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HomeMy WebLinkAboutORD 08-17 Branch West Apartment Development AgreementORDINANCE NO. 08-17 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF ORANGE APPROVING A DEVELOPMENT AGREEMENT FOR THE BRANCH WEST APARTMENT PROJECT LOCATED AT 1725 WEST KATELLA AVENUE. DEVELOPMENT AGREEMENT NO. 0004-17 APPLICANT: BRANCH WEST WHEREAS, the Applicant filed an application with the City to construct a 94 -unit apartment complex on a 1.1 -acre parcel designated in the City of Orange General Plan Land Use Element as Urban Mixed Use (1.5 -3.0 FAR; 30 -60 du/acre) and the allowable residential development capacity under this designation yields 66 residential units; and WHEREAS, the Land Use Element of the City of Orange General Plan provides for the transfer of development rights between sites in the Urban Mixed Use district for purposes including the creation of additional housing units to serve the community; and WHEREAS, the project site is adjacent to a 0.72 -acre City water well that is also designated Urban Mixed Use in the General Plan, yet will remain in long -term use as a water extraction site that supplies water to the community, but would otherwise have development capacity for 42 dwelling units or 94,090 square feet of non - residential development; and WHEREAS, the Katella Corridor in the vicinity of the project site and its intersection with Struck Avenue is characterized by aging traffic signal hardware and operational components in need of replacement, roadway segments that lack sidewalks, and roadway medians in need of landscape and irrigation refurbishment; and WHEREAS, the transfer of development rights for 28 dwelling units to the project site from the City water well site enables the City to exact public benefits including intersection and signal improvements, sidewalk improvements, and aesthetic enhancements to the Katella corridor streetscape, an important gateway to the City from the boundary shared by the Cities of Orange and Anaheim that also experiences high volumes of pedestrian activity and Orange restaurant patronage associated with sporting and entertainment events that occur in the vicinity; and WHEREAS, the City of Orange General Plan Land Use Element envisions the Katella corridor becoming a pedestrian- oriented, mixed -use urban district, building upon the existing restaurant, entertainment, and business activity in the area, as well as capitalizing on the area's proximity to Angels Stadium, The Honda Center, and Anaheim Regional Intermodal Transportation Center; and WHEREAS, the City of Orange General Plan Urban Design Element recognizes the importance of establishing a positive community image at major gateways into the community from neighboring cities in order to communicate a positive image of Orange with respect to quality of life and economic development; and WHEREAS, the City of Orange General Plan Housing Element recognizes the ongoing long -term demand for increased housing inventory in the community to serve a variety of citizens through providing diversified housing types and costs; and WHEREAS, The applicant has submitted appropriate applications, including Development Agreement No. 0004 -17 for purposes of entering into a Development Agreement with the City; and WHEREAS, the Planning Commission conducted a duly advertised public hearing on September 6, 2017, at which time interested persons had an opportunity to testify either in support of or opposition to the Project. The Planning Commission reviewed and considered the information presented in the Development Agreement, including any written comments received or public testimony received at the public hearing, and recommended that the City Council approve the Zone Change No. 1284 -16, Major Site Plan Review No. 0883 -16, Administrative Adjustment No. 0248 -17, Design Review No. 4652 -16, and the Development Agreement, subject to conditions; and WHEREAS, the City Council conducted a duly advertised public hearing on November 14, 2017, for the purpose of considering Development Agreement No. 0004 -17 and the proposed project. NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF ORANGE DOES ORDAIN AS FOLLOWS: SECTION I Pursuant to OMC section 17.44.130, the City Council finds as follows: The Development Agreement is consistent with the General Plan in that it promotes the development of the proposed project, allowing for the redevelopment of an under- utilized light - industrial property with residential development adjacent to the Stadium Promenade entertainment and restaurant- oriented commercial center, and within close proximity to office and commercial uses, and the Anaheim Regional Intermodal Transportation Center, which initiates the transition of the western Katella corridor to a mixed -use activity hub. In addition, the Development Agreement supports General Plan goals related to the production of new housing, and aesthetic enhancement of major vehicular gateways into the City to promote a positive image of Orange as a place to live, work, and conduct business. SECTION II The Development Agreement for the Branch West development project is approved and adopted as shown in Exhibit "A ", attached hereto and incorporated herein by reference. Ordinance No. 08 -17 SECTION III Mitigated Negative Declaration No. 1853 -16 was prepared to evaluate the physical environmental impacts of the development project in conformance with the provisions of the California Environmental Quality Act (CEQA) per State CEQA Guidelines Section 15070 and in conformance with the Local CEQA Guidelines. The Mitigated Negative Declaration finds that the project will have less than significant impacts to the