or area designated for MSHCP conservation. There are no MSHCP Reserve Assembly Requirements associated with the Project Site, and there are no incompatibilities with respect to development of the Project Site and UrbanNVildlands interface issues. There is no potential for narrow endemic, rare, or endangered plant species. Riparian or riverine habitats, vernal pools, or any other potential jurisdictional waters or wetlands are absent from the Project Site.
4. Approval of the Project would not result in any significant effects relating to traffic, noise, air quality, or water quality for the reasons outlined in the June 9, 2020, City Council staff report, the Air Quality, Noise, Parking and Traffic Studies and the Water Quality Management Plan. The Project Site has frontage along Beach Boulevard and can be served by all required utilities that run through and under Beach Boulevard. Moreover, the proposed Project can be adequately served by all public services, as explained in the June 9, 2020, City Council staff report.
For the foregoing reasons, the City Council finds the proposed project categorically exempt from environmental review pursuant to State CEQA Guidelines, section 15332.
ORDINANCE NO. 1102
PAGE 3 OF 7
Because the City Council finds the project categorically exempt from CEQA, the City Council hereby finds none of the exceptions to the exemptions outlined in State CEQA Guidelines, section 15300.2 applies:
1. The cumulative impacts of successive projects of the same type in the same place, over time is not significant. The likelihood of multiple housing projects of this type on this site over time is very low. Once the project is built it i.s likely to remain for its useful life. Thus, cumulative impacts are not likely to occur on the site and would not be significant.
2. There are no unusual circumstances surrounding the development of this site that would lead to a potentially significant effect on the environment.
This is an urban infill site, ofthe exact type and character for which the infill exemption exists. The Project site faces and is immediately adjacent to the City's main thoroughfare, Beach Boulevard. The site is a prime candidate for infill development because it is substantially nurrounded on all side.s and is availcible to connect into existing utilities that surround the site. There are no unique circumstances about development of the site that would distinguish it from other infill sites such that environmental impacts would likely occur from development of the Project.
3. The stretch of Beach. Boulevard that the proposed Project fronts is not a i1ighway officially designated as a state scenic highway. There are no other statfl scenic highways in the Project vicinity. Thus, the proposed Project would not result in any damage to scenic resources within a state scenic highway.
4. A search of the EnviroStor website as of May 12, 2020 (available at https://www.envirostor.dtsc.ca.gov/puhlic/) confirms that the Project Site is not included on any list compiled pursuant to Section 65962.5.
5. The Project would not result in any impacts to historical resources as neither the site nor any improvements on the site contain any historical significance at the national, state or local level.
Because none of the exceptions to the categorical exemptions applies, the City Council proceeds with finding the Project exempt from environmental review pursuant to State CEQA Guidelines, section 15332.
SECTION 2: Pursuant to Government Code Section 65867.5(b) and Stanton Municipal Code Section 20.510.050(0), and based on the entire record before the City Council, the City Council hereby makes the following findings:
1. Public Benefit: The Development Agreement provides benefit to the City because the Project contemplated in the Development Agreement includes L J
improvement of an underutilized residential lot to provide housing opportunities for City L�i residents. Moreover, the Development Agreement requires the Applicant to provide ORDINANCE NO. 1102
PAGE4 OF 7
substantial improvements to the site and provide a financial benefit for the improvement of public facilities throughout the city.
2. General Plan, Specific Plan, and Zoning Code Consistency: The Development Agreement is consistent with the purpose, intent, goals, policies, programs, and land use designations of the General Plan and any applicable Specific Plan, and this Zoning Code because the Project Site is in the South Gateway MixedUse District and is zoned Commercial General (GC) with a South Gateway Mixed-Use (SGMX)) Overlay Zone and is which allows for mixed use development projects. With approval of a General Plan Amendment, Zoning Code Amendment and Planned Development Permit and the making of the required findings, the project would be permitted within the Commercial General (CG) with a South Gateway Mixed-Use (SGMX) Overlay Zone. There is no Specific Plan applicable to the Project Site. The proposed Project meets the following General Plan Goals and Strategies:
• Goal LU-3.1: A range and balance of residential densities which are supported by adequate city services. Strategy LU-3.1.2: Encourage infill and mixed-use development within feasible development sites. The amendment would provide for a higher range of residential densities and additional housing opportunities which would be supported by adequate city services.
• Goal ED-2.2: Promote economic revitalization at key locations within the city, ,., specifically the major arterials, Beach Boulevard and Kate/fa Avenue, which carry· commuters and other travelers through Stanton. Strategy 2.2.1: Encourage mixed-use development along major corridors, specifically Beach Boulevard and Kate/la Avenue, as well as at major city intersections and activity nodes. The amendment would provide for additional housing opportunities close to commercial nodes, which will benefit existing and future commercial uses along Beach Boulevard, and contribute to the City's economic base. • Action RC-2.1.6(b) Encourage development of underutilized and vacant infill site where public services and infrastructure are available. The amendment would encourage development of underutilized and vacant infill sites by increasing the allowable density and number of building stories. The SGMX district is generally located along the southern portion of Beach Boulevard, which is an urbanized infill area and therefore public services and infrastructure are readily accessible and available to serve the sites within the district.
3. Compliance with Development Agreement Statute. The Development Agreement complies with the requirements of Government Code Sections 65864 through 65869.5 because the Agreement provides assurance to the applicant for the development of the Project. The Development Agreement specifies the duration of the agreement, permitted uses of the property, density and intensity of use, and provision of public benefits to the City. Specifically, the Development Agreement provides a threeyear term in which the Applicant has a vested right to develop ttie mixed use development on the Project Site in accordance to existing City regulations and Planned ORDINANCE NO. 1102
PAGE 5 OF 7
Development Permit PDP19-02. In exchange, the Project will provide housing opportunities for Stanton residents, and opportunities for improvements to public facilities throughout the city. Moreover, the Applicant will provide a high quality, aesthetically appealing development with substantial improvements to the site including a amenities for the residents and enhanced landscaping throughout the development.
