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Home My WebLink AboutSR - APP-0533-14 - EXHIBIT H DEVELOPMENT AGREEMENT EXEMPT FROM RECORDER'S FEES Pursuant to Govermnent Code §§ 6103 and 273 83 Recording requested by and when recarded return to: City Clerk City of Orange 300 East Chapman Avenue Orange, CA 92866 (SPACE ABOVE FOR RECORDER'S USE) DEVELOPMENT AGREEMENT (Rio Santiago) BY AND EETWEEN CITY OF ORANGE, a California municipal corporation, and JMI PROPERTIES/SANTIAGO PARTNERS, LLC, . a California limited liability company THIS AGREEMENT SHALL BE RECORDED WITHIN TEN DAYS OF EXECUTION BY ALL PARTIES HERETO PURSUANT TO THE REQUII2EMENTS OF GOVERNMENT CODE§65868.5 EXHIBIT H DEVELOPMENT AGREEMENT 1/24/14 101592 RIO SANTIAGO #103590 vll MAY 13,2014 CC MTG. TABLE OF CONTENTS Pa�e RECITALS .................................................................................................................................. 1-4 , 1. DEFINITIONS.....................................................................................................................2 l.l Definitions................................................................................................................2 2. GENERAL PROV.ISIONS. .................................................................................................6 2.1 Binding Effect of Agreement...................................................................................6 2.2 Ownership of Property...............................................:.............................................6 2.3 Term.........................................................................................................................6 2.4 Assignment. ...................:.........................................................................................6 � 2.5 Amendment or Cancellation of Agreement.............................................................7 2.6 Termination..............................................................................................................7 2.7 Notices.....................................................................................................................8 3. DEVELOPMENT OF THE PROPERTY............................................................................9 3.1 Right to Develop............................................................................. .......9 .................. 3.2 Mara Brandman Arena Expansion Site....................................................................9 3.3 Public Benefits.......................................................................................................10 3.4 Application Processing..........................................................................................11 3.5 Mello-Roos Communities Facilities Districts; Other Assessment Districts or Financing Mechanisms......................................................................................11 3.6 Other Governmental or Quasi-Governmental Perrnits ..........................................11 3.7 Consistency Between This Agreement and Current Laws ....................................12 3.8 Assessments, Fees and Mitigation............................................:............................12 3.9 Park Fee Credits.....................................................................................................12 3.10 Development Exactions.........................................................................................12 3.11 Reimbursement by the City...................................................................................13 3.12 Effect of Agreeinent on Land Use Regulations.....................................................13 3.13 Timing of Development...................................... ...................................................13 3.14 Water Supply .........................................................................................................13 3.15 Changes and Amendments.....................................................................................13 3.16 Reservations of Authority......................................................................................14 3.17 Referenda aiid Moratorium....................................................................................15 3.18 Tentative Tract Map asid Parcel Map Extension....................................................15 4. REVIEW FOR COMPLIANCE. .......................................................................................15 4.1 Annual Review.......................................................................................................15 4.2 Procedure. ..............................................................................................................15 4.3 Proceedings Upon Modifications or Tennination..................................................16 4.4 Hearing on Modification or Termination...............................................................16 4.5 Certificate of Agreement Compliance.........:.........................................................16 4.6 Failure to Conduct Aiuival Review........................................................................16 1/24/14 10159.2 #103590 vll 1 TASLE OF CONTENTS � Pa�e 5. REMEDIES........................................................................................................................16 5.1 Enforcement..........................................................:................................................16 5.2 Administration of Agreement and Resolution of Disputes....................................17 5.3 Indemnity...............................................................................................................18 6. MORTGAGEE PROTECTION. .......................................................................................18 7. MISCELLANEOUS PROVISIONS..................................................................................19 7.1 Recordation of Agreement.....................................................................................19 7.2 Entire Agreement.......................:...........................................................................19 7.3 Severability............................................................................................................20 7.4 Interpretation and Governing Law.........................................................................20 7.5 Section Headings ...........................................:.......................................................20 7.6 Singulax and P1ura1.................................................................................................20 7.7 Time of Essence.....................................................................................................20 7.8 Waiver..................................................................................................:.................20 7.9 No Third Party Beneficiaries........:........................................................................20 7.10 Force Majeure........................................................................................................20 7.11 Mutual Covenants..................:...............................................................................21 7.12 Successors in Interest.............................................................................................21 7.13 Counterparts.........................................................................................................:.21 7.14 Jurisdiction and Venue.........:.................................................................................21 7.15 Project as a Private Undertaking..........................................:.................................21 7.16 Further Actions and Instruments............................................................................21 7.17 Authority to Execute.......................:..........:......................................................:....22 7.18 Cooperation................................:...................:.......................................................22 7.19 Exhibits; Recitals...................................................................................................22 EXHIBITS Exhibit A Legal Description of the Property E�iibit B Map of the Property Exhibit C Land Use Entitlements Exhibit D Mara Brandinan Arena Expansion Site 1/24/14 101S9.2 #103590 v 11 11 DEVELOPMENT AGREEMENT (Rio Santiago) This Development Agr�ement (hereinafter defined in Section 1 as the "Agreement") is made in Orange County, California as of , 2014, by and between the CITY OF ORANGE, a municipal corporation (the "City"), and JMI PROPERTIES/SANTIAGO PARTNERS, LLC, a California limited liability company ("Owner"). City and Owner are sometimes referred to individually as a"Party" and collectively as the"Parties." RECITALS This Agreement is made with respect to the following facts and for the following purposes, each of which is acknowledged as true and correct by the Parties: A. The City is authorized, pursuant to California Government Code §§65864 through 65869.5 (the "Development Agreement Statutes") and Chapter 17.44 of the City Municipal Code (the "Development Agreement Ordinances") to enter into binding agreements with persons or entities having legal or equitable interests uz real property for the development of such property in order to establish certainty in the development process. B. Owner is tlze owner of approximately 110 acres of land