environment, with the implementation of conditions and mitigation measures. SECTION IV Should any section, subsection, clause, or provision of this Ordinance for any reason be held to be invalid or unconstitutional, such invalidity or unconstitutionality shall not affect the validity or constitutionality of the remaining portions of this Ordinance; it being hereby expressly declared that this Ordinance, and each section, subsection, sentence, clause and phrase hereof would have been prepared, proposed, approved and ratified irrespective of the fact that any one or more sections, subsections, sentences, clauses or phrases be declared invalid or unconstitutional. SECTION V A summary of this ordinance shall be published and a certified copy of the full text of this ordinance shall be posted in the Office of the City Clerk at least 5 days prior to the City Council meeting at which this ordinance is adopted. A summary of this ordinance shall also be published once within 15 days after the ordinances passage in a newspaper of general circulation, published, and circulated in the City of Orange. The City Clerk shall post in the Office of the City Clerk a certified copy of the full text of such adopted ordinance along with the names of those City Councilmembers voting for and against the ordinance in accordance of Government Code Section 36933. This ordinance shall take effect 30 days from and after the date of its final passage. ADOPTED this 12th day of December 2017. 4c Teresa t. Smith, Mayor, City of Orange ATTEST: Mary E. , City Clerk, City ange Ordinance No. 08 -17 STATE OF CALIFORNIA COUNTY OF ORANGE CITY OF ORANGE I, MARY E. MURPHY, City Clerk of the City of Orange, California, do hereby certify that the foregoing Ordinance was introduced at the regular meeting of the City Council held on the 14th day of November 2017, and thereafter at the regular meeting of said City Council duly held on the 12th day of December 2017, was duly passed and adopted by the following vote, to wit: AYES: COUNCILMEMBERS: Alvarez, Smith, Murphy, Nichols NOES: COUNCILMEMBERS: None RECUSED: COUNCILMEMBERS: Whitaker ABSTAIN: COUNCILMEMBERS: None Mary E. , C City6CIer , ange Ordinance No. 08 -17 4 EXHIBIT "A" Beneath this sheet.] RECORDING REQUESTED BY AND WHEN RECORDED MAIL TO: City of Orange 300 E. Chapman Ave. Orange, CA 92866 Attn: City Attorney SPACE ABOVE THIS LINE RESERVED FOR RECORDER'S USE DEVELOPMENT AGREEMENT This Development Agreement ( "Agreement ") is entered into by and between the City of Orange, a municipal corporation of the State of California (the "City "), and Branch West Real Estate Partners, LLC, a California limited liability company ( "Developer "). The City and Developer shall be referred to jointly within this Agreement as the "Parties" and individually as a "Party." RECITALS A. Developer has an equitable interest in property located within the City at 1725 West Katella Avenue (the "Property "). The Property is located in the General Plan's Katella Avenue Corridor Focus Area. It is within an existing development known as the Stadium Promenade, which is dominated by theatre, restaurant, and lodging uses. B. The land use designation of the Stadium Promenade, including the Property, in the Land Use Element of the City's General Plan (the "Land Use Element ") is Urban Mixed -Use. A legal description of the Property is attached as Exhibit A and a site aerial of the Property is attached as Exhibit B. C. The Property is zoned C -R, not having yet been rezoned to Urban Mixed Use to establish consistency with the General Plan's Urban Mixed -Use designation. D. Immediately adjacent to the Property is a water well -site owned by the City (the "Well Site "). The Well Site is depicted on Exhibit B. E. On , 2017, Developer submitted an application to the City (the "Application ") requesting approval of a Zone Change and a Major Site Plan Review to allow the construction of a 94 -unit multifamily residential project on the Property (the "Project "). F. To allow the Project to facilitate specific public purposes set forth in the City's General Plan the "General Plan ") and remain consistent with the density limitations of the General Plan and the City's zoning ordinance, the City has agreed to allow the Application to describe the Project site to include both the Property and the Well Site. G. Although the proposed Zone Change will apply to the Well Site, the Project proposes no physical changes to or development of the Well Site. H. The purpose of this Agreement is to facilitate the goals and policies of the City's General Plan and, in particular, the following: 1. Goal 2.0 of the Land Use Element, which reads as follows: Creche successfid, high quality mixed -use districts consisting of a mix of residential, commercial, office, civic, and common open space land uses, supported bY alternative modes of treinsportation. " 2. Policy 2.4 of the Land Use Element, which reads as follows: Encourage mixed -use projects that contain a variety of compatible uses, and provide necessary supporting public and conununity facilities. " 1. On August 2, 2017, the Design Review Committee recommended approval of Design Review No. 4888 -16 for the Project to the Planning Commission. J. On September 6, 2017, the Planning Commission of the City took the following actions: 1. Recommended to the City Council approval of Mitigated Negative Declaration No. 1853- 16 for the Project. 