SECTION 3: As provided in the Development Agreement and pursuant to Stanton Municipal Code Section 20.500.030, the City Council shall be the approving body for the general plan amendment, zoning code amendment, site plan and design review, and planned development permit for the project addressed by the Development Agreement.
SECTION 4: The City Council hereby approves and adopts the Development Agreement attached hereto as Exhibit "B", entitled, "Development Agreement between the City of Stanton, a California municipal corporation and Bonanni Development".
SECTION 5: The documents related to this Ordinance are on file and available for public review at Stanton City Hall, 7800 Katella Ave., Stanton, California 90680. The City Clerk is the custodian of these documents ..
SECTION 6: If any section, _subsection, subdivision, sentence, clause, phrase, or portion of this Ordinance for any reason is held fo be invalid or unconstitutional by the decision of any court of competent jurisdiction, such decision shall not affect the validity of the remaining portions of this Ordinance. The City Council hereby declares that it would have adopted this Ordinance, and each section, subsection, subdivision, sentence, clause, phrase, or portion thereof, irrespective of the fact that any one or more sections, subsections, subdivisions, sentences, clauses, phrases, or portions thereof be declared invalid or unconstitutional.
SECTION 7: This Ordinance shall be effective thirty days after its adoption. The City Clerk shall certify the adoption cif this Ordinance and shall cause the same to be posted as required by law. Pursuant to Government Code Section 65868.5, within 10 days following the entering into of the Development Agreement, as evidenced by full execution thereof, the City Clerk shall record with the Orange County Recorder a copy of the Development Agreement.
SECTION 8: The City Council hereby directs staff to prepare and file a Notice of Exemption with the Orange County Clerk within five (5) working days of the approval of the proposed Project.
PASSED, APPROVED, AND ADOPTED this 23rd day of June, 2020.
ORDINANCE NO. 1102
PAGE6 OF?
L J
LERK
APPROVED AS TO FORM:
MATTHEW E. RICHARDSON, CITY ATTORNEY
STATE OF CALIFORNIA )
COUNTY OF ORANGE ) SS .
CITY OF STANTON )
I, Patricia A. Vazquez, City Clerk of the City of Stanton, California, do hereby certify that the foregoing Ordinance No. 1102 was introduced at a regular meeting of the City Council of the City of Stanton, California, held on the 9 th day of June, 2020 and was duly
adopted at a regular meeting of the City Council held on the 23rd day of June, 2020, by the following roll-call vote, to wit:
AYES: COUNCILMEMBERS:
NOES: COUNCILMEMBERS:
ABSENT: COUNCILMEMBERS:
ABSTAIN: COUNCILMEMBERS:
CIT
Ramirez, Shawver, Taylor, Van, Warren
None
None __________ _
None
ORDINANCE NO. 1102
PAGE 7 OF 7
EXHIBIT "A"
LEGAL DESCRIPTION
Parcel 1 as shown on the Parcel Map No. 84-1202, in the City of Stanton, County of Orange, State of California, filed in book 207, Page 37 and 38 of Parcel Maps in the office of the County Recorder of said County.
Recorded at request of:
City Clerk
City of Stanton
Recorded in Official Records, Orange County
Hugh Nguyen, Clerk-Recorder
When recorded return to: ;
1111111111111111111111111111111111111111111 11 111111111111111 111111111111 NO FEE •$R0011841181$ •
City of Stanton
?100 !<a-kl/a tv,e�
Stanton, CA�
Attention: City Clerk
l
l
)
)
)
2020000336083 10:27 am 07/15/20
105 NCP2 A12 25
o.oo o.oo o.oo o.oo 12.00 o.oo 0.000.000.oo o.oo
Exempt from filing fees pursuant to Government Code §6103 DEVELOPMENT AGREEMENT NO. ( .i. l
A DEVELOPMENT AGREEMENT BETWEEN
CITY OF STANTON
and
LIFE ILLUMINATED, LLC a DELAWARE LIMITED LIABILITY COMPANY 554l4.00602\3272277l .4
DEVELOPMENT AGREEMENT NO. [ j. l
This Development Agreement (hereinafter "Agreement") is entered into as of this .;3 tef day of ,J' C,ln e. , 2020 by and between the City of Stanton, California (hereinafter "CITY"), and Life Illuminated, LLC a Delaware Limited Liability Company (hereinafter "OWNER"):
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 Govermnent Code; and WHEREAS, This Agreement constitutes a current exercise of City's police powers to provide predictability to Owner in the development approval process by vesting the permitted uses, density, intensity of use, and timing and phasing of development consistent with the Development Plan in exchange for Owner's commitment to provide significant public benefits to City as set forth in Section 4, below.
WHEREAS, OWNER has requested CITY to enter into a development agreement and proceedings have been taken in accordance with the rules and regulations of CITY; and WHEREAS, the best interests of the citizens of the City of Stanton and the public health, safety and welfare will be served by entering into this Agreement; and WHEREAS, the City Council hereby finds and determines that this development agreement is of major significance because it will enable the City to fund much needed capital improvements and provide much needed public services and will therefore also have a major, beneficial economic impact on the City; and
WHEREAS, the provision by Owner of the public benefits allows the City to realize significant public benefits. The public benefits will advance the interests and meet the needs of Stanton residents and visitors to a significantly greater extent than would development of the Property without this Agreement.
WHEREAS, the physical effects, if any, of the Project and this Agreement have been analyzed pursuant to CEQA and the Project has been found to be exempt from the requirements ofCEQA; and
WHEREAS, this Agreement and the Project are consistent with the Stanton General Plan and any specific plan applicable thereto; 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 Property in accordance with this Agreement will 554 I 4.00602\3272277 I .4
-1-
provide substantial benefits to CITY and will further important 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 Section 65864, et seq. of the Govermnent Code are intended;
COVENANTS
NOW, THEREFORE, in consideration of the above recitals and of the mutual covenants hereinafter contained and for other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the parties agree as follows:
1. DEFINITIONS AND EXHIBITS.
1.1 follows:
commences.