located in the East Orange area of the City as set forth in the legal description on Exhibit"A" and shown on Exhibit"B" attached and made a part of this Agreement (hereinafter defined in Section 1 as the "Property"): � C. Pursuant to the Development Agreement Statutes and the Development Agreement Ordinances, the City Council of City finds that: (i)the provisions set forth in this Agreement do implement the goals and policies of the City's General Plan,provide balanced and diversified land uses and impose appropriate standards and requirements with respect to land development and usage in order to maiutain the overall quality of life and the environment within the City; (ii)this Agreement is in the best interests of and not in detriment to the public health, safety and general welfare of the residents of the City and the sui7ounding region; (iii) adopting this Agreement is consistent with the City's General Plan as amended by General Plan Amendment No. and constitutes a present exercise of the City's police power; and (iv)this Agreement is being entered into pursuant to and in compliance with the requirements of the Development Agreement Statutes and with the Development Agreement Ordinances. D. Owner is proposing to develop the Property, or allow the property to be developed with: (i)natural open space on approximately 50 gross acres; (ii)recreational uses on approximately 10 gross acres; (iii)no more than a 265 unit/beds age-qualified village on approximately 16 gross acres; and (iv)no more than 130 single-family residences on approxunately 34 gross acres all together, identified as Rio Santiago (hereinafter defined in Section 1 as the "Project"). E. Owner has filed applications with the City for development of the Project, including an Environmental Impact Report (hereinafter defined in Section 1 as the "EIR") in compliance with the California Environmental Quality Act (hereinafter defined in Sectioii 1 as 1/24/14 101592 #103590 vll "CEQA"), a General Plan Amendinent, Zone Chalige, Specific Plan, Paxcel Map, Tentative Tract Map, Major Site Plan Review, Design Review Committee, and this Agreement(hereinafter defined in Section 1 as the "Land Use Entitlements"), as more particularly described on Exhibit"C" attached and made a part of this Agreement by this reference. F. Owner has applied for approval and the City has granteci approval of this Agreement in order to create a beneficial Project and a physical environinent that will conform to and compliment the goals of the City, create a Project sensitive to human needs and values, facilitate efficient traffic circulation as well as the other public benefits stated herein. Owner acknowledges and accepts the conditions of the City's approval. G. The following actions were taken with respect to the approval of this Agreement and the Project: (i) An environmental review has been conducted and an EIR has been certified for the Project in accordarice with the California Environmental Quality Act,hereinafter defined in Section 1 as "CEQA." _ (ii) On February 10, 2014 and on January 20, 2014, the Planning Commission of the City held duly noticed public hearings to consider Owner's application for this Agreement and by Resolution No. , recommended to the City Council approval of this Agreement. (iii) On , 2014, the City Council of the City held a duly noticed public hearing on the Owner's application for this Agreement and on ; 2014, the City Council adopted Ordinance No. approving this Agreement. (iv) Owner represents to.the City that, as of the Effective Date (as hereinafter defined in Section 1), it is the owner of the Property, subject to encumbrances, easements, covenants, conditions,restrictions, and other matters of record. AGREEMENT NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged,the Parties hereto hereby agree as follows: 1. DEFINITIONS. 1.1 Definitions. The following terms when used iu this Agreement shall be defined as follows: 1.1.1 "A�reement"means this Development Agreement. 1.1.2 "Approval Date" means the date on wluch the City Council adopted the ordinance approving this Agreement. 1/24/14 10159.2 �103590 vll 2 � 1.1.3 "Arena Site" means the existing Mara Brandman Arena, which is cui-�ently zoned Residential R-1-40 and used to ensure the preservation of the site for activities related.to the exercise, training, sustenance and well being of horses and related community activities. The site is situated adjacent to the Project on approximately 3.9 acres of land located south of Santiago Canyon Road., west of Orange Park Boulevard, and east of the Mara Brandman Arena Expansion Site which borders Nicky Way,in the City. 1.1.4 "CEQA„ means the California Environmental Quality Act found in Public Resources Code Sections 21000 tluough 21178 and the Guidelines promulgated thereunder found in California Code of Regulations Sections 15000 through 15387. 1.1.5 "Citv„ means the City of Orange, a political subdivision of the State of California. , 1.1.6 "Coun "means the County of Orange, California. 1.1.7 "Development" means the improvement of the Propei-ty for the purposes of completing the structures, improvemerits and facilities comprising the Project including, but not limited to: demolition of existing structlues; 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, improveinent or facility after the construction and completion thereof. 1.1.8 "Development Ap rop vals„ ineans all site-specific pennits, certificates, approvals, and other entitlements approved or issued by the City for construction, use, � occupancy, andlor development of or on the Property. For the purposes of this Agreement, Development Approvals shall be deeined to include,but are not limited to,the following actions, including revisions, addenda, amendments,and modifications to these actions: (a) General Plan amendinents; (b) adoption of specific plans and changes of zone; (c) planned development pennits; (d) special use pennits, conditional use peimits, and site development pei7nits; (e) � tentative and final subdivision and parcel maps, including vesting maps; (� site plans, site plot plans, variances, and preliminary and final development plans, including Major Site Plan review; (g) sewer and water connection pennits and agreements; (h) grading, stockpiling, encroachment, and building pei7nits; 1/24/14 10159.2 �103590 vll 3 (i) certificates of compliance, lot line adjustments, and boundaxy adjustments; (j) street, drainage, utility, stormwater, landscape and other improvement permits and agreements; (k) design review; (1) certificates of occupancy; (m) development agreements; and (n) CEQA environmental review documents for a Project. 1.1.9 "Development Exaction" means any requirement of City in connection with or pursuant to the Development Plan for fihe dedication of land, the construction of public improvements or public facilities, or the payment of fees in order to lessen, offset, mitigate or compensate for the impacts of development of the Project on the environment or other public infrast�ucttue systems. 1.1.10 "Development Plan" means development of the Propei-ty pursuant to this Agreement, the Existing Development Approvals, and the Existing Land Use Regulations, as well as all Subsequent Development Approvals and all Subsequent Land Use Regulations to which Owner has consented to in writing. 1.1.11 "Donation" means the offer or transfer of a property interest to a Non- Profit organization and includes the term dedication if the offer or transfer of the property interest is to the City, County or other public entity. 1.1.12 "EfFective Date" means the date this Agreement is recorded with the Orange County Recorder. 1.1.13 `BIR" means the Project Envuonmental Irnpact Report State Clearinghouse No. 2009051072 certified by the City and the Final Mitigation Monitoring Plan approved by the City in compliance with CEQA. 1.1.14 "Existin� Develo�ment A�provals" means all Development Approvals, including this Agreement, approved or issued for the Project oii or before the Approval Date, ii7espective of their effective dates. By sigi�ig this Agreement, Owner has consented to those Development Approvals for the Property wluch were approved at Owiier's request on the Approval Date. 1.1.15 "Existin� Land Use Re�ulations" ineans all Land Use Regulations in effect on the Effective Date. However, changes to Land Use Regulations approved or becoming effective between the Approval Date and the Effective Date shall not be considered part of the Existing Land Use Regulations without Owner's prior written consent. Owner has consented to the General Plan Ainendment, zone change, and other Land Use Regulations,for the Property 1/24/14 10159.2 #103590 vll 4 which were approved at Owner's request on the Approval Date and which shall be considered part of the Exist�ng Land Use Regulations. 1.1.16 "Land Use Re�ulations"means: (a) All ordinances, resolutions, codes; rules, regulations, moratoria, initiatives,and official policies of the City governing the development and use of land, including, without limitation, the Ciry's General Plan, zoning ordinances, subdivision regulations (but not tentative and final subdivision and parcel maps, including vesting maps, which are Development Approvals), the City's Municipal Code (subject to the exceptions listed below in this Section), and their respective amendments. Land Use Regulations govern, without limitation, the permitted use of land, the density or intensity of use, timing and phasing of development, the maximum height and size of buiidings, the provisions for reservation or dedication of land for public purposes, and the design, improvement, construction, and occupancy standards and specifications applicable to the Project . Land Use Regulations do not include any City ordinance, resolution, code, rule, regulation or official policy governing business licenses issued by the City for the conduct of businesses, professions, and occupations; (b) Taxes and assessments; (c) The control and abatement of nuisances; (d) The gianting of encroachment permits and the conveyance of rights and interests which provide for the use of the entry upon public property; and (e) The exercise of the power of eminent domain. 