2. Recommended to the City Council approval of (i) the zone change for the Property and the Well Site, (ii) the Major Site Plan Review, and (iii) this Agreement (the "Project Approvals "). K. On , 2017 (the "Approval Date "), the City Council voted to (i) approve the Zone Change and the Major Site Plan Review and (ii) enter into this Agreement. On that date, the City Council conducted the first reading of the ordinance approving this Agreement (the Adopting Ordinance ") and the first reading of the ordinance approving the Zone Change. L. On 2017, the City Council conducted the second reading of the Adopting Ordinance and formally approved the Adopting Ordinance. On that date, the City Council also conducted the second reading of the ordinance authorizing the Zone Change. M. Under California law, the Adopting Ordinance became effective thirty days after its formal approval by the City Council. That date is , 2017. AGREEMENT The Parties agree as follows: 1. DEFINITIONS. Defined terms that are used more than once within this Agreement are listed in the Glossary following the signature page. 2. EXHIBITS. The following attached exhibits are incorporated as a part of this Agreement: Exhibit A: Legal Description of the Property Exhibit B: Map of the Property Exhibit C: List of Public Improvements Partially Funded by Project 3. TERM OF AGREEMENT. The term of this Agreement starts on the day after the Effective Date and ends ten (10) years after the Effective Date (the "Term "). 3.1 Extensions for Cause. The Term shall be extended for periods equal to the total cumulative time during which: a. A Conflicting Emergency Regulation is applied to the Development; and b. Other delays have arisen which are within the scope of Section 12.8. 4. PUBLIC BENEFITS. The City is entering into this Agreement to facilitate the public purposes and public benefits set forth below: 4.1 Public Purpose: The Establishment of Mixed Use Activity Centers. This Agreement furthers and reinforces the City's commitment to a very specific public purpose identified in and promoted by the City's General Plan. The Land Use Element of the General Plan identifies three mixed -use activity center designations within the City. The designation of these mixed -use areas is intended to encourage creative mixes of commercial retail, office, housing, civic, and entertainment uses at key locations throughout the City. The General Plan policies and goals referenced in Recital H above reflect the General Plan's objective to (i) intensify development of those areas designated as mixed use corridors and (ii) encourage mixed -use development for purposes of promoting convenient and efficient relationships between housing, employment, services, and transit. The General Plan states that the "successful completion of high quality mixed -use projects in Orange will assist the City in accomplishing multiple objectives concerned with housing, circulation, land use, economic vitality, recreation, and the environment." 4.2 Public Purpose: The Katella Mixed -Use Corridor. One of the General Plan's three mixed -use activity designations is "Urban Mixed Use" or "UMIX." The General Plan describes the Urban Mixed Use areas as "Urban, high - intensity, regionally- oriented activity centers that define the character of surrounding areas and serve as gateways to the City," providing "integrated commercial retail, high -rise office, housing, and civic uses" with access to high - frequency transit, such as the nearby Anaheim Regional Transportation Intermodal Center, better known as "ARTIC." The General Plan also states that by maximizing the Stadium Promenade's development potential by including mixed housing and retail uses that complement the current uses on the site, the City could encourage design of a signature development project on West Katella Avenue, serving as a gateway from the Platinum Triangle in Anaheim into the City of Orange. The Project represents the most significant opportunity to date for the City to facilitate the General Plan objective of adding housing to the existing uses within the Stadium Promenade. 4.3 Public Benefits: Public Improvements. Pursuant to this Agreement, the Project will make financial contributions to public improvements which are greater than those which could otherwise be required of the Project on the basis of impacts created by the Project. Specifically, prior to the issuance of building permits for the Project, Developer shall deliver to the City ONE HUNDRED FOURTY THREE THOUSAND DOLLARS and 00 /100 ($143,000.00) to be applied by the City for the completion of those public improvements listed on Exhibit C. In addition to the financial contribution for public improvements, Developer shall pay FIFTY SEVEN THOUSAND DOLLARS and 00 /100, ($57,000.00) representing Developer's fair share contribution for the intersection realignment and related improvements at Katella Avenue and Struck Avenue. 5. DEVELOPMENT OF THE PROJECT. 5.1 Developer's Vested Right. Subject to the Reservations of Authority (see Section 5.4), Developer shall have the vested right to complete the Development to the full extent permitted under the Applicable Rules ( "Developer's Vested Right "). Developer's Vested Right shall accrue and be applicable to the Development on the Effective Date. 5.2 Development Fees. During the Term, City shall not impose upon the Development any Development Fees except those in effect under the Applicable Rules ( "Existing Development Fees "). The only increases in Existing Development Fees which may be applied to Development are those set by automatic escalators in the Applicable Rules. 5.3 Initiatives, Moratoria, and Referenda. As a Subsequent Land Use Regulation, any initiative or moratorium adopted after the Approval Date, no matter how enacted, shall not apply to the Property or the Project without Developer's written consent, unless otherwise ordered by a court of competent jurisdiction. Pursuant to Government Code Section 65867.5(a), however, this Development Agreement is a legislative act subject to referendum. 