Definitions. The following terms when used in this Agreement shall be defined as
1.1.1 "Agreement" means this Development Agreement.
1.1.2 "CITY" means the City of Stanton, a California municipal corporation.
1.1.3 "City Council" means the duly elected city council of the City of Stanton.
1.1.4 "Commencement Date" means the date the Term of this Agreement
1. 1.5 "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 facilities related to the Project whether located within or outside the Property; the construction of buildings and structures; and the installation of landscaping. "Development" does not include the maintenance, repair, reconstruction or redevelopment of any building, structure, improvement or facility after the construction and completion thereof.
1.1.6 "Development Approvals" means all permits and other entitlements for use subject to approval or issuance by CITY in connection with development of the Property including, but not limited to:
55414.00602\32722771.4
(a) specific plans and specific plan amendments;
(b) tentative and final subdivision and parcel maps;
( c) conditional use permits, public use permits and plot plans; (d) zoning;
-2-
( e) grading and building permits.
1.1. 7 "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.
1.1.8 "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 connection with approval of a development project for the purpose of defraying an or a portion of the cost of public facilities related to the development project, but does not include park "in lieu" fees specified in Government Code Section 66477, fees for processing applications for governmental regulatory actions or approvals, or fees conected under development agreements adopted pursuant to Article 2.5 of the Government Code (commencing with Section 65864) of Chapter 4.
1.1.9 "Development Plan" means the plan for development of the Property as set forth in Exhibit "C". OWNER's obligations under this Agreement shan be contingent on CITY's approval ofOWNER's applications for an of the entitlements identified in Exhibit "C".
1.1.10 "Effective Date" means the date the ordinance approving and authorizing this Agreement becomes effective.
1.1.11 "Land Use Regulations" means all ordinances, resolutions, codes, rules, regulations and official policies of CITY governing the development and use of land, including, without limitation, the permitted use of land, the density or intensity of use, subdivision requirements, the maximum 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. "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 (special or general) 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; ( e) the exercise of the power of eminent domain.
1.1.12 "OWNER" means the persons and entities listed as OWNER on page 1 of this Agreement and their successors in interest to all or any part of the Property. 554l4.00602\32722771.4
-3-
1. 1. 13 "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.
1.1.14 "Project" means the development of the Property contemplated by the Development Plan as such Plan may be further defined, enhanced or modified pursuant to the provisions of this Agreement.
1.1.15 "Property" means the real property described on Exhibit "A" and shown on Exhibit "B" to this Agreement.
1.1.16 "Public Benefit" refers to those benefits provided to the City and the community by Owner pursuant to Section 4.2 below.
1.1.17 "Reservation of Rights" means the rights and authority excepted from the assurances and rights provided to OWNER under this Agreement and reserved to CITY under Section 3 .3 of this Agreement.
1.2 Exhibits. The following documents are attached to, and by this reference made a part of, this Agreement:
2. Exhibit "A" - Legal Description of the Property.
Exhibit "B" - Map showing Property and its location.
Exhibit "C" - Development Plan.
GENERAL PROVISIONS.
2.1 Binding Effect of Agreement. The Property is hereby made subject to this Agreement. Development of the Property is hereby authorized and shall be carried out in accordance with the terms of the Development Plan and this Agreement.
2.2 Ownership of Property. OWNER represents and covenants that it is the owner of the fee simple title to, or has an equitable interest in, the Property or a portion thereof.
2.3 City Council Findings. The City Council finds that:
2.3.1 This Agreement is consistent with the City's General Plan.
2.3.2 This Agreement ensures a desirable and functional community environment, provides effective and efficient development of public facilities, infrastructure, and services appropriate for the development of the Project, enhances effective utilization of resources within the City.
2.3.3 This Agreement provides public benefits beyond those which are necessary to mitigate the development of the Project.
55414.00602\3272277l.4
-4-
2.3 .4 This Agreement strengthens the public planning process, encourages private participation in comprehensive planning and reduces costs of development and government.
2.3.5 The best interests of the citizens of the City and the public health, safety, and welfare will be served by entering into this Agreement.
2.4 Term. The tenn of this Agreement shall commence on the date (the "Commencement Date") that is the Effective Date, and shall continue for a period of seven (7) years thereafter, unless this term is modified or extended pursuant to the provisions of this Agreement. Thereafter, the OWNER shall have no vested right under this Agreement, regardless of whether or not OWNER has paid any Development Impact Fee; nevertheless, OWNER may have a common law vested right to complete the Project under the "Avco rule" (see Avco Community Developers, Inc. v. South Coast Regional Commission (1976) 17 Cal.3d 785.).
2.5 Assignment.
2.5.1 Right to Assign. OWNER shall have the right to sell, transfer or assign the Property in whole or in part (provided that no such partial transfer shall violate the Subdivision Map Act, Government Code Section 66410, et seq.) to any person, partnership, joint venture, firm or corporation at any time during the term of this Agreement; provided, however, that any such sale, transfer or assignment shall include the assignment and assumption of the rights, duties and obligations arising under or from this Agreement and be made in strict compliance with the following conditions precedent:
(a) No sale, transfer or assignment of any right or interest under this Agreement shall be made unless made together with the sale, transfer or assignment of all or a part of the Property.
(b) Concurrent with any such sale, transfer or assignment, OWNER shall notify CITY, in writing, of such sale, transfer or assignment and shall provide CITY with an executed agreement ("Assignment and Assumption Agreement"), in a form reasonably acceptable to CITY, by the purchaser, transferee or assignee and providing therein that the purchaser, transferee or assignee expressly and unconditionally assumes all the duties, obligations, agreements, covenants, waivers of OWNER under this Agreement, including, without limitation, the covenants not to sue and waivers contained in Sections 6.2and 7.4 hereof.