1.1.17 "Mara Brandman Arena Expansion Site" means the approximately 3.7 acres of land currently used for a flower/fruit stand and parking lot located adjacent to the 3.9-acre Arena Site. - 1.1.18 "Mortgagee„ means a mortgagee of a mortgage, a beneficiary under a deed of trust or any other security-instrument a lender has recorded on the Property. 1.1.19 "Non-Profit" means a public benefit non-profit entity qualified for tax- exempt status pi.usuant to section 501(c)(3) of the federal Internal Revenue Code selected by Owner. The Board of Directors governing the selected Non-Profit shall include, witllout limitation, (a) individuals who have demonstrated a conunitment to the Orange Park Acres conununity tluough volunteerisin in civic organizations, including by way of example and not limitation, such organizations as the Orange Park Acres Women's League, the YMCA of Orange, the Orange Acres Backbreakers 4H Club and the Orange Park Acres Equestrian Trails Corporation ("OPA-ETC"), (b) individuals who possess an expertise iii equestrianism, or (c) uldividuals with an expertise in the operation and mailagement of Non-Profits. 1.1.20 "Owner" means the persons and entities listed as Owner on page 1 of tlus Agreement and their successors in interest to all or any part of the Propei-ty. 1/24/14 10159.2 #103590 vll 5 1.1.21 "Project" means the development of the Project on the Properiy with the land uses described in Recital B and contemplated by the Development Plan as such Development Plan may be further defined, enhanced or modified pursuant to the provisions of this Agreement. 1.1.22 "Pro�erty" means the real property described on Exhibit`�A" and shown on Exhibit"B" attached to this Agreement. 1.1.23 "Subsequent Develo mp ent Approvals" means all Development Approvals approved, granted, or issued for the Project after the Effective Date which are required or permitted by the Existing Land Use Regulations, the Subsequent Land Use Regulations to which Owner has consented in writing, and this Agreement. A Development Approval applied for by Owner after the Approval Date and approved, granted, or issued before the Effective Date also shall be considered a Subsequent Development Approval. 1.1.24 "Subsec�uent Land Use Re�ulations" means any Land Use Regulations both adopted and effective after the Approval Date and which are not included within the definition of.Existing Land Use Regulations. 2. GENERAL PROVISIONS. 2.1 Bindin� Effect of A�reement. The Property is hereby made subject to tlus Agreement. Development of the Project on the Property is hereby authorized and shall be carried out in accordance with the terms of this Agreement. 2.2 Ownershiu of Property. Owner represents and covenants that it is the Owner of the fee simple title to the Property. 2.3 Term. The term of this Agreement shall commence on the Effective Date and shall continue for a period of ten (10) yeaxs thereafter unless this term is inodified or extended pursuant to the provisions of this Agreement. If upon the 10 year termination date the 100t1' certificate of occupancy has been issued for tlie Project, the term shall autoinatically be extended an additional five years. The term of this Agreement shall be tolled during the pendency of litigation or other proceeding to challenge or set aside the validity of this Agreement or any Development Approval relatuig to this Agreement. 2.4 Assi�nment. 2.4.1 Ri�ht to Assi�n. Owner shall have the riglit to sell, transfer or assign the Property in whole or in part, to any person, partnership,joint venture, firm or coiporation at any time during the term of tlus Agreeinent; provided, however, that any such sale, transfer or assigmnent shall include the assignment and assuinption of the rights, duties and obligations arising under or from this Agreement and be made in compliance with the following conditions precedent: (a) No sale, t�ansfer or assigi�nent of any right or interest under this Agreeinent shall be made ui�less made together with the sale, transfer or assignment of all or a part of the Propei-�y; 1/24/14 10159.2 ' #103590 vll 6 (b) Owner shall give written notice of the transfer to the City at least 30 days prior to the effective date of the transfer. Such notice shall include the name of the Development Transferee, together with the conesponding entitlements being transfened to such Development Transferee and the agreement between OWNER and such Developinent Transferee pertaining to such transfer shall provide that either OWNER or the Development Transferee shall be liable for the performance of those obligations of OWNER under tlus Agreement which relate to the Transfei�ed Property, if any. Each Development Transferee and OWNER shall notify CITY in writing which entity sha11 be liable for the performance of each respective obligation 30 days prior to the date of any sale, assignment or transfer pursuant to this subsection. the name and address of the assignee and the name, address and phone number of the assignee's designated contact. The transfer shall not be effective unti130 days has passed from the time of the notice. (c) The provisions of this Section 2.4 shall not apply to hansfers by Owner of an interest in all or a portion of the Property to any subsidiary or affiliate entity of Owner. 2.5 Amendment or Cancellation of A�reement. This Agreement may be amended or canceled in whole or in part only by written consent of all Parties in the manner provided for in Government Code Section 65868. 2.6 Termination. Tlvs Agreement shall be deemed tei-minated and of no further effect upon the occunence of any of the following events: . (a) Expiration of the stated term of this Agreement as set forth in Section 2.3. (b) Completion of a referendum proceeding or entry of a final judginent setting aside, voiding or almulling the adoption of the ordinance approving this Agreement. (c) 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. � (d) Termination pursuant to Section 4 of this Agreement. Termination of tlus Agreement shall not automatically ulvalidate the Land Use Regulations generally applicable to the Property, ulcluding but not liunited to the general plan, specific plan and zoning designations. However, upon the date of tei-�nination of this Agreement, the Owner shall have no vested rights under this Agieement to build the Project in accordance with the then applicable Land Use Regulations. Owner's right to any developinent of the Property shall be subject to the ordinary exercise of the City's police power, including the adoption of a General Plan amendment, zoning change, or other Land Use Regulations ' applicable to the Property. Owner acknowledges that, following tei711ination of t1us�Agreement, the City may amend the general plan, specific plan and zoning designations of the Properry and Owner's right to develop the Property shall be detei7nined by then existing Califoinia law. The 1/24/14 10159.2 #103590 vll �] terms of this Section 2.6 are, by their very nature, intended to survive the teimination of this Agreement. 2.7 Notices. All notices under this Agreement sha11 be in writing and shall be deeined delivered when personally received by the addressee, or within three (3) calendar days after deposit in the United States mail by registered or certified mail, postage prepaid, return receipt requested, to the following Parties and their counsel at the addresses indicated below; provided, however, if any Party to this Agreement delivers a notice or causes a notice to be delivered to any other Party to this Agreement, a duplicate of that Notice shall be concurrently delivered to each other Party and their respective counsel. If to City: City of Orange 300 East Chapman Avenue Orange, CA 92866 Facsimile: (714) 744-5147 Attention: City Manager with a copy to: City of Orange 300 East Chapman Avenue Orange, CA 92866 � Facsiinile: (714) 538-7157 Attention: City Attorney If to Owner: JMI Properties/Santiago Partners, LLC 888 S. Disneyland Drive Suite 101 Anaheim, CA 92802 Facsimile: (714) 687-1900 Attention: Christopher Nichelson and Bret S. Berriard with copies to: KTGY Group, Inc. 17922 Fitch Irvine, CA 92614 Facsunile: (949) 851-5156 Attention: Ken Ryan O'Neil LLP 19900 MacArthLu Blvd., Suite 1050 Irvine, CA 92612 Facsimile: (949) 798-0511 Attention: Dennis D. O'Neil i/24/14 10159.2 #103590 vll g Duane Morris LLP 750 S St�eet, Suite 2900 San Diego, CA 92102 Facsimile: (619) 744-2201 Attention: David E. Watson Notice given in any other manner shall be effective when received by the addressee. The addresses for notices may be changed by notice given in accordance with this provision. 3. DEVELOPMENT OF THE PROPERTY. 