5.4 Reservations of Authority. The following rights are reserved to the City: a. City's Discretion Under Applicable Rules. In considering applications for a Subsequent Development Approval or Subsequent Land Use Regulation, the City may exercise its regulatory discretion to the extent permitted by the Applicable Rules. Pursuant to Government Code Section 65865.2 however, requirements for subsequent discretionary actions shall not prevent development of the Property for the uses and to the density or intensity of development set forth in the Applicable Rules. b. Conflicting Emergency Regulatimis. The City may adopt emergency rules, regulations, laws, and ordinances within the City's police power that would limit the exercise of Developer's Vested Right ( "Conflicting Emergency Regulations "), provided that the Conflicting Emergency Regulations: Result from a sudden, unexpected emergency declared by the President of the United States, Governor of California, or the Mayor, City Council, or City Manager of the City; Address a clear and imminent danger, with no effective reasonable alternative available that would have a lesser adverse effect on Developer's Vested Right; Do not primarily or disproportionately impact the Project or the Property; and Are based upon findings of necessity established by a preponderance of the evidence at a public hearing. Any action challenging the application of a Conflicting Emergency Regulation to the Property or the Project shall be subject to de novo review by the court for compliance with the provisions of this Section. c. Changes hi Federal or State Law. State or federal laws or regulations enacted after the Effective Date of this Agreement may prevent or preclude compliance with one or more provisions of this Agreement. Upon discovery of such a subsequently enacted federal or state law, City or Owner shall provide the other Party with written notice, a copy of the state or federal law or regulation, and a written explanation of the legal or regulatory conflict created. Within ten (10) days thereafter, City and Developer shall meet and confer in good faith in a reasonable attempt to modify this Agreement, as necessary, to comply with such federal or state law or regulation. In such negotiations, City and Developer agree to preserve the terms of this Agreement and the rights of City and Developer as derived from this Agreement to the maximum feasible extent while resolving the conflict. City agrees to cooperate with Developer in resolving the conflict in a manner which minimizes any financial impact of the conflict upon either Developer or City. City also agrees to process Developer's proposed changes to the Project needed to comply with such federal or state law in an expedited manner and in accordance with City procedures. Any delays caused by such changes in GC 65865.2 provides, among other things, that a "development agreement may include conditions, terms, restrictions, and requirements for subsequent discretionary actions, provided that such conditions, terms, restrictions, and requirements for subsequent discretionary actions shall not prevent development of the land for the uses and to the density or intensity of development set forth in the agreement." state or federal law shall toll the term of this Agreement and the time periods for performance by Developer and City set forth in this Agreement. 5.5 Appeal of Administrative Decisions. Any decision of the Director or a City staff member with respect to the implementation of this Agreement may be appealed to the Planning Commission. Planning Commission decision may be appealed to the City Council. 5.6 Tentative Maps. Any Tentative Map approved for the Project shall comply with the provisions of Government Code Section 66473.7. 6. DEVELOPER DEFAULTS AND REMEDIES. 6.1 Periodic Review. The City shall periodically review Developer's good faith compliance with this Agreement pursuant to Government Code Section 65865.1 ( "GC 65865.1 ") and consistent with the due process considerations set forth in Section 6.2 the "Periodic Review "). 6.2 Due Process Considerations. To assure that Developer's Vested Right cannot be terminated or modified without a fair and equitable Periodic Review or other process' - consistent with GC 65865.1 and general principles of fairness and due process, the following requirements shall apply to Periodic Reviews and any other review of or allegation of noncompliance pertaining to this Agreement, including judicial review: a. Modifications for Noncompliance. The terms of GC 65865.1 allow a local agency to terminate or modify a development agreement if a periodic review of compliance with the terms of the development agreement demonstrates noncompliance by the applicant /developer. The local agency's right to do so is stated in permissive, rather than mandatory, terms: "the local agency may terminate or modify the agreement. ,3 Therefore, as material consideration for entering into this Agreement, the Parties have agreed that, in the event of a finding of noncompliance, the City shall not modify the terms of this Agreement unless the modification has been agreed to in writing by Developer, as provided in Government Code Section 65868. b. Standard of Evidence. GC 65865.1 contains permissive terms which allow a local agency to terminate a development agreement if a periodic review demonstrates, "on the basis of substantial evidence," that there has been noncompliance. The Parties recognize that the loss of Developer's Vested Right upon a showing of "substantial evidence" of noncompliance would be unfair and inequitable. Therefore, as material consideration for entering into this Agreement, the Parties have agreed that any City finding of Developer's noncompliance must be based upon the "preponderance of the evidence," as would be the case with other breach of contract actions under California law. These considerations apply equally to any other process by which this Agreement is terminated or modified. 