Any sale, transfer or assignment not made in strict compliance with the foregoing conditions shall constitute a default by Owner under this Agreement. Notwithstanding the failure of any purchaser, transferee or assignee to execute the agreement required by Paragraph (b) of this Subsection 2.5. I, the burdens of this Agreement shall be binding upon such purchaser, transferee or assignee, but the benefits of this Agreement shall not inure to such purchaser, transferee or assignee until and unless such agreement is executed.
2.5.2 Release of Transferring Owner. Notwithstanding any sale, transfer or assignment, a transferring OWNER shall continue to be obligated under this Agreement with respect to the transferred Property or any transferred portion thereof, unless such transferring 554 l 4.00602\3272277 l .4
.5.
OWNER is given a release in writing by CITY, which release shall be provided by CITY upon the full satisfaction by such transferring OWNER of the following conditions:
(a) OWNER no longer has a legal or equitable interest in all or any part of the Property subject to the transfer.
(b) OWNER is not then in default under this Agreement.
(c) OWNER has provided CITY with the notice and executed agreement required under Paragraph (b) of Subsection 2.5.1 above. ( d) The purchaser, transferee or assignee provides CITY with security equivalent to any security previously provided by OWNER to secure performance of its obligations hereunder.
2.5.3 Subsequent Assignment. Any subsequent sale, transfer or assignment after an initial sale, transfer or assignment shall be made only in accordance with and subject to the terms and conditions of this Section.
2.5.4 Utilities. The Project shall be connected to all utilities necessary to provide adequate water, sewer, gas, electric, and other utility service to the Project, prior to the issuance of a certificate of occupancy for any portion of the Project.
2.5.5 Sale to Public and Completion of Construction. The prov1s10ns of Subsection 2.5.1 shall not apply to the sale or lease (for a period longer than one year) of any lot that has been finally subdivided and is individually (and not in "bulk") sold or leased to a member of the public or other ultimate user. This Agreement shall terminate with respect to any lot and such lot shall be released and no longer be subject to this Agreement without the execution or recordation of any further document upon satisfaction of both of the following conditions:
(a) The lot has been finally subdivided and individually (and not in "bulk") sold or leased (for a period longer than one year) to a member of the public or other ultimate user; and
(b) A certificate of occupancy has been issued for a building on the lot, and the fees for such lot set forth in this Agreement have been paid.
2.6 Amendment or Cancellation of Agreement. This Agreement may be amended or canceled in whole or in part only by written consent of aU parties in the manner provided for in Government Code Section 65868. This provision shall not limit any remedy of CITY or OWNER as provided by this Agreement.
2.7 Termination. This Agreement shall be deemed terminated and ofno further effect upon the occurrence of any of the foUowing events:
(a) Expiration of the stated term of this Agreement as set forth in Section 2.4. 554 I 4.00602\3272277l .4
-6-
(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 Agreement.
( d) Completion of the Project in accordance with the terms of this Agreement including issuance of all required occupancy permits and acceptance by CITY or applicable public agency of all required dedications.
Termination of this Agreement shall not constitute termination of any other land use entitlements approved for the Property. 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 tennination 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. Upon such termination, any Development Impact Fees paid by OWNER to CITY for residential units on which construction has not yet begun shall be refunded to OWNER by CITY.
2.8 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:
Ifto CITY:
City Manager
Jarad Hildenbrand
7800 Katella Ave.
Stanton, CA 90680
Copy to:
Best Best & Krieger, LLP
Matthew Richardson
18101 VonKannanAve.
554 l 4.00602\32722771.4
-7-
Irvine, CA 92612
Ifto OWNER:
Life Illuminated, LLC
Cole Bonanni
714-892-0123
5500 Bolsa Ave., Suite 120
Huntington Beach, CA 92649
(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.
3. DEVELOPMENT OF THE PROPERTY.
3.1 Rights to Develop. Subject to the terms of this Agreement including the Reservation of Rights, OWNER shall have a vested right to develop the Property in accordance with, and to the extent of, this Agreement. Except as expressly provided otherwise herein, the Project shall remain subject to all Land Use Regulations and Development Approvals, whether in effect on the Effective Date or subsequently adopted or amended, that are required to complete the Project as contemplated by the Development Plan. Except as otherwise provided in this Agreement, and notwithstanding the authority of the CITY to further revising the Land Use Regulations pursuant to Government Code section 65866, the permitted uses of the Property, the density and intensity of use, the maximum height and size of proposed buildings, and provisions for reservation and dedication of land for public purposes shall be those set forth in the Land Use Regulations and Development Approvals, whether in effect on the Effective Date or subsequently adopted or amended. OWNER shall comply with all mitigation measures required to be undertaken pursuant to any document prepared in compliance with the California Environmental Quality Act with respect to the Project.
3.2 Effect of Agreement on Land Use Regulations. Except as otherwise provided under the terms of this Agreement including the Reservation of Rights, the rules, regulations and official policies governing permitted uses of the Property, the density and 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 Land Use Regulations and Development Approvals, whether in effect on the Effective Date or subsequently adopted. In connection with any subsequently imposed Development Approvals and except as specifically provided otherwise herein, CITY may exercise its discretion in accordance with the Land Use Regulations then in effect, as provided by this Agreement, including, but not limited to, the Reservation of Rights. CITY shall accept for processing, review and action all applications for subsequent development approvals, and such applications shall be processed in the same manner and the CITY shall exercise its discretion, when required or authorized to do so, to the same extent it would otherwise be entitled in the absence of this Agreement.