3.1 Ri�ht to Develov. Subject to the terms of this Agreement including the Reservations of Authority (see Section 3.18 below), Owner shall have a vested right to complete development of the Project on the Propei-ry in accordance with, and to the extent of, the Development Plan. The Project shall remain subject fo all Subsequent Development Approvals required to coinplete the Project as contemplated by the Development Plan. The permitted uses of the Propei-ty, the density and intensity of use, the maximum height and size of proposed • buildings, and provisions for reservation of dedication of land for public purposes shall be those set forth in the Development Plan. 3.2 Mara Brandman Arena Expansion Site. The Maia Brandman Arena Expansion Site consists of 3.7 acres of land currently improved with a flower/fruit stand and paved parking lot uses incidental to the adjacent 3.9 acre Arena Site depicted on Exhibit"D." 3.2.1 Donation. Prior to the issuance of the residential building pei-�nit, Owner shall donate the Mara Brandman Arena Expansion Site to the City oii a right of first refusal basis. If the City does not accept the Donation, Owner shall offer to donate the Ma1a Brandmasl Arena Expansion Site to the Non-Profit wluch is operating the Arena Site. If the Non-Profit currently operating the Arena Site does not accept the Donation,then Owner shall offer to donate the Mara Brandman Arena Expansion Site to another Non-Profit or to the Rio Santiago Master Homeowners Association. Each offer to donate shall be in an "as-is" condition for future uses which may be incidental to the Arena Site. Incidental uses shall be liinited only to (a) equestrian uses, (b)uses incidental to equestrian uses, (c)uses pei�nitted by the current zoning of the Mara Brandman Arena Expansion Site, (d) current non-conforming uses, (e) uses that do not exceed the cui7ent intensity of use, and (fl uses that do not create new envirorunental impacts greater than the existing uses. If any lawsuit, initiative or referendum is filed that results in invalidating this Agreement or the Developinent Approvals, Owner inay withhold making the Donation. 3.2.2 Conveyance of the Mara Brandman Arena Exnansion Site. The conveyaiice of the Mara Srandman Arena Expansion Site shall be by grant deed and/or donation agreement that incoiporates and addresses rights, resti-ictions on use maintenance obligations, management of the Mara Brandman Arena Expansion Site subject to the following acknowledgements,terms and contingencies: (a) Acceptance of the Donation must be received witlun foi-ty-five (45) days of making the offer of Donation; and 1/24/14 10159.2 #103590 vl l 9 (b) The Donation cannot be transferred or assigned by the City or the Non-Profit without the prior consent of the Owner, which consent shall not be urueasonably withheld if the assignment is to a Non-Profit meeting all of the criteria in Section 1.1.19 of this � Agreement. 3.2.3 Ri�ht of Reversion. The conveyance documentation transfening ownership of the Mara Brandman Arena Expansion Site to the City or the Non-Profit shall have a right of reversion in favor of the Owner in the event the use of such facilities for the purposes � for which the Donation is made is discontinued for a period exceeding twelve (12) consecutive � months. 3.3 Public Benefits. The Owner will provide significant public benefits in conjunction with the development of this Project. The Parties recognize that the public benefits provided in this Section are subject to further specificity and detail by both the Owner and City, as well as further review and approval by the City. The Parties agree that the following constitute significant public benefits being provided by the Project: The Owner and the City have not reached a tentative agreement on what if any aspects of this project qualify as public benefits. The Owner believes the following (in italics) constitute significant public benefits. The City Council shall make the final determination of the public benefits in conjtuiction with • conveyance of the appYoximately SO acNes of the Santiago Creek Greenway Reserve Open Space to the County for resto�ation and maintained in a natu�al condition as public open space. This SO acres of land is cu�rently zoned for �esidential and sand/gravel uses encon�passzng both the noYth and south side of Santiago C�eek. This area provides the opportunity for the potential future expansion of and connection to Santiago Oaks Regional Park, located to the east of the Project site. Potential future recreatzonal trail connection to the west towards Cannon Str�eet could also be made. If the County of Orange does not accept the donation, the SO acYes will then be offered to the City or suitable `public fnterest" non profit such as Silve��ado Modjeska Recreation and Park District, California Land Conservancy, OCTA, Trails 4 All, etc. Should a suitable non- profit not be identified, then the project HOA will own and�naintain; • donation and rough grade, approximately 10 acYes of open space and rec��eational uses to accomrnodate recreational trails, sports fields- and courts, parking, YMCA or community facility with a swimming pool, and ancillaNy support uses valued at approximately$2,700,000. If Owner is not successful in entering into an agreeTnent with the YMCA or some other similar organization, Ownef� shall donate the 10 acYes to the City and improve the property�vith lighted fields and Yestroo�n facilities; • provide for ,approximately 1.3 �niles of Yegional and local public trails valued at approximately$2,900,000; a donation of 3.7 acYes of the Ma�^a Brcrndman A��ena Ex�ansion Site as �lrovided in Section 3.2 of this Agreement valued at a�proxif��ately$3,600,000; 1/24/14 10159.2 #103590v11 , 1� • contribution of the sum of One Hundred Thousand Dolla�s ($100,000) to the County to provide for the potential connection of the public Santiago Creek t�ail through the Project and accessibiliry to the Santzago Oaks and I�vine Regional public parks east of the P�oject; • cont�ibution of the sum of One Hundred Thousand Dollars (�100,000) to the County foN rip rap�evetment enhancement to the north side of Santiago Creek; • contribution of the sum of One Hundred Thousand Dollars ($100,000) to the County towa�d the Cannon Street Crossing to connect the Project trails to the existing offsite t�ails; and • relocating the existing two water wells to an a�ea to be used by the County for maintaining landscaping along the Santiago Creek tYail and to be used by the City for �naintaining the landscaping within the new Yaised median to be built by Owne�. 3.4 Anplication Processin�. In connection with any approval which the City is permitted or has the right to make under this Agreement relating to the Project and the Development Plan, or otherwise under its rules, regulations an.d official policies, the City shall exercise the City's discretion or take action in a mannex which is as expeditious as reasonably possible. 3.5 . Mello-Roos Communities Facilities.Districts• Other Assessment Districts or Financin� Mechanisms. Pursuant to Chapter 2.5 (commencing with section 53312) Part 1, Division 2, Title 5 of the Govei�unent Code of the State of California, cominonly known as the "Mello Roos Community Facilities Act of 1982," Owner may, at its sole election, petition the City Council of the City to establish a Community Facilities District or enter into a Joint Commuiuty Facilities Agreement with another public entity, in accordance with the City's policies in existence on the Effective Date. Alternatively, or in addition thereto, Owner inay request that the City initiate and complete proceedings under the Municipal Improvement Act of 1911, the Municipal Improvement Act of 1913, the Improvement Bond Act of 1915, the Landscaping and Light'vig Act of 1972, or any and all other available public financing � mechanism, to provide public conduit financing for the construction of public infrash-ucture improvements on the Propei-ty. If so requested by Owner, the City shall cooperate with Owner (or, for inatters beyond its control, shall use its best efforts) in takinb all steps necessary to cause the Community Facilities District or Joint Community Facilities District or Alternative Financing Mechanisms to issue bonds for such piuposes. If the Property is included within a Community Facilities District or Joint Coinmunity Facilities District or Altei-native Funding Mechanism with other sunounding properties, the special taxes or special assessments burdeiung the vaxious properties so included shall be apportioned on a fair share basis related to the benefit derived by . each of such properties in accordance with City policies at the time such property is included. 3.6 Other Governmental or Quasi-Governmental Permits. Owner shall apply for such other permits and approvals as may be required by other governmental or quasi governmental agencies having jurisdiction over the Project (such as public utilities or special districts, or other federal or state resource agencies) to the extent required for the development of, or provision of, services and facilities to the Project as set foi-th in the Development Plan. The City shall cooperate with and assist Owner in obtaiiung such pei7nits and approvals, asid, I/24/14 10159.2 #103590 vl l 11 where necessary in making application for such approvals or permits. Owner shalt be solely responsible for all costs and shall be responsible for the processing of all such permits. 