3 Subsection F of MC 246.14 contains the same permissive provision. Subsection F of MC 246.14 contains the same permissive provision. 6.3 Mortgagee Default Protection. If a Mortgagee requests from the City a copy of any notice of default given to Developer, the City shall provide a copy of that notice to the Mortgagee within ten (10) calendar days after receiving the Mortgagee's request. The Mortgagee shall have the right, but not the obligation, to cure the Default during any cure period allowed Developer under this Agreement. 7. CITY DEFAULTS AND REMEDIES. 7.1 Notice of City Default. After the Effective Date, if Developer believes that the City has failed to honor Developer's Vested Right (a "City Default "), Developer shall submit to the City a written notice of default stating those obligations which Developer alleges have not been performed by City (a "Notice of City Default "). After receiving a Notice of City Default, the City shall promptly commence to cure the identified City Default at the earliest reasonable time after receipt of the Notice of City Default and shall complete the cure within thirty (30) calendar days after receipt of the Notice of City Default, or such longer period as is reasonably necessary to feasibly remedy the City Default. The City shall continuously and diligently pursue the cure until the cure is complete. In no event shall the cure period exceed one hundred twenty (120) calendar days. If the City disputes the existence of a City Default or whether the City has cured the City Default, either Party may seek declaratory relief from a court of law. 8. MODIFICATION, AMENDMENT, CANCELLATION OR TERMINATION. 8.1 Amendment and Cancellation. Notwithstanding any other provision of this Agreement, this Agreement may be amended or canceled, in whole or in part, by mutual written consent of the City and Developer, subject to compliance with Government Code Sections 65867, 65867.5, and 65868. 8.2 Minor Changes. The Director, with the written consent of Developer, may make changes to the Agreement without formal action by the City Council if those changes do not (i) modify the Term or the permitted uses, (ii) increase the density or intensity of uses or the maximum height or size of buildings, or (iii) modify the substantive provisions for reservations or dedication of land ( "Minor Changes "). 9. OTHER LEGAL ACTIONS, REMEDIES, AND INDEMNIFICATION 9.1 Third -Party Actions. If a third -party action (a "Third -Party Action ") is filed against the City with respect to this Agreement for any reason, including, but not limited to, i) attacking, setting aside, voiding, or annulling the approval of this Agreement, (ii) challenging any of the Project's Development Approvals, including the approval and adoption of the Mitigated Negative Declaration, or Subsequent Development Approvals, or (iii) otherwise delaying, impeding, or impairing implementation of the Project, the Parties shall cooperate in the defense of that Third -Party Action. 9.2 Effect on Project. The filing of a Third -Party Action shall not excuse, delay, or stop the Project in any manner, including (i) the processing or approval of Subsequent Development Approvals or (ii) the issuance of ministerial approvals by the City, unless the third party obtains a court order preventing the activity or invalidating this Agreement. The City shall not stipulate to the issuance of any such order without Developer's prior written consent. The parties agree that should Developer proceed he does so at his own risk. 9.3 Indemnification. Developer shall indemnify, defend and hold harmless, the City and any agency or instrumentality thereof, and any of its officers, employees, and agents from any and all claims, actions, or proceedings against the City, or any agency or instrumentality thereof, and any of its officers, employees and agents, to attack, set aside, void, annul, limit or seek monetary damages or attorneys' fees resulting from an approval of the City, or any agency or instrumentality thereof, advisory agency, appeal board or legislative body concerning this Agreement. The City shall promptly notify Developer of any such claim, action, or proceeding and request that Developer defend the same. The City and Developer agree to cooperate in the defense of any such action. Should the City fail to either promptly notify Developer or cooperate fully in the defense of any such action, Developer shall not thereafter be responsible to indemnify, defend, or hold harmless the City, any agency or instrumentality thereof, or any of its officers, employees, or agents. Should Developer fail to indemnify, defend or hold harmless when properly requested to do so, the City may terminate this Agreement pursuant to its terms. 10. NOTICES. All notices, demands, and correspondence required or permitted by this Agreement (collectively, "Notices ") shall be in writing. Notices shall be either personally delivered or sent by registered or certified mail or overnight mail service. Notices shall be deemed received upon personal delivery or on the second business day after registered, certified, or overnight mailing. Notices shall be addressed as follows: zn If to City, to: City of Orange 300 E. Chapman Ave. Orange, CA 92866 Attn: City Manager If to Developer, to: Branch West Real Estate Partners, LLC 4100 MacArthur Boulevard, Suite 250 Newport Beach, CA 92660 Attn: Brad Perozzi With a Co1e• to: Tim Paone Cox, Castle & Nicholson 3121 Michelson Drive Suite 200 Irvine, CA 92612 City or Developer may change its address by giving written Notice to the other Party. Thereafter, Notices shall be addressed and transmitted to the new address. 