554 l 4.00602\3272277 I .4
-8-
3.3 Reservation of Rights.
3.3. l Limitations. Reservations and Exceptions. Notwithstanding any other provision of this Agreement, the following 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, policies and rules governing engineering and construction standards and specifications applicable to public and private improvements, including, without limitation, all uniform codes adopted by the City and any local amendments to those codes adopted by the CITY, including, without limitation, the CITY's Building Code, Plumbing Code, Mechanical Code, Electrical Code, and Grading Ordinance. (d) Regulations imposing Development Exactions; provided, however, that no such subsequently adopted Development Exaction shall be applicable to development of the Property unless such Development Exaction is applied uniformly to development, either throughout the CITY or within a defined area of benefit which includes the Property. No such subsequently adopted Development Exaction shall apply if its application to the Property would physically prevent development of the Property for the uses and to the density or intensity of development set forth in the Development Plan. In the event any such subsequently adopted Development Exaction fulfills the same purposes, in whole or in part, as the fees set forth in Section 4 of this Agreement, CITY shall allow a credit against such subsequently adopted Development Exaction for the fees paid under Section 4 of this Agreement to the extent such fees fulfill the same purposes.
( e) Regulations that may be in material conflict with this Agreement but that are reasonably necessary to protect the residents of the project or the immediate community from a condition perilous to their health or safety. To the extent possible, any such regulations shall be applied and construed so as to provide OWNER with the rights and assurances provided under this Agreement.
( f) Regulations that are not in material conflict with this Agreement or the Development Plan. Any regulation, whether adopted by initiative or otherwise, limiting the rate or timing of development of the Property shall be deemed to materially conflict with the Development Plan and shall therefore not be applicable to the development of the Property. (g) Regulations that are in material conflict with the Development Plan; provided OWNER has given written consent to the application of such regulations to development of that Property in which the OWNER has a legal or equitable interest. 55414.00602\32722771.4
-9-
(h) Regulations that impose, levy, alter or amend fees, charges, or Land Use Regulations relating to consumers or end users, including, without limitation, trash can placement, service charges and limitations on vehicle parking. (i) Regulations of other public agencies, including Development Impact Fees adopted or imposed by such other public agencies, although collected by CITY.
3.3.2 Subsequent Development Approvals. This Agreement shall not prevent CITY, in acting on subsequent development approvals and to the same extent it would otherwise be authorized to do so absent this Agreement, from applying subsequently adopted or amended Land Use Regulations that do not materially conflict with this Agreement.
3.3.3 Modification or Suspension by State or Federal Law. In the event that State, County or Federal laws or regulations, enacted after the Effective Date of this Agreement, prevent or preclude compliance with one or more of the provisions of this Agreement, such provisions of this Agreement shall be modified or suspended as may be necessary to comply with such State or Federal laws or regulations; provided, however, that this Agreement shall remain in full force and effect to the extent it is not inconsistent with such laws or regulations and to the extent such laws or regulations do not render such remaining provisions impractical to enforce.
3 .3 .4 Intent. The parties acknowledge and agree that CITY is restricted in its authority to limit certain aspects of its police power by contract and that the foregoing limitations, reservations and exceptions are intended to reserve to CITY all of its police power that cannot be or are not expressly so limited. This Agreement shall be construed, contrary to its stated terms if necessary, to reserve to CITY all such power and authority that cannot be or is not by this Agreement's express terms so restricted.
3.4 Regulation by Other Public Agencies. It is acknowledged by the parties that other public agencies not within the control of CITY may 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.
3.5 Timing of Development. Because the California Supreme Court held in Pardee Construction Co. v. City of Camarillo, 37 Cal. 3d 465 (1984), that the failure of the parties in that case to provide for the timing of development resulted in a later-adopted initiative restricting the timing of development to prevail over the parties' agreement, it is the specific intent of the Parties to provide for the timing of the Project in this Agreement. To do so, the Parties acknowledge and provide that Owner shall have the right, but not the obligation, to complete the Project in such order, at such rate, at such times, and in as many development phases and subphases as Owner deems appropriate in its sole subjective business judgment
4. PUBLIC BENEFITS.
4.1 Intent. The parties acknowledge and agree that development of the Property will result in substantial public needs that will not be fully met by the Development Plan and further acknowledge and agree that this Agreement confers substantial private benefits on OWNER that 554 I 4.00602\32722771.4
-10-
should be balanced by commensurate public benefits. Accordingly, the parties intend to provide consideration to the public to balance the private benefits conferred on OWNER by providing more fully for the satisfaction of the public needs resulting from the Project.
4.2 Public Benefits. In addition to complying with the Project conditions of approval which are designed to mitigate the significant environmental impacts of the Project, Owner has committed by this Agreement to contribute to CITY the following "Public Benefits."
4.2.1 OWNER shall pay a fee in the amount of three thousand dollars ($3,000) (the "City Facilities Fee") for each Unit constructed as part of the Project The City Facilities Fee shall be due concurrently with the issuance of the certificate of occupancy for the Project, unless a different schedule is mutually agreed upon by CITY and OWNER.
4.2.2 OWNER shall also pay a fee in the amount of fifty thousand dollars ($50,000) (the "City Beautification/Enhancements Fee"). The City Beautification/Enhancements Fee shall be due concurrently with the issuance of the certificate of occupancy for the Project, unless a different schedule is mutually agreed upon by CITY and OWNER, and may be used by CITY in its sole discretion for beautification and enhancement projects anywhere within the City, including without limitation landscaping projects.
4.3 Development Impact Fees.
4.3.1 Amount of Fee. OWNER shall pay all Development Impact Fees in effect on the Effective Date. As of the Effective Date the Development Impact Fees are one thousand forty-nine dollars ($1,049) per Unit built in the Project.
4.3.2 Time of Payment. The fees required pursuant to Subsection 4.3.1 shall be due and paid to CITY concurrently with the issuance of the certificate of occupancy for the Project.
4.3.3 Prepayment. In no event shall the prepayment of any Development Impact Fees required hereunder establish a vested right on the part of OWNER or any other owner of the Property or any person or entity with an interest therein to develop the Project or the Property following the expiration, cancellation or termination of the Term of this Agreement.
Following the expiration, cancellation or termination of this Agreement, all Development Impact Fees then in effect shall be applicable to the Project and Property notwithstanding any provision of this Agreement and notwithstanding the prepayment of the Development Impact Fees set forth in Exhibit "D", or any combination thereof.