3.7 Consistencv Between This A�reement and Current Laws. The City represents that as of the date of the execution of this Agreement, there are no rules, regulations, ordinanees �or official policies of the City that would interfere with the development of the Project according to the Development Plan. 3.8 Assessments, Fees and Miti�ation. The City shall not impose any future assessment, fee or mitigation measure on the Property, the Project or the Development Plan or any portion thereof, except (a) those existing and proposed assessments, fees and mitigation measures in existence on the date of this Agreement, (b) such other fees and assessments as may be adopted or imposed by the City in conformance with the requirements of Article XIII D of the California Constitution, (c) such other development impact fees or categories of development impact fees which are adopted on a City-wide basis or as required as a condition to obtaining County funding; (d) such fees as are imposed and set by governmental entities not controlled by City but which are required to be collected by City; and (e) such other development impact fees or categories of development impact fees relating to the Project which are, imposed on other - development projects in the City and are adopted and levied based on a benefit assessment. Fees � payable to City sha11 be at rates applicable on the date the fee"is paid. City further agrees to use any fees paid with respect to development of the Praject to be utilized iri accordance with applicable law. The Owner and the City disagree on aiiy entitlement to park fee credits. The Owner believes the Project provides adequate park fee credits for the Project's obligations for any park land dedication or payinent of any park impact fees in lieu thereof pursuant to Section 16.60 et seq. of the City Municipal Code. The City Council shall make the final deternunation of what if any park fee credits will be provided to the Project. - 3.9 Park Fee CYedits. City shall provide paYk fee cYedits for the Project's obligations for any park land dedication or payment of any paYk impact fees in lieu the�eof pursuant to Section 16.60 et seq. of the City Municipal Code as peNmitted by tlze Project EIR mitigation measures and as determined by the value of the Public Benefits provided in this Agreenzent. 3.10 Development Exactions. All further applications for Subsequent Development Approvals conteinplated by this Agreement, or made in connection with the development, construction, use or operation of the Project hereunder, shall be processed in accordance with the Development Plan, and: (a) City shall not impose thereunder any further Development Exactions other tllan those called for under the Existing Development Approvals and/or as pei7nitted under the provisions of tlus Agreeinent; and (b) such applications and Subsequent Developinental Approvals thereunder shall not result in the imposition upon Owner of any additional requirements, other than those already imposed pursuant to the Existing Developnlent Approvals and Existing Land Use Regulations, or otherwise peimitted under the provisions of this Agreement. 1/24/14 1O1S9.2 . #103590 vl l IZ 3.11 Reimbursement by the City. Pursuant to Government Code Section 65865.2, tlie Ciiy hereby agrees that as future development fees, assessments and exactions are imposed on future projects which have benefited from the fees, assessments and exactions paid by Owner, the City shall promptly reimburse Owner to the extent that such.fees, assessments and exactions paid by Owner benefited lands outside of the Property, but only to the extent that the City , actually receives or collects such fees, assessments or exactions for a period of ten years froin the date the fee was paid. City shall collect such fees, assessments or exactions prior to issuance of building permits for development of the benefited lands outside of the Property. 3.12 Effect of A�reement on Land Use Re�ulations. The rules, regulations and officials policies governing permitted uses for development of the Project on the Property, the density and intensity of use for development of the Project on the Property, the maximum height and size of proposed buildings, and the design, improvement and construction standards and specifications applicable to development of the Project on the Property shall be limited to those . set forth in the Development Plan. � 3.13 Timin� of Development. The Parties acknowledge that Owner cannot at this time predict when or the rate at which phases of the Property will be developed. Such decisions depend upon numerous factors which are not within the control of Owner, such as market orientation and demand, cost of materials, interest rates, absorption, completion and other similar factors. Since the California Supreme Court held in Pardee Construction Co v Cit�f 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 acknowledgulg and providing that Owner shall have the right to develop the Property in such order and at such rate and at such time as Owner deems appropriate within the exercise of its subjective business judginent. 3.14 Water Supply. Pursuant to Government Code §65897.5(c), the tentative map prepared for any subdivision of the Property shall comply with the provisions of Califoi-�lia Government Code §66473.7 relating to the availability of water supply, as enacted as of the Effective Date. Any water quality treatment and conservation features constructed in the Project shall be maintained by the Project Master Homeowners Association. 3.15 Chan�es and Amendments. The Parties acknowledge that iii connection with development of the Project and Future Approvals, Owner may determine that changes are appropriate and desirable in the existing Development Approvals. In the eveiit Owner determines that such changes are appropriate and desirable, Owner may apply in writing for an amendinent to the Development Approvals to effectuate such change, and the City shall process and act on such application notwithstanding anything in this Agreement that may be to the contrary. The City shall have no obligation to grant any such application by Owner that modifies the Development Approvals. If approved in a form to which Owner has consented in writing, � any such chaiige in the Developnient Approvals shall be incorporated info this Agreement as a1i addendum, and nzay be further changed from time to time as provided in this Section. Any change in the Development Approvals made in accordance with the procedures therefore required by applicable City, State or Federal laws or regulations and with the written consent of Owner shall be conclusively deemed to be consistent with tlus Agreeinent, without need for any 1/24/14 10159.2 � �103590 vll 13 amendment to this Agreement or any of its exhi.bits. In the event Owner finds that a change in the Existing Development Approvals is necessary or appropriate, Owner 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, provided that the review and processing of such change shall be limited to the reviewing bodies set forth in Section 17.08.020 of the City of Orange Municipal Code and no other City. reviewing or advisory body. 3.16 Reservations of Authoritp. 3.16.1 Limitations, Reservations and Excentions. Notwithstanding any other provision of this Agreement, the following regulations shall apply to the development of the Project on the Property. (a) Processing fees and charges imposed by City to cover the estimated actual costs to City of processing applications for development of the Project or for monitoring compliance with any Development Approvals granted or issued in effect at the time said approval is granted or permit is issued. (b) Procedural regulations relating to hearing bodies, petitions, applications, notices, findings, records, hearings, reports, recommendations, appeals and any other matter of procedure, except that any future review and processing for the Project shall be limited to the reviewing bodies described in Section 17.08.020 of the City of Orange Municipal code and no other City reviewing or advisory body. (c) The application of new ordinances, rules, regulations and policies relating to uniform codes adopted by City or by the State of California as state codes, such as the Uniform Building Code, National Electrical Code, Uniform Mechaiucal Code or Uniforxn Fire Code, as amended, and the application of such codes to the Project Propei-ty at the time of application for issuance of building peimits for structures on the Project Propei-ty, including such ainendments to such codes as the City may adopt from time to time. (d) Regulations which may be in conflict with the Developinent Plan but which are reasonably necessary to protect the public health and safety. To the extent possible, any such regulations shall be applied and constiued so as to provide Owner with the rights and assurances provided under this Agreement. (e) Regulations which are in conflict with the Development Plan provided Owner has given written consent to the application of such regulations to development of the Project on the Propei-ty. 3.16.2 Modification or Suspension by State or Federal Law. In the event that State 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 Agreeinent shall remain in full force and effect to the extent such laws or regulations do not render such remaining provisioi�s impractical to enforce. _ 1/24/14 101592 #ro3s9o�ii 14 3.17 Referenda and Moratorium. It is the express intent of City and Owner that as of the date of this Agreement, this Agreement is a legally binding contract which shall, to the extent permitted by law, prevail over the provisions of any subsequently enacted moratorium, statute, ordinance, limitation or other measure, whether or not enacted by City, or by voter initiative or referendum, and whether or not such initiative, moratorium, referendum, statute, ordinance, limitation or other measure relates, in whole or in part,to the rate, timing, sequencing or phasing of the development or construction of all or part of the Project or the Development Plan or affecting Development Approvals which are issued by City or the land use development rights vested in Owner for development of the Property under the terms of this Agreement. 