11. ENCUMBRANCES, ASSIGNMENTS, TRANSFERS, AND RELEASES 11.1 Discretion to Encumber. Developer may, in its sole discretion, encumber some or all of the Property or improvements on the Property with a Mortgage. 11.2 Mortgagee Protection. If a Mortgagee in possession of the Property requests Minor Changes, City shall meet with Developer and the Mortgagee to negotiate in good faith the requested Minor Changes. City will not unreasonably withhold or delay its consent to a requested Minor Change if the Minor Change is consistent with the intent and purposes of this Agreement. The following terms apply to all Mortgages: a. Neither entering into this Agreement nor a breach of this Agreement shall defeat, render invalid, diminish, or impair the lien of any Mortgage. b. Except as otherwise provided within this Agreement, a Mortgagee who takes possession of some or all of the Property shall take the property subject to this Agreement. 11.3 Assignment. If Developer sells or otherwise conveys (an "Assignment ") Developer's interest in the Property, the assignee of that Assignment (the "Assignee ") shall be subject to all provisions of this Agreement. Upon an Assignment, Developer shall have no further obligations under this Agreement. 11.4 City's Consent to Assignment. The City's consent to an Assignment shall not be required. 12. MISCELLANEOUS PROVISIONS. 12.1 Cooperation. The Parties shall cooperate in good faith to assist each other in the performance of the provisions of this Agreement. 12.2 Recordation. The City Clerk shall cause a copy of this Agreement to be recorded against the Property -- with the County Recorder within ten (10) calendar days after the Effective Date. The failure of the City to sign and /or record this Agreement shall not affect the validity of this Agreement. 12.3 Successors and Assigns. This Agreement shall be binding upon and inure to the benefit of the Parties and their respective successors and assigns. 12.4 No Third Party Beneficiaries. No person or entity other than the City and Developer shall have any right of action based upon any provision of this Agreement. 12.5 Entire Agreement. This Agreement represents the entire and final agreement of the Parties with respect to the subject matter of this Agreement. 12.6 Litigation Expenses. In any litigation between the Parties related to this Agreement, each of the Parties shall bear its own attorneys' fees and other expenses incurred in that proceeding. 1.2.7 Waiver. All waivers of performance must be in a writing signed by the Party granting the waiver. Failure by a Party to insist upon the strict performance of any provision of this Agreement shall not be a waiver of future performance of the same or any other provision of this Agreement. 12.8 Delay for Events Beyond the Parties' Control. Performance by either Party of its obligations under this Agreement shall be excused and the Term shall be extended for periods equal to the time during which (i) litigation is pending which challenges any matter, including compliance with any other local, state, or federal law, related to the approval or implementation of the Project or (ii) a Party's performance is delayed by any event beyond the control of that Party. Examples of such events include acts of nature, newly - enacted federal or state laws or regulations, judicial actions such as the issuance of restraining orders and injunctions, riots, strikes, and damage to work in process by reason of fire, mud, rain, floods, earthquake, or other such casualties. With respect to litigation, extensions shall be equal to the time between the filing of the action and the entry of final judgment or dismissal after the conclusion of all appeals and /or the expiration of all time periods during which an appeal could be brought. All extensions under this Section 12.8 shall be cumulative. A Party seeking excuse from performance under this Section shall provide written Notice to the other Party within thirty (30) calendar days after becoming aware of the delay. Either Party may file an action for judicial review of any requested excuse from performance. 12.9 Timing of Development. Because of the California Supreme Court holding in Pardee Construction Co. v. Cite of Camarillo, 37 Cal. 3d 465 (1984), the Parties intend for Developer to have the right to complete the Project in such order, at such rate, and at such times as Developer deems appropriate in its subjective business judgment. 12.10 Time of Essence. Time is of the essence in the performance of the provisions of this Agreement as to which time is an element. 12.11 Interpretation. This Agreement has been prepared jointly by both Parties and shall not be interpreted or construed against either Party as the preparer. 12.12 Estoppel Certificate. During the Term, either Party may request from the other an Estoppel Certificate" certifying that: a. This Agreement is unmodified and in full force and effect; or b. There have been specific (date and description) modifications to the Agreement, but it remains in full force and effect as modified. The Estoppel Certificate shall also certify one of the following, if requested: c. There are no known current uncured Defaults; or d. There are specific (date, description, and status) Defaults which exist. Within ten (10) business days after receiving the request, the responding Party shall deliver the completed Estoppel Certificate to the requesting Party. Estoppel Certificates shall provide any other reasonable information requested. A failure to timely deliver an Estoppel Certificate shall create a conclusive presumption that this Agreement is in full force and effect without modification or Default. Developer shall pay City for City's reasonable costs incurred in issuing Estoppel Certificates. 