ORD-40-88 GOVERNING THE PROCESSING AND APPROVAL OF DEVELOPMENT AGREEMENTSORDINANCE NO. 40-
88 AN ORDINANCE OF THE CITY COUNCIL OF
THE CITY OF ORANGE ADDING CHAPTER 17.98
TO THE ORANGE MUNICIPAL CODE GOVERNING
THE PROCESSING AND APPROVAL OF
DEVELOPMENT
AGREEMENTS.WHEREAS, Government Code Section 65864 et seq.
authorizes cities to enter into a "Development Agreement" with property
for the development of such property;
and WHEREAS, said provisions of the Government Code
authorize cities to establish procedures for consideration of
applications for such development agreements;
and WHEREAS, the adoption of such procedures is in the
public interest and promotes the public health, safety, and
general
welfare.NOW, THEREFORE, BE IT RESOLVED by the city Council of
the City of Orange as
follows:Section
I:Chapter 17.98 is hereby added to the Orange Municipal
Code to read as
follows:
Sections:17.98.
010 17.98.
020 17.98.
030 17.98.
040 17.98.
050 17.98.
060 17.98.
070 17.98.
080 17.98.
090 17.98.
100 17.98.
110 17.98.
120 17.98.
130 17.98.
140 17.98.
150 17.98.
160 17.98.
170 17.98.
180 17.98.
190 17.98.
200 Chapter 17.
98 DEVELOPMENT
AGREEMENTS Authority and
Scope Application
Forms
Fees Qualified
Applicant Proposed
Agreement Filing and Review of
Application Notice of
Intention Manner of Giving
Notice Failure to Receive
Notice Hearing and Recommendation of Planning
commission Recommendation of Redevelopment
Agency Hearing by city
Council Decision by City
Council Approval of Development
Agreement
Recordation Amendment and
Cancellation Periodic
Review Modification or
Termination Irregularity in
Proceedings
17.98.010 Authoritv and Scope. This Chapter is adopted
pursuant to Government Code Section 65864, et seq. as the same
may now exist or hereafter be amended. All development agree-
ments entered into on or after the date of approval of this
Chapter shall be processed in accordance with the provisions of
this Chapter.
17.98.020 Application Forms. The Director of Community
Development shall prescribe the form of each application, notice
and documents provided for or required under this Chapter for the
preparation, processing, and implementation of development agree-
ments. The application shall include as separate documents,
and/or concurrent land use actions and supporting documents by
reference, the following information:
A. Duration of the agreement;
B. A legal description of all property affected by the
agreement;
C. The permitted uses of the property;
D. The density or intensity of use of the property;
E. The maximum height and size of proposed buildings;
F. provisions for reservation of dedication of land for
public purposes;
G. Fiscal impact statement;
H. Phasing and project completion date;
I. Consistency with the General Plan and any applicable
specific plan;
J. site plans, elevations, and all other such pertinent
information concerning and describing the proposed project;
K. Specific public facilities that will be required to
serve the project, and provision for financing such facilities;
L. Name of legal entity with which the City would con-
tract; identity of all joint ventures, limited partners, or
others with whom the developer proposes to associate; and
M. Any additional information and supporting data as the
Director considers necessary to process the application.
17.98.030 Fees. The City Council shall establish, and from
time to time amend by resolution, a schedule of fees imposed for
the filing and processing of each application and document re-
quired by this Chapter. The fee may be waived in whole or in
part by the City Council.
I
lord.
2 -No. 40-
88
l
17.98.040 Qualified Applicant. An application for a
development agreement may only be filed by a person, or the
authorized representative of such a person, who has a legal or
equitable interest in the real property located within the muni-
cipal boundaries of the city, or real property to be annexed to
the City of Orange, for which a development agreement is sought.
written evidence of such title or authority shall accompany the
application.
17.98.050 Proposed Aareement. Each application shall be
accompanied by the development agreement proposed by the appli-
cant consistent in form with the City of Orange Model Development
Agreement attached hereto as Exhibit "A" and incorporated herein
by reference.