3.18 Tentative Tract Mau and Parcel Map Extension. In accordance with the provisions of Section 66452.6 of the Goveinment Code, tentative subdivision map(s) or tentative parcel map(s), heretofore or hereafter approved in connection with development of the Propei�ty, shall be granted ari extension of time for the term of this Agreement or as provided by the Subdivision Map Act,which ever period is longer. 4. REVIEW FOR COMPLIANCE. 4.1 Annual Review. The City's Director of Cornmunity Development shall review this Agreement annually, on or before the amuversary of the Effective Date, in order to ascertain the reasonable good faith compliasice by Owner with the terms of the Agreement. Owner shall submit an annual monitoring report, in a form reasonably acceptable to the City's Director of Communiiy Development, within 30 days after vcnitten notice fiom the City's Director of Community Development. 4.2 Procedure. (a) During the annual review, Owner shall be required to demonstrate good faith compliance with the teims of the Agreement. The burden of proof on this issue shall be on Owner. � (b) Should the Director find that the Owner is not in compliance, the Owner shall receive written notice of non-coinpliance from the City which clearly specifies terms of the non-compliance and sets forth the remedy to cure. Owner shall have the right to cure the non-compliance with sufficient tiine prior to the Director's submittal of the report to the City Cousicil. (c) Upon coinpletion of the aru�ual review, the City's Director of Corrunuiuty Development shall submit a repoi-t to the City Coi.uicil setting forth the evidence concerning good faith compliance by Owner with the tei-ms of this Agreement and his or her recommended finding on that issue. (d) If the City Council finds on the basis of substantial evidence that Owner has complied in good faith with the ternls and conditions of this Agreement, tlie review shall be concluded. (e) If the City Council�nakes a preliminary finding that Owiier has not complied in good faith with the terms and conditions of this Agreement, the City Council may I/24/14 10159.2 #103590 v l l i s modify or terininate this Agreement pursuant to the procedures set forth in Section 4.3 of the Agreement. 4.3 Proceedings Upon Modifications or Termination. If, upon a finding, the City determines to proceed with modification or teimination of this Agreement, City shall give written notice to Owner of its intention so to do. The ilotice shall be given at least forty-five (45) 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 tei7ninate or to modify the Agreement; and (c) Such other information as is reasonably necessary to inform Owner of the nature of the proceeding. 4.4 Hearin� on Modi�cation or Termination. At the time and place set for the hearing on modification or tennination, Owner shall be given an opportunity to be heard. Owner shall be required to demonstrate good faith compliance with the terms arid conditions of this Agreement. 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 relating to the Project as are reasonably necessary to protect the interests of the City. 4.5 Certificate of A�reement Compliance. If, at the conclusion of the annual review, Owner is found to be in compliance with this Agreement, City shall, upon request by Owner, issue a certificate of agreement compliance to Owner stating that after the most recent annual review and based upon the information known or made to the Director of Community � Development and the City Council that(1)tlus Agreement remains in effect and(2) Owner is not in default. The certificate of agreement compliance shall be in recordable form, shall contain information necessary to communicate constructive record notice of the finding of compliance. Owner may record the certificate of agreement compliance with the Orange County Recorder. 4.6 Failure to Conduct Annual Review. The City's failure to conduct an annual review of compliance with the teims of this Agreement shall not constiiute or be asserted by either Pai-ty as a default of this Agreement. 5. REMEDIES. 5.1 Enforcement. The Parties retain all renledies at law or in equity to pursue enforcement of the terms alid provisions of this Agreement, subject first to following procedures set forth in Section 4 of tlus Agreement in the case involving the annual review for compliance and prior to filing a court action following the alternative dispute resolution procedures set forth in Section 5.2 of this Agreement. 1/24/14 101592 #103590 vl l 16 5.2 Administration of A�reement and Resolution of Disputes 5.2.1 Administration of Disuutes. All disputes involving the enforcement, . interpretation or administration of this Agreeinent (including, but not limited to, decisions by the City staff and City Council concerning this Agreement and any of the projects or other matters concerning this Agreement which are the subject hereo fl shall be subject to good faith negotiations between the Parties to resolve the dispute. Thereafter, any dispute which cannot be resolved shall be heard by, and resolved pursuant to the mandatory alternative dispute resolution procedures set forth in Section 5.2.2 herein below. Nothing in this Agreement shall prevent or delay Owner or City from seeking a temporary or preliminary injunction in state or federal court if either Party believes that injunctive relief is necessary or a more immediate remedy. 5.2.2 Mandatory Alternative Disnute Resolution. All disputes regarding the enforcement, interpretation or adminisfixation of this Agreement (including, but not limited to, appeals from decisions of the City Council) shall be heard and resolved pursuant to the alternative dispute resolution procedure set forth herein. All matters to be heard a�id resolved shall be heard and resolved by a single appointed referee who shall be a retired judge from either the California Superior Court, the California Court of Appeals,the California Supreme Court,the United States District Court or the United States Court of Appeals, provided that the appointed referee shall have significant and recent experience in resolving land use and real property disputes. The Pai-ties to this Agreement who are involved in the dispute shall agree and appoint a single referee who shall then try all issues, whether of fact or law, and report in writing to the � Paa.-ties to such dispute all findings of fact and issues aiid decisions of law and the final judgments made thereon, in sufficient detail to inform each Party as to the basis of the referee's decision. The referee shall try all issues as if he/she were a California Superior Court judge, sitting without a jury, and shall have all legal and equitable powers granted a California Superior Colu-t judge. Prior to the hearing, the Parties shall have full discovery rights as provided by the California Code of Civil Procedure. At the hearing, the Parties shall have adequate time to prepare and the right to present evidence, examine and cross-examine lay and expert witnesses, submit briefs and have arguments of counsel heard, all in accordance with a briefing and hearing schedule reasonably established by the referee. The referee shall be required to follow and adhere to all laws, rules and regulations of the State of Califoi-nia in the hearing of testimony, admission of evidence, conduct of discovery, issuance of a judgment and fashioning of a remedy. The cost of any proceeding held pursuant to this Section shall initially be borne equally by the Parties involved in the dispute, and each Party shall bear its own attorneys' fees. The referee shall use his/her best efforts to finally resolve the dispute and issue a final judgment within sixty (60) calendar days froin the date of concluding the proceedings. The written judgment niay be appealed to the Orange County, California Superior Court. In the event either Party, upon conclusion of the alternative dispute resolution procedure and the rendering of the final judgment of the referee, commences a court action against the other Party wluch arises out of a default of, breach of, failure to perform this Agreement or otherwise related to this Agreement, then the prevailing paz-ty in the action shall be entitled to recover its attorneys' fees and litigation expenses from the other Party in addition to whatever relief to which the prevailing Pai-ty may be entitled. 