4.4 Dedication of On-Site Easements and Rights of Way. OWNER shall dedicate to CITY all on-site rights of way and easements deemed necessary for public improvements, in CITY's sole discretion, within 15 days of receipt of written demand from CITY.
4.5 Timing of Construction of Off-Site Infrastructure. Approval of any building permits on the Property shall be conditioned upon CITY's determination, in its sole discretion, that sufficient progress is being made on construction of off-site infrastructure serving development ofOWNER's Property.
5. REVIEW FOR COMPLIANCE.
554 I 4.00602\3272277l .4
-11-
5.1 Periodic Review. The CITY shall review this Agreement annually, on or before the anniversary of the Effective Date, in order to ascertain the compliance by OWNER with the terms of the Agreement. OWNER shall submit an Annual Monitoring Report, in a form acceptable to the City Manager, within thirty (30) days after written notice from the City Manager. 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.
5.2 Special Review. The City Council may order a special review of compliance with this Agreement at any time. The City Manager, or his or her designee, shall conduct such special reviews.
5.3 Procedure.
(a) During either a periodic review or a special review, OWNER shall be required to demonstrate good faith compliance with the terms of the Agreement. · The burden of proof on this issue shall be on OWNER.
(b) Upon completion of a periodic review or a special review, the City Manager, or his or her designee, shall submit a report to the Planning Commission setting forth the evidence concerning good faith compliance by OWNER with the terms of this Agreement and his or her recommended finding on that issue.
( c) If the Planning Commission finds and determines on the basis of substantial evidence that OWNER has complied in good faith with the terms and conditions of this Agreement, the review shall be concluded.
( d) If the Planning Commission finds and determines on the basis of substantial evidence that OWNER has not complied in good faith with the terms and conditions of this Agreement, the Commission may recommend to the City Council modification or termination of this Agreement. OWNER may appeal a Planning Commission determination pursuant to this Section 5.3(d) pursuant to CITY's rules for consideration of appeals in zoning matters then in effect. Notice of default as provided under Section 6.3 of this Agreement shall be given to OWNER prior to or concurrent with proceedings under Section 5.4 and Section 5.5.
5.4 Proceedings Upon Modification or Termination. If, upon a finding under Section
5.3, CITY determines to proceed with modification or termination of this Agreement, CITY shall give written notice to OWNER of its intention so to do. The notice shall be given at least ten (10) calendar days prior to the scheduled hearing and shall contain:
(a) The time and place of the hearing;
(b) A statement as to whether or not CITY proposes to terminate or to modify the Agreement; and,
( c) Such other information that the CITY considers necessary to inform 55414.00602\3272277l .4
-12-
OWNER of the nature of the proceeding.
5.5 Hearing on Modification or Termination. At the time and place set for the hearing on modification or termination, OWNER shall be given an opportunity to be heard. OWNER shall be required to demonstrate good faith compliance with the terms and conditions of this Agreement. The burden of proof on this issue shall be on OWNER. If the City Council finds, based upon substantial evidence, that OWNER has not complied in good faith with the terms or conditions of the Agreement, the City Council may terminate this Agreement or modify this Agreement and impose such conditions as are reasonably necessary to protect the interests of the CITY. The decision of the City Council shall be final.
5.6 Certificate of Agreement Compliance. If, at the conclusion of a Periodic or Special Review, OWNER is found to be in compliance with this Agreement, CITY shall, upon request by OWNER, issue a Certificate of Agreement Compliance ("Certificate") to OWNER stating that after the most recent Periodic or Special Review and based upon the information known or made known to the City Manager and City Council that: (1) this Agreement remains in effect; and (2) OWNER is not in default. The Certificate shall be in recordable form, 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. OWNER may record the Certificate with the County Recorder.
Whether or not the Certificate is relied upon by assignees or other transferees or OWNER, 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 City Manager or City Council.
6. DEFAULT AND REMEDIES.
6.1 Remedies in General. It is acknowledged by the parties that CITY would not 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 of any provision of this Agreement, except that CITY shall not be liable in damages to OWNER, or to any successor in interest of OWNER, or to any other person, and OWNER covenants not to sue for damages or claim any damages:
(a) For any breach of this Agreement or for any cause of action that arises out of this Agreement; or
(b) For the taking, impairment or restriction of any right or interest conveyed or provided under or pursuant to this Agreement; or
(c) Arising out of or connected with any dispute, controversy or issue regarding the application or interpretation or effect of the provisions of this Agreement. 554l4.00602\32722771.4
-13-
6.2 Release. Except for non-monetary remedies, OWNER, for itself, its successors and assignees, hereby releases CITY, its officers, agents and employees from any and all claims, demands, actions, or suits of any kind or nahrre arising out of any liability, known or unlmown, 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 and Fourteenth Amendments to the United States Constitution, or any other law or ordinance which 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. OWNER hereby acknowledges that it has read and is familiar with the provisions of California Civil Code Section 1542, which is set forth below:
"A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS
THAT THE CREDITOR OR RELEASING PARTY DOES NOT
KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT
THE TIME OF EXECUTING THE RELEASE AND THAT, IF
KNOWN BY HIM OR HER, WOULD HAVE MATERIALLY
AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR
OR RELEASED PARTY."
By initialing below, OWNER hereby waives the provisions of Section 1542 in connection with the matters that are the subject of the foregoing waivers and releases.
Owner'sru
6.3 Termination or Modification of Agreement for Default of OWNER. CITY may terminate or modify this Agreement for any failure of OWNER to perform any material duty or obligation of OWNER under this Agreement, or to comply in good faith with the terms of this Agreement (hereinafter referred to as "default"); provided, however, CITY may terminate or modify this Agreement pursuant to this Section only after providing written notice to OWNER of default setting forth the nature of the default and the actions, if any, required by OWNER to cure such default and, where the default can be cured, OWNER has failed to take such actions and cure such default within sixty (60) days after the effective date of such notice or, in the event that such default cannot be cured within such sixty (60) day period but can be cured within a longer time, has failed to commence the actions necessary to cure such default within such sixty ( 60) day period and to diligently proceed to complete such actions and cure such default.