17.98.060 Filinq and Review of Application. The Community
Development Department shall endorse on the application the date
it is received. The application and proposed development agree-
ment shall be distributed to an Internal Review Committee com-
prised of representatives of the various City Departments. The
Director and Committee shall review the application and determine
the additional requirements necessary to complete the agreement.
The Director may reject the application if it is not completed in
the manner required by this Chapter. After receiving the re-
quired information, the Director shall prepare a staff report.
The staff report shall analyze the proposed development and shall
contain a recommendation as to whether or not the development
agreement proposed, or in an amended form, would be consistent
with the General Plan or any applicable specific plan, and shall
state what action will be required for compliance with the
California Environmental Quality Act, to the extent that it is
applicable. The staff report and the proposed development agree-
ment shall be distributed to members of the Planning Commission
and the City Council.
17.98.070 Notice of Intention. Upon completion of the
staff report required by section 17.98.060, in addition to any
other notice required by law, the Director shall give notice of
intention to consider adoption of a development agreement. The
notice shall contain:
A. The time and place of the public hearing before the
Planning Commission;
B. A general explanation of the development agreement,
including a general description of the property proposed to be
developed;
C. other information that the Director considers necessary
or desirable.
this
Code
17.98.080 Manner of Givina Notice.
Chapter shall be given in the manner
section 65867.
All notice required by
provided in Government
3 -Ord. No.
40-88
17.98.090 Failure to Receive Notice. The failure to
receive notice by any persons entitled thereto by law or by this
Chapter does not affect the authority of the city to enter into a
development agreement or the validity of any such agreement.
171.98.100 Hearina and Recommendation of Plannina
Commission. The Planning commission shall hold a public hearing
on the proposed development agreement at the time and place
specified in the notice of intention or in accordance with any
continuance thereof granted by the Planning Commission at the
scheduled hearing. The Planning Commission shall make its
recommendation to the City Council in writing within thirty (30)
days of the public hearing. The recommendation shall include
wither or not the proposed development agreement:
A. Is consistent with the objectives, policies, general
land uses, and programs specified in the General Plan and any
applicable specific plan or redevelopment plan.
B. Is compatible with the uses authorized in the district
or planning area in which the real property is located.
C. Is in conformity with the public necessity, public
convenience, general welfare, and good land use practices.
D. will be beneficial to the health, safety, and general
welfare consistent with the policy of the city with respect to
development agreements as provided in section 17.98.200.
E. will adversely affect the orderly development of
property in the City.
17.98.110 Recommendation of Redevelopment Aaencv. Any
proposed development agreement located within a redevelopment
project area in the City shall be reviewed by the Redevelopment
Agency. The Redevelopment Agency shall make its recommendation
to the City Council, based upon whether the proposed agreement
promotes the policies and purposes of the applicable redevelop-
ment plan. The Redevelopment Agency shall not be required to
hold a public hearing, and its recommendation may be made either
in writing or by oral motion and the vote of the majority of the
Agency members present in voting.
17.98.120 Hearina bv Citv Council. After the recommenda-
tion of the Planning Commission (and Redevelopment Agency, if
applicable) or after the expiration of the time period specified
in Section 17.98.100, the Director shall give notice of a public
hearing before the city Council in the manner provided for in
Sections 17.98.070 and 17.98.080.
17.98.130 Decision by citv Council. A. After it completes
the public hearing and considers the recommendation, if any, of
the Planning Commission and, if applicable, the Redevelopment
Agency, the city Council may accept, modify or disapprove the
proposed development agreement. It may, but need not, refer the
4 -
l
matters not previously considered by the Planning commission
during its hearing back to the Planning commission shall not be
required to hold a public hearing on matters referred back to it
by the City Council.
B. The development agreement shall not be approved unless
the city council finds that the development agreement is consis-
tent with the General Plan and any applicable specific plan or
redevelopment plan.