1/24/14 10159.2 #103590 v 11 j"] 5.2.3 No Recourse for Dama�es. The Parties hereto agree that (i) the Owner and City would iiot have entered into this Agreement if they were to be held liable for general, special or compensatory damages•for any default with respect to this Agreement, and (ii) Owner and City have adequate remedies, other than general, special or compensatory damages,to secure Owner's and City's compliance with their obligations under this Agreement. Therefore, Owner and City agree that neither tl�e Owner or City nor their officers, employees or agents shall be liable for any general, special or compensatory damages to the other or to any successor or assignee or transferee of the other for their respective breach or default with respect to this Agreement; and Owner and City covenant not to sue the other or their respective officers, employees or agents for, or claim against the other or their respective officers, employees or agents, any right to receive general, special or compensatory damages for the Owner's or City's breach or default under this Agreement, as the case may be. Notwithstanding the provisions of this Section, the City agrees that Owner shall have the right to seek a refund or return of any deposit made with the City or fee paid to the City in accordance with the Existing Approvals. In the event either Party, upon conclusion of the alternative dispute resolution procedure and the rendering of the final judgment of the referee, commences a court action against the other Party which arises out of a default of, breach of, failure to perform this Agreement or otherwise related to this Agreement,then the prevailing party in the action shall be entitled to recover its attorneys' fees and litigation expenses froin the other Party in addition to whatever relief to which the prevailing Pa�.-ty may be entitled. 5.3 Indemnity. . Owner shall indemnify and hold City, its officers, agents, employees and independent contractors free and harmless from any liability based or asserted upon any act or oinission of Owner, its officers, agents, employees, subcontractors and independent contractors for property damage, bodily injury, or death or any other element or dainage, relating to or arising from the activities provided in this Agreement or any challenges that may be filed against the City arising out of the approval of this Agreement or any of the Existing Approvals. City may in its discretion participate in the defense of any such legal action including the retention of outside legal counsel acceptable to Owner. Owner shall pay all reasonable costs and fees that the City may incur, including any in-house attorney fees and costs in defense of this Agreement or the Existing Approvals. Owner's counsel shall be deemed lead counsel and counsel for the City shall avoid any duplication of legal services or other costs or expenses. The Parties shall agree to cooperate in the preparation of any required administtative record in a reasonable and cost efFective manner and shall consult with each other in good faith to ensure that unnecessary costs are not incuned in defending against any legal action or challenge. Owner may choose to not defend against such legal action or terminate a defense after that defense has been initiated. If Owner declines to defend against any legal action or challenge as hereinabove provided, the City may, in its complete discretion, continue in such defense but shall do so at its sole cost and expense. The provisions of this Section shall not be bindiiig on Owner in the event the liability relates to the negligence or willful misconduct of the City, its o�cers, agents, employees and independent contractors. 6. MORTGAGEE PROTECTION. The Parties hereto agree that tlus Agreement shall not prevent or limit Owner, in a.ny manner, at Owner's sole discretion, froin encumbering the Propei-�y or any portion thereof or any 1/24/14 10159.2 #103590 vll 1 g improvement thereon by any mortgage, deed of trust or other security device securing financing with respect to the Property. City acicnowledges 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 with representatives of such lenders to negotiate in good faith any such request for inteipretation 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 Ue 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 specifed herein for giving notices, shall be entitled to receive written notification from City or any default by Owner in the performance of Owners' obligations under this Agreement. (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 iiotice 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 ctue period allowed such Pa.i-ty 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 �ake 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 any obligation or duty uiider this Agreement to perform any of Owner's obligations or other affirmative covenants of Owner hereunder, or to guarantee such perfoi7nance; provided, however, that to the extent that any covenant to be performed by Owner is a condition precedent to the perforxnance of a covenant by City, the perfoi-�nance 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 2.4 of this Agreement. 7. MISCELLANEOUS PROVISIONS. 7.1 Recordation of A�reement. Tlus Agreement and aily amendment 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. 7.2 Entire A�reement. This Agreement sets forth and contains the entire l.uiderstandin� and agreement of the Parties, and there are no oral or written representatioiis, understandings, or ancillary covenants, undertakings or agreements which are not contained or expressly refei-�ed to hereiiz. No testiinony or evidence of any such representations, 1/24/14 10159.2 #103590 v l l �9 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. 7.3 Severability. If any terms,provisions, covenants or conditions 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 � provisions of Development of the Property set forth in Section 3 and the Public Benefits set forth in Recital G of this Agreement, including the payment of the fees set forth therein, axe essential elements of this Agreement and City and Owner would not have entered into this Agreement but for such provisions and if determined to be invalid, void or unenforceable, this entue Agreement shall be null and void and of no force and effect whatsoever. 7.4 Interuretation and Governin� Law. This Agreement and any dispute arising hereunder shall be governed and interpreted in accordance with the laws of the State of California. This Agreement shall be consh-ued 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 by interpreting this Agreement, all Parties having been represented by counsel in the negotiation and preparation hereof. 7.5 Section Headin�s. All section headings and subheadings are inserted for convenience only and shall not affect any construction or interpretation of this Agreement. 7.6 Sin�ular and Plural. As used herein, the singular of any word includes the plural. 7.7 Time of Essence. Time is of the essence in the performance of the provisions of this Agreement as to which time is an element. 7.8 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 failuue by a Party to exercise its rights upon the default of the other Party, shall not constitute a waiver of such Pai-ly's right to iiisist and demand stricf compliance by the other Party with the terms of this Agreement thereafter. 7.9 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 a�iy provision of this Agreement. 7.10 Force Majeure. Neither Pariy shall be deemed to be in default where failure or delay in performance of any of its obligations �.uider this Agreeinent is caused by floods, earthquakes, other Acts of God, fires, wars, riots or siinilar hostilities, strikes and other labor difficulties beyond tlie Party's control (including the Party's employment force), govenunent regulations, coul-� actions (such as restraiiung orders or injunctions), or other causes of 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 inay be extended by the written agreement of the Parties for the period of time that such events prevented such performance, 1/24/14 10159.2 �#103590 vll 2� provided that the terms of this Agreement shall not be extended under any circumstances for more than five (5)years. 7.11 Mutual Covenants. The covena�its contained herein are mutual covenants and also constitute conditions to the concunent or subsequent performance by the Party benefited thereby of the covenants to be performed by such benefited Party. 7.12 Successors in Interest. The burdens of this Agreement shall be buiding 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 constitutes covenants running with the land. Each covenant to do or refrain from doulg 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 eaeh successor in interest during ownership of the Property or any portion thereof. 7.13 Counterparts. This Agreement may be executed by the Parties in counterpai-ts, which counterparts shall be construed together and have the same effect as if all of the Parties had executed the same instrument. 7.14 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. 7.15 Project as a Private Undertakin�. 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 Agreeinent. No partnership,joint venture or other association of any kind is foimed 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. 7.16 Further Actions and Instruments. Each of the Parties shall cooperate with and provide reasonable assistance to the other to tlie extent conteinplated 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, witli acknowledgment or affidavit if reasonably required, and file or record such required instruments and writings and take any actions as may be reasonaUly necessary under the teims of this Agreement to cany out the intent and to fulfill the provisions of tlus Agreement or to evidence or consumnzate the transactions contemplated by this Agreement. 1/24/14 10159.2 �io3s90�ii 21 7.17 Authority to Execute. The person 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 or warrants and represents that he she/they has/have the authority to bind Owner to the performance of its obligations hereunder. 