12.13 Governing Law and Venue. This Agreement shall be governed and interpreted in accordance with the laws of the State of California. Venue for any litigation concerning this Agreement shall be in Orange County, California. Developer and City have executed this Agreement on the dates set forth below. CITY" CITY OF ORANGE, a municipal corporation W. Teresa E. Smith Mayor of the City of Orange CONTRACT AND INSURANCE APPROVED BY: ATTEST: Gary A. Sheatz Senior Assistant City Attorney Mary E. Murphy, City Clerk DEVELOPER" BRANCH WEST REAL ESTATE PARTNERS, LLC, a California limited liability company By:_ Name: By:_ Name: z W GLOSSARY OF DEFINED TERMS Within this Agreement, the following defined terms have the meanings set forth below: 1. "Adopting Ordinance" means City Ordinance No. approving this Agreement. 2. "Agreement" means this Development Agreement. 3. "Applicable Rules" means the Existing Land Use Regulations, this Agreement, the Subsequent Land Use Regulations to which Developer has consented in writing, and Subsequent Development Approvals. 4. "Approval Date" means the date of the first reading of the Adopting Ordinance. 5. "Assignee" means the person or entity to which Developer transfers Developer's interest in all, any portion of, or any interest in the Property. 6. "Assignment" means the sale, transfer, or assignment of Developer's rights and obligations under this Agreement in connection with a transfer of Developer's interest in the Property. 7. "City" means the City of Orange, California. 8. "City Council" means the City Council of the City. 9. "Conflicting Emergency Regulations" means those emergency rules, regulations, laws, and ordinances affecting land use that otherwise conflict with this Agreement or limit the exercise of Developer's Vested Right. The Conflicting Emergency Regulations are set forth in Section 5.4b. 10. "Developer" means Branch West Real Estate Partners LLC. 11. "Developer's Vested Right" means Developer's right to complete the Project in accordance with the Applicable Rules, as more specifically set forth in Section 5. 12. "Development Approvals" means all permits, certificates, approvals, and other entitlements approved or issued by the City for construction, marketing, use, occupancy, and /or development of the Property. For the purposes of this Agreement, Development Approvals shall be deemed to include, but are not limited to, the following actions, including revisions, addenda, amendments, and modifications to these actions: This Agreement; Any approvals required by or permitted under the Subdivision Map Act and /or the City's subdivision ordinance; Conditional use permits, use permits, temporary use permits, and site development permits; Variances and waivers of development standards; Grading, excavation, building, and other construction- related permits; Certificates of compliance and /or lot line adjustments; Street, drainage, utility, stormwater, and landscape permits; Encroachment permits; Occupancy permits; and Environmental review documents. 13. "Development Fees" means all taxes, fees, or other exactions charged by the City in connection with the development of land, including the application, processing, approval, and /or issuance of Development Approvals or Land Use Regulations. Development Fees include, but are not limited to, development impact fees imposed pursuant to California's Mitigation Fee Act. Other examples of Development Fees include inspection, plan check, utility capacity, service, connection, library, cultural enrichment, park, flood control, stormwater management, mitigation, and public facilities fees. 14. "Director" means the Director of Community Development of the City. 15. "Effective Date" means the date on which the Adopting Ordinance has become effective as provided by California law. 16. "Estoppel Certificate" means a written statement issued pursuant to Section 12.12. 17. "Exhibit" means an exhibit to this Agreement, unless otherwise expressly stated. 18. "Existing Development Fees" means those Development Fees which had been adopted and were in effect prior to the Approval Date. 19. "Existing Land Use Regulations" means all Land Use Regulations in effect on the Effective Date. However, changes to Land Use Regulations adopted (as opposed to becoming effective) between the Approval Date and the Effective Date shall not be considered part of the Existing Land Use Regulations without Developer's prior written consent. 20. "General Plan' means the General Plan of the City in effect on the Approval Date. 21. "Land Use Regulations" means 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 General Plan and each of its elements, zoning ordinances, subdivision ordinances (but not Tentative or Final Maps, which are Development Approvals), specific plans, and their respective amendments. Land Use Regulations govern, among other things, the permitted use of land, the density or intensity of use, timing and phasing of development, the maximum height and size of buildings, the 5 Because initiatives and moratoria, no matter how enacted, are legislative acts, they are Land Use Regulations. Therefore, any initiative or moratorium adopted after the Approval Date, no matter how enacted, is, for purposes of this Agreement, a Subsequent Land Use Regulation. provisions for reservation or dedication of land for public purposes, and the