6.4 Termination of Agreement for Default of CITY. OWNER 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 sixty (60) days after the effective date of such notice or, in the event that such default cannot be cured within such sixty ( 60) day period but can be cured within a longer time, has failed to commence the actions necessary to cure such default within such sixty (60) day period and to diligently proceed to complete such actions and cure such default.
55414.00602\32722771.4
-14-
7. LITIGATION.
7.1 Third Party Litigation Concerning Agreement. OWNER shall defend, at its expense, including attorneys' fees, indemnify, and hold harmless CITY, its agents, officers and employees from any claim, action or proceeding against CITY, its agents, officers, or employees to attack, set aside, void, or annul the approval of this Agreement, or the approval of any permit granted pursuant to this Agreement. CITY shall promptly notify OWNER of any claim, action, proceeding or determination included within this Section 8.1, and CITY shall cooperate in the defense. If CITY fails to promptly notify OWNER of any such claim, action, proceeding or determination, or if CITY fails to cooperate in the defense, OWNER shall not thereafter be responsible to defend, indemnify, or hold harmless CITY. CITY may in its discretion participate in the defense of any such claim, action, proceeding or determination.
7.2 Environmental Assurances. OWNER shall indemnify and hold CITY, its officers, agents, and employees free and harmless from any liability, based or asserted, upon any act or omission of OWNER, 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 OWNER shall defend, at its expense, including attorneys' fees, CITY, its officers, agents and employees in any action based or asserted upon any such alleged act or omission. CITY may in its discretion participate in the defense of any such action. 7 .3 Reservation of Rights. With respect to Section 7.1 and Section 7 .2 herein, CITY reserves, the right to either (I) approve the attorney(s) that the indemnifying party selects, hires or otherwise engages to defend the indemnified party hereunder, which approval shall not be unreasonably withheld, or (2) conduct its own defense; provided, however, that the indemnifying party shall reimburse the indemnified party forthwith for any and all reasonable expenses incurred for such defense, including attorneys' fees, upon billing and accounting therefor.
7.4 Challenge to Existing Land Use Approvals. By accepting the benefits of this Agreement, OWNER, on behalf of itself and its successors in interest, hereby expressly agrees and covenants not to sue or otherwise challenge any land use approval affecting the Property and in effect as of the Effective Date. Such agreement and covenant includes, without limitation, the covenant against any direct suit by OWNER or its successor in interest, or any participation, encouragement or involvement whatsoever that is adverse to CITY by OWNER or its successor in interest, other than as part of required response to lawful orders of a court or other body of competent jurisdiction. OWNER hereby expressly waives, on behalf of itself and its successors in interest, any claim or challenge to any land use approval affecting the Property and in effect as of the Effective Date. In the event of any breach of the covenant or waiver contained herein, CITY shall, in addition to any other remedies provided for at law or in equity, be entitled to:
(a) impose and recover (at any time, including after sale to a member of the public or other ultimate user) from the party breaching such covenant or waiver, the full amount of Development Impact Fees that the breaching party would have been required to pay in the absence of this Development Agreement; and 55414.00602\3272277 I .4
-15-
(b)
impose any subsequently adopted land use regulation on those land use approvals for which the breaching party had not, as of the time of such breach, obtained a building permit.
OWNER hereby acknowledges that it has read and is familiar with the provisions of California Civil Code Section 1542, which is set forth below:
"A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS
THAT THE CREDITOR OR RELEASING PARTY DOES NOT
KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT
THE TIME OF EXECUTING THE RELEASE AND THAT, IF
KNOWN BY HIM OR HER, WOULD HAVE MATERIALLY
AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR
OR RELEASED PARTY."
By initialing below, OWNER hereby waives the provisions of Section 1542 in connection with the matters that are the subject of the foregoing waivers and releases.
O�itials
7.5 Survival. The provisions of Sections 7.1 through 7.4, inclusive, shall survive the termination of this Agreement.
8. MORTGAGEE PROTECTION.
The parties hereto agree that this Agreement shall not prevent or limit OWNER, in any manner, at OWNER's sole discretion, from encumbering the Property or any portion thereof or any improvement thereon by any mortgage, deed of trust or other security device securing financing with respect to the Property. CITY acknowledges that the lenders providing such financing may require certain Agreement interpretations and modifications and agrees upon request, from time to time, to meet with OWNER and representatives of such lenders 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 Property shall be entitled to the following rights and privileges:
(a) 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 Property made in good faith and for value, unless otherwise required by law.
(b) The Mortgagee of any mortgage or deed of trust encumbering the Property, or any part thereof, which Mortgagee, has submitted a request in writing to the CITY in the manner specified herein for giving notices, shall be entitled to receive written notification from CITY of any default by OWNER in the performance of OWNER's obligations under this Agreement.
554 l 4,00602\32722771.4
-16-
(c) If CITY timely receives a request from a mortgagee requesting a copy of any notice of default given to OWNER under the terms of this Agreement, CITY shall provide a copy of that notice to the Mortgagee within ten (10) days of sending the notice of default to OWNER. 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. ( d) Any Mortgagee who comes into possession of the Property, or any part thereof, pursuant to foreclosure of the mortgage or deed of trust, or deed in lieu of such foreclosure, shall take the Property, 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 OWNER's obligations or other affirmative covenants of OWNER hereunder, or to guarantee such performance; provided, however, that to the extent that any covenant to be perfonned by OWNER 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 further provided that any sale, transfer or assignment by any Mortgagee in possession shall be subject to the provisions of Section 2.5 of this Agreement.
9. MISCELLANEOUS PROVISIONS.
9.1 Recordation of Agreement. This Agreement and any amendment or cancellation thereof shall be recorded with the Orange County Recorder by the Clerk of the City Council within ten (I 0) days after the City enters into the Agreement, in accordance with Section 65868.5 of the Government Code. If the parties to this Agreement or their successors in interest amend or cancel this Agreement, or if the CITY terminates or modifies this Agreement as provided herein for failure of the OWNER to comply in good faith with the terms and conditions of this Agreement, the City Clerk shall have notice of such action recorded with the Orange County Recorder.