7.18 Cooperation. City agrees that it shall accept for processing and use its best efforts to expedite processing of all applications, provided they are in a,proper form and acceptable for required processing, for discretionary permits, tract or parcel maps, or other land use entitlements for development of the Project in accordance with the provisions of this Agreement. Owner shall, in a timely manner, provide the City with all documents, plans and other information necessaiy for the City to process and expedite application. City shall cooperate with Owner in providing expeditious review of any such applications, permits or land use entitlements and, upon request and payment of any costs andJor extra fees associated therewith by Owner, City shall assign such review to Project planner(s), building inspector(s), other staff personnel andlor contract planning or engineering consultants as required to insure the review, processing and completion of the Project plan check and issuance of permits in a timely manner. 7.19 Exhibits; Recitals. All Exhibits refened to herein and attached hereto and all recitals are incorporated to be an operative part of this Agreement. IN WITNESS WHEREOF, the Parties have each executed this Agreement on the date first vv�itten above. CITY OF ORA.NGE By: Teresa Smith, Mayor ATTEST: - Mary E. Murphy, City Clerk APPROVED AS TO FORM: Wayne W. Winthers, City Attorney OWNER: JMI PROPERTIES/SANTIAGO PAR.TNERS, LLC, a California limited liabiliiy company 1/24/14 10159.2 �103590 v 11 22 By: Milan REI X, LLC, a California limited liability company Its Managing Member By: Tivoli Capital, Inc., a California corporation Its Managing Member By: Title: All szgnatures to be acknowledged by a Public Notary 1/24/14 10159.2 �103590 vll 23 STATE OF CALIFORNIA ) ) ss COUNTY OF ORANGE ) On , before me, � , a Notary Public, personally appeared , who proved to me on the basis of satisfactory evidence to be the person(s) whose iiame(s) is/are subscribed to the within instrument, and acknowledged to me that he/she/they executed the same in lus/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. Notar Public STATE OF CALIFORNIA ) � ) ss COUNTY OF ORANGE ) On , before ine, ' , a Notary Public, personally appeaxed ; 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 ackiiowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/theu 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 PERJLTRY under the laws of the State of Califoinia that the foregoing paragraph is true and correct. WITNESS my hand and off cial seal. 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A�S�E��R'S�P�4�C�L P�fa.: �7�-749-7s • 1/24/14 101592 r�103590 vll A-9 EXHIBIT B MAP OF THE PROPERTY �+ -- __ , — - - 3 ; � s—�F : �, — � — r j � - ;� ,� �`; '+ t�u-i .��.� ��b , 4 a . t� r a ��x � � ' .-_ r..� � � q�k� � f , �p� t ;. � F .� . A ; . .. [" �' � .,. rJ LF�'S!t�? ��:r;, %Z' �. . ' �..d fi.4 ? F ! � . l ;''; i s ir '�'a^�' r��t ��' �js3�} GS i ta ��e�y � .„t s �, � �a ,,� Ra ' �egend y�t'i'.� �f a34� y ��-:L.,s t a,�;�,�r�l v^'g..�'q�: �} {� �,.�.�,��,�yr�,.t�t 'K�,� �a�-'j�� s . �`'� � �� ; � ��tt��. �� ; ��{7��" y 5.�1 �,� 'Lrt� r ^fii'#� � .: LDR Low Densily Res�dentlal �+��i • �� :��'�t��; T A "ar. e �' '.s � '� �� S T � �ti• „ x•.::; I k.. � , a �r�°'.� �,„�.�y T.��p- � _ �'r`?1 p y� �4:'��„ �n�'`� �`�1'�r 9 `� 3} # � � -'-'�-i.- f'�,s u -: �"H .� �:'-� �X--�-P� yt E t , I�, � MediumDensityResidential f .�.��} "� �,��'o�� f� '�1�. ��', ��.�r��i'��1��f��"j'�* h l�� ,;�% ' �: e,��-�i��" � ��„2�ry-[�u'A�;� s �*i,� . g# . y� #fi b ��(''� 1 j_.� {dz � i�� t.sW. '1 �5��,. 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'� �,,�rs y,�`��3��`,�.#,. � � �4 -r. � lanning LDR .s '�� *�,��;.��a,,. ft ��.�t�� t�°' _ «.�Are �.�� 34Ac.Gross "'¢�.`:�;:' �F '`A«[ } ,., `3��,,,�,�.�n�+,�,�i L F' �, �OS`P� Qflc) � �..`.`.,�,�`;:.i; t�p"�,.`"�`'``�t,;�' �=t'�,�.�''�''`'- � �, a : � 0 A- Gros ��, -�+ �!`". 9��,�: �:_''"' ,�. t'! "g�t4 `3.��''*t�i` U< �"�i�i ':� �"��L "�i",�r ��+•r �".^ �.* _ . • � .,1.. _ ��;.,�,,' �• k-� `r� �,°�,,, ;r?� J t -.'�"�`� '' r��,p` �z��°t`` � o'r� - '�.. 4' � ��'p'� ��-r-.u�.�.,`. � � �i s=, '�* �_ ��. .y -,`" d —' � `_ ��+s'�i'-�-� .1'P� �.� 'x . l 5n 4'.K„�I•. „ J� �t ' O a! ,{y,� t I.. •� 1 E.1 '!:'tL`�. . , � � �'r�' �, t .: r �, `; �� ,I`C7'+�`� a'S3�-�r a � �� .��V' t`i � . .�� 7, `�` ,,� ..��q � «....�.,��,. �,�y.:.."� j .�+:�In�.r/� ,��r� _\n�s �S 1§�., � ±,`�- � e "� , :J��,'�`a o �fd�-�;1 �,"�y.. 4 a,'��°� i�s ,� � k f � .,a v �y �: ?, ( i �C gT'� " � � �''�� ' ,,f;� � �^'� � ��I� �,,._. 1�'� ,�' j�Cy-'.� � � '.�' ,��'�� y'��'r�c ��,w'� ..� ,Y�l. � ��.�� <r � �+! ;>..�+ , -. �y ,"s '� �C b•� �„_ s y.�f .: S? l, � )'��. y �. s- ac,:: 1_; S,� tw Jr.�,��r' l` l�,'�.' gJL � �.7��+� * }�,��- �t _ f �4t� i, lY�` `�,� ; � �}� � � • . 1 : � �',� �,�►��!� -� .�'„�. '=Tj.�7t,�` �!� ,�2,':�' .�,;/'�' �5 �;t �'` `�'�� b y� �� , +� � �1 � �f �`,y . �. �.�� :�yk l '�'�� a� -� _ $, _ � . �"' Y z�;:� �e e � �r '"�i� '" �'C.k�'�-+,�,� � a�. �`�'�� i�� m-; '�"�� '� : -Qt�_ .a �{,�� a � `�,, . � � i � '�� wy �`'"'f�,�„ST �,,�� r.:' ��.�i. .di,� .. . . . �-*'� �� # ..�-..�4 ,ds' �aa„� r _Y=Y , ..�. ��'� ',, -". 3$�.�� ., r ;1 # �� *,�t , -y' �i'1. ��4,114 { �� - - >.... •, ��' x�,> t ,� .:':�.�,`?t� -'�!""'�=� �� .t�`$' '��,, ��3'��''I r i', X..,.r 3 t�. '�`ar��- � � .iht_� +C�. 1/24/14 10159.2 #103590 vll B-1 EXHIBIT C LAND USE ENTITLEMENTS . The following approvals are required by the City of Orange (the lead agency) in order to implement and develop the proposed Project: (1) General Plan Amendment, (2) Change of Zone, (3) Specific Plan, (4)Paxcel Map, (5)Tentative Tract Map, (6)Major Site Plan Review; (7)Environmental Impact Report and (8) Developinent Agreement. A Major Site Plan would follow these actions. General Plan Amendment The City of Orange General Plan Land Use Element Map presently designates the Property as R-A(Resource Area) and LDR(Low Density Residential). A General Plan Amendment will: • Change the City's General Plan Designation for the Property from Resource Area (RA) to Low Density Residential (LDR 2.1-6 Du1Ac), Medium Density Residential(MDR 15-24 Du/Ac), Open Space Park(OS-P) and Open Space (OS); and froin Low Density Residential (LDR2-6 Du/Ac)to Open Space(OS). • Change the City's General Plan to remove portions of the Properiy from the 1975 East Orange General Plan (approximately 56.45 acres) and Orange Park Acres Plan(approximately 40.3 acres). _ Chan�e of Zone Once the Specific Plan is approved by the City, flie Specific Plan will seive as the zoning for the Propei-ty. The zone change will re-designate the Property designation from Sand and Gravel (S-G) and Single Family Residential 8,000 square feet(R-1-8)to Pla�med Community(P-C). � Specific Plan Adoption The Rio Santiago Specific Plan has been prepared to realize the objectives of the proposed Project as defined in this Specific Plan. The Specific Plan will establish standards for perrnitted uses, density, intensity, and other development regulations that will guide development within the Rio Santiago planning areas to be consistent with the proposed General Plan Amendment. The Specific Plan will be adopted by ordinance by the City of Orange City Council. Parcel Map A parcel map shall be recorded on the Property for lease, sale and/or financing puiposes. Tentative Tract Map A tentative tract map to subdivide the Property will be prepared and processed tluough the City in accordance with the requireinents of Title 16, Subdivisions, of tlie City of Orange Municipal Code and in accordance with the Subdivision Map Act of the California Government Code. Maior Site Plan Review for the Project Submittal for Major Site Plan Review shall consist of plans, drawings, illustrations, a.nd any other applicable detailed infoi7nation in order to determine that the proposed project is in � compliance with the provisions of the Rio Santiago Specific Plan. , 1/24/14 10159.2 #103590 vl l C-j Environmental Impact Re�ort An Environmental Impact Report (EIR) will be prepared for the Project following the statutes and guidelines set forth in the California Environmental Quality Act and shall be the primary environmental docuinent for actions associated with the Project. In addition, the EIR shall act as the primary environmental document for disclosure and assessment of potential Project impacts and provide for the formulation and implementation of a mitigation inonitoring program for the proposed Project. The intent of the EIR.is to provide a comprehensive environmental document that will allow the permitting agencies to evaluate the potential environmental impacts from development of the Project. Development A�reement A statutory development agreement shall be entered into between the City and the Owner setting forth vesting of development rights and land use entitlements, identifying Project benefits, improvements and timing of improvements, as well as establishing the responsibilities and rights of both the City and the Owner in carrying out the development of the Rio Santiago Project. The development agreement shall be adopted by an ordinance. 1/24/14 10159.2 � #103590 vl l C-2 EXHIBIT D MARA SRANDMAN ARENA EXPANSION SITE ...._�— . "`�.�.-�---� .��r��i�gQ � �, �.� --.--�,.,_.�,. C��Ya� � . . � _ � ... . ,. . ``'�-��oa� � � ---�._....� �---� � r`�--"`.-�-�----_.� , � . . , 3.7` Acre� � 3.9� Acre� � s f� t I�ilar� Brandmar� �xisting M�ra � � Arena Expans�on � B�randrr�an Arer�a ; � Sit� � . , � � � � , f , ' _._..,�..�:_� ,�,,,,._ �.- -,.�.,,`"_w.�.�-�-� � -��_~ .�..__._....�' 1/24/14 10159.2 #io�s90�ii D-1