design,improvement, construction, and initial 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: The conduct or taxation of businesses, professions, and occupations applicable to all businesses, professions, and occupations in the City; Taxes and assessments of general application upon all residents of the City, provided that the taxes and assessments are not imposed for the purpose of taxing the right, power or privilege of developing or improving land (e.g., excise tax) or to directly finance the acquisition or dedication of open space or any other public improvement for which Developer is paying any fee (directly or through an assessment or similar financingdistrict) or providing any improvement pursuant to this Agreement; or 22. "Minor Changes" means any change to the Project that does not modify the Term, alter the permitted uses, increase the density or intensity of uses, or increase the maximum height orsizeofbuildings. 23. "Mortgage" means any mortgage, deed of trust, or other security device recorded against some or all of the Property or improvements to the Property for the purpose of securing adebtorotherobligation. 24. "Mortgagee" means a mortgagee of a Mortgage, a beneficiary under a deed of trust or any other security device, a lender, and their successors and assigns. 25. "Notice" means any notice, demand, or correspondence required or permitted by thisAgreement. 26. "Party" or "Parties" means either City or Developer or both, as determined by the context. 27. "Periodic Review" means the review by the City of Developer's good faith compliance withthetermsofthisAgreementpursuanttoSection6. 28. "Planning Commission" means the Planning Commission of the City. 29. "Project" means Developer's proposed residential development within the Stadium Promenade Area to the extent authorized by the Applicable Rules. 30. "Property" means the real property which is more particularly described in Exhibit A and depicted as the "Property" on Exhibit B. Property does not include the Well Site. 31. "Section" refers to a numbered section of this Agreement, unless specifically stated to refertoanotherdocumentormatter. 32. "Subsequent Development Approvals" means all Development Approvals to which Developer has consented and which are approved, granted, or issued for the Project on oraftertheApprovalDate. 33. "Subsequent Land Use Regulations" means those Land Use Regulations which are both adopted and effective after the Approval Date and which are not included within the definition of Existing Land Use Regulations. "Subsequent Land Use Regulations" includes any Land Use Regulations adopted by moratorium, initiative, City action, or otherwise. 34. "Term" means the term of this Agreement as set forth in Section 3. 35. "Third -Party Action" means any legal action, including appellate review, which is brought with respect to this Agreement by a person or entity other than one of the Parties, including, but not limited to, a governmental entity or official. 36. "Well Site" means the real property owned by the City which is adjacent to the Property. The Well Site is depicted on Exhibit B. EXHIBIT A Property Legal Description LEGAL Dr ,SCRIPTION ALL T14AT CERTAIN LAND SITUATED IN THE STATE OF CALIFORNIA, COUNTY OF ORANGE, CITY OF ORANGE, DESCRIBED AS FOLLOWS: TIIAT PORTION OF LOT 2 OF THE TRAVJS TRACT, AS PEIZ MAP RECORDED INI30OK5, PAGE 120 OF MISCELLANEOUS RECORDS, IN THE OFFICE OF TICOUNTYP ,CORDER OF LOS ANGELES COUNTY, CALIFORNIA DESCRIBED AS FOLLOWS: BEGINNING AT THE SOUTHEAST CORNER OF SAID LOT 2, ALSO BEING THECENTERLINETNTERSFCTI0NOFMAINSTREETANDSTRUCKAVENUE; THENCE,NORTH 89 DEG. 31'50" NEST 1323.95 FEET ALONG TIf', CENTERLINE OF SAIDSTRUCKAVENUETOTHEWESTLING' OF SAID LOT 2; THENCE, NORTH 0 DEG. 29'10" EAST 99.15 FEET ALONG SAID WEST LINE TO THE TRUE POINT OFBEGINNING, BEING A POINT ON THE NON -TANG NT CURVE CONCAVENORTHWESTERLY11AVINGARADIUSOF940.00 FEET, A RADIAL TO SAID POIN'.0BEARSSOUTH16DEG. 07' 28" EAST, SAID CURVE BEING CONCENTTRIC AND 60.00FEETNORTHWESTERLYOFA1000.00 FOOT RADIUS CURVE, DESCRIBED IN DEEDTOTHISCOUNTYOFORANGE, RECORDED NOVEMBER 18,1957 IN BOOK 4106PAGE451OFOFFICIALRECORDS, HAVING A LENGTH. OF 994.19 FEET AND ACENTRALANGLEOF56 :DEG. 5747", SAID LAST MENTIONED CURVE ALSO BEINGTHECENTERLINEOFKATELLAAVENUE; THENCE, CONTINUING ALONG SAIDWESTLINE, NORTH 0 DEG. 29' 10" EAST 310.99 FEET TO A POINT OF THE SOUTHLINEOFTHEWEST5.68 ACRES OF THE NORTH 20.36 ACRES OF SAID LOT 2 ASSHOWNONAMAPFILEDINBOOK9, PAGE 48 OF RECORD OF SURVEYS; THENCEALONGSAIDSOUTHLINE, SOUTH 89 DEG. 30'45'! EAST 171.70 FEET; THENCESOUTH0DEG. 29' 10" WEST 240.6-5 FEET TO A POINT ON SAID CONCENTRICCURVEHAVINGA. RADIUS OF 940.00 FEET, A RADIAL TO SAID POINT BEARSSOUTH27DEG. 9-7'09" EAST; THENCE, ALONG SAID CONCENTRIC CURVESOUTHWESTERLY185.85 FEET THROUGH A CENTRAL ANGLE, OF 11 DEG. 19'41TOT.IIE TRUE POINT OF BEGINNING, EXCEPT THAT PORTION DESCRIBED IN THEDEEDTOTHECITYOFORANGE, RECORDED AUGUST 24, 1.971 IN BOOK 9775, PAGE 10 OF OFF) CIAL RECORDS. APN- 375 - 301 -06 EXHIBIT B Map of the Property 1 .0 N M 0 7 `M N N*oO<} I9u 417.11 r 45 Si VI,r J bdtGE J e 4 4y 3 , \u R a VA r Q rZO' h O o 4 i kOO M M f `!+N N r, y o c reps •S *t* i / NiMO1.--,so ¢a i, N N Q e OO O O a a 0 c--1 e. is, M Z pray j 4J M C W L O G oCQ Al. N lO L tlo r -{4 SYOrt 0 c m D Oo 41 if) n Em a v a 0 p u4. 9 Q N 4 It' `i[ a N dryer o ," z o a+ 4 N t Zs 4 4,42,09,Q v CO tr4 el cl, Q o N y n-ti Or EXHIBIT C List of Public Improvements 4 2'4 , 1 lit 1 i4. i i f 1 I I I i+ 1 c t j r.C i mm .. ...,N 2 P rr 4 5 O a E a,a tt r 1 r VW 4 :64411 el4 I °° IN Mill IgIvi,„ 11 'a I-. ,I *,6 44 p's;t jilt P L n 0 r o OC m ai 1. rr NN /0 M r rp L •D f It 4 4 4 , - ; 1 t 0 in e, .... 0 IIII 4 * i I ; a,,., z 3 e yam 4._.