9 .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. 9 .3 Severability. If any term, provision, covenant or condition 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 4 of this Agreement, including the payment of the Development Impact 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. 554 l 4.00602\3272277 l .4
-17-
9.4 Interpretation and Governing Law. This Agreement and any dispute ansmg 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.
9.5 Section Headings. All section headings and subheadings are inserted for convenience only and shall not affect any construction or interpretation of this Agreement.
9.6 Singular and Plural. As used herein, the singular of any word includes the plural.
9.7 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 OWNER, all obligations of such OWNERS under this Agreement shall be joint and several, and the default of any such OWNER shall be the default of all such OWNERS. Notwithstanding the foregoing, no OWNER of a single lot that has been finally subdivided and sold to such OWNER as a member of the general public or otherwise as an ultimate user shall have any obligation under this Agreement except as expressly provided for herein.
9.8 Time of Essence. Time is of the essence in the performance of the provisions of this Agreement as to which time is an element.
9.9 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.
9.10 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.
9.11 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, 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 five (5) years.
9.12 Mutual Covenants. The covenants contained herein are mutual covenants and also constitute conditions to the concurrent or subsequent perfo1mance by the party benefited thereby of the covenants to be performed hereunder by such benefited party. 55414.00602\32722771.4
-18-
9.13 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 ( c) is binding upon each party and each successor in interest during ownership of the Property or any portion thereof.
9.14 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.
9.15 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.
9.16 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. No partnership, joint venture or other association of any kind is formed by this Agreement. The only relationship between CITY and OWNER is that of a government entity regulating the development of private property and the owner of such property.
9.17 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 and file or record such required instruments and writings and take 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.
9.18 Eminent Domain. No provision of this Agreement shall be construed to limit or restrict the exercise by CITY of its power of eminent domain.
9.19 Agent for Service of Process. In the event OWNER is not a resident of the State of California or it is an association, partnership or joint venture without a member, partner or joint venturer resident of the State of California, or it is a foreign corporation, then in any such event, OWNER shall file with the City Manager, 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 OWNER. If for any reason 554 I 4.00602132722771.4
-19-
service of such process upon such agent is not feasible, then in such event OWNER may be personally served with such process and such service shall constitute valid service upon OWNER. OWNER is amenable to the process so served, submits to the jurisdiction of the Court so obtained and waives any and all objections and protests thereto. 9 .20 Authority to Execute. The person or persons executing this Agreement on behalf of OWNER warrants and represents that he or she/they have the authority to execute this Agreement on behalf of his or her/their corporation, partnership or business entity and warrants and represents that he or she/they has/have the authority to bind OWNER to the performance of its obligations hereunder.
554 l 4.00602\32722771.4
-20-
ORIGINAL
IN WITNESS WHEREOF, the parties hereto have executed this Development Agreement on the last day and year set forth below.
554l4.00602\3272277 l.4
-21-
OWNER
LIFE ILLUMINATED, LLC a Delaware
Limited iability Company
Its: 7/�"-J
Dated: {Wrt,JA(:;(1Alf1r fl40V\\b(o/l
CITY
CITY OF STANTON, a California
municipal corporation
By
: �kl�
Myo (T
Dated: �-i---<-'+-'"'-"'""'--
BEST BEST & KRIEGER LLP
/4ttt£tJ.
City Attorney
i
EXHIBIT "A"
(Legal Description of the Property)
Parcel 1 as shown on the Parcel Map No. 84-1202, in the City of Stanton, County of Orange, State of California, filed in Book 2007, Pages 37 and 38 of Parcel Maps in the office of the County Recorder of said County.
Exhibit A
55414,00602\32722771.4
EXHIBIT "B"
(Map of the Property)
-z L.. -I ;e; 0
0 m z
< m �
0 0
--u
;:: m z_,
STANFORD AVENUE --
iUi't......._
ExhibitB
554 l 4.00602\3272277l .4
EXHIBIT "C"
(Development Plan)
General Plan Amendment No. [GPA19-01]
Zoning Code Amendment [ZCA19-04]
Site Plan & Design Review [SPDR-800]
Planned Development Permit [PDP19-02]
Development Agreement [DA19-01]
Exhibit C
554 l 4.00602\3272277 l.4
AFFIDAVIT OF POSTING
STATE OF CALIFORNIA )
) ss.
COUNTY OF ORANGE )
I, PATRICIA A. VAZQUEZ, BEING FIRST DULY SWORN, DEPOSES, AND SAYS:
AS CITY CLERK OF THE CITY OF STANTON, COUNTY OF ORANGE, STATE OF CALIFORNIA, ON JUNE 25, 2020, I CAUSED TO BE POSTED AT EACH OF THE THREE FOLLOWING PUBLIC PLACES IN THE CITY OF STANTON, TO WIT:
1. 7800 KATELLA AVENUE (STANTON CITY HALL)
2. 10440 BEACH BOULEVARD (STANTON BRANCH POST OFFICE)
3. 11822 SANTA PAULA STREET (STANTON COMMUNITY SERVICES CENTER) A TRUE COPY OF ORDINANCE NO. 1102:
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF STANTON
APPROVING A DEVELOPMENT AGREEMENT BETWEEN THE CITY
OF STANTON AND BONANNI DEVELOPMENT FOR CERTAIN REAL
PROPERTY LOCATED AT 12736 BEACH BOULEVARD WITHIN THE
CITY OF STANTON PURSUANT TO CALIFORNIA GOVERNMENT
CODE SECTION 65864 ET SEQ. AND MAKING CEQA FINDINGS IN
CONNECTION THEREWITH
City Council Initiated
Item 15D
“DISCUSSION REGARDING REDISTRICTING”
(This item does not contain a staff report)
Item: 15D
Click here to return to the agenda.