17.98.140 Approval of Development Aqreement. Approval of
the development agreement shall be by the adoption of an
ordinance. Upon the adoption of the ordinance, the city shall
enter into the development agreement by the execution thereof by
the Mayor.
17.98.150 Recordation. A. No later than ten (10) days
after the City enters into the development agreement, the City
Clerk shall record with the County Recorder a copy of the
development agreement.
B. If the parties to the agreement or their successors in
interest amend or cancel the agreement, or if the City terminates
or modifies the agreement for failure of the applicant to comply
in good faith with the terms or conditions of the agreement, the
city Clerk shall cause notice of such action to be recorded with
the County Recorder.
17.98.160 Amendment and Cancellation. A. Either the City
or the applicant or successor in interest thereto may propose an
amendment or cancellation in whole or in part of the development
agreement.
B. The procedure for proposing and approving an amendment
to or cancellation in whole or in part of the development agree-
ment shall be the same as the procedure for entering into a
development agreement.
C. Except as provided for in Section 17.98.180, the
development agreement may only be amended or cancelled in whole
or in part by the mutual consent of all parties to the develop-
ment agreement.
17.98.170 Periodic Review. A. The City Council shall
review the development agreement at least every twelve (12)
months from the date the development agreement is entered into
until expiration of the term of the agreement.
B. The Director shall give the applicant or successor in
interest thereto at least thirty (30) days' advance notice of the
time at which the City Council will review the development agree-
ment.
C. The City Council may refer the matter to the PlanningCommissionforfurtherproceedingsorforareportandrecommenda-
tion.
5 -Ord. No.
40-88
D.
The applicant or successor in interest thereto shall demonstrate
good faith compliance with the terms of the develop-ment
agreement. The burden of proof on this issue shall be on the
applicant or successor in interest.E.
If, as a result of such periodic review, the city council
finds and determines, on the basis of substantial evidence,
that the applicant or successor in interest thereto has not
complied in good faith with the terms or conditions of the development
agreement, the City Council may commence proceedings to
enforce, modify, or terminate the development agreement.17.
98.180 Modification or Termination. A. If, upon a finding
under Section 17.98.170 D, the City Council determines to proceed
with modification or termination of the development agree-ment,
the City Council shall give notice to the applicant or successor
in interest thereto of its intention to do so. The notice
shall contain:1.
The time and place of the hearing;2.
A statement as to whether or not the City Council proposes
to modify or terminate the development agreement;3.
agreement;
Any
proposed modification to the development 4.
necessary
to
of the other
information which the city Council considers to
inform the applicant or successor in interest there-nature
of the hearing.B.
At the time set for the hearing on the modification or termination,
the City Council may refer the matter back to the Planning
Commission for further proceedings or for report and recommendation.
The City Council may take such action as it deems
necessary to protect the interests of the City. The decision
of the city Council shall be final and notice thereof shall
be recorded as prescribed in Section 17.98.150.17.
98.190 Irreaularitv in Proceedinas. No action, in-action,
or recommendation regarding the proposed development agreement
shall be held void or invalid or be set aside by a court
by reason of any error, irregularity, informality, neglect,or
omission as to any matter pertaining to the application,notice,
finding, record, hearing, report, recommendation, or any other
matters of procedure whatsoever unless after an examination of
the entire record the court is of the opinion that the error complained
of was prejudicial and that a different result would have
been probable if the error had not occurred or existed.17.
98.200 Policv. It is the policy of the City of Orange to
enter into development agreements under the provisions of this Chapter
where the development agreement and proposed development project,
in the City's opinion, is of significant public benefit development
not only to the prospective residents of the proposed development,
but to the entire community.6 -
Ord. No. 40-
88
I
I
section II:
A
summary of this Ordinance shall be published and a certi-fied
copy of the full text of this ordinance shall be posted in the
Office of the City Clerk at least five (5) days prior to the city
Council meeting at which this Ordinance is to be adopted. A summary
of this Ordinance shall also be published once within fifteen (
15) days after this Ordinance's passage in the Orange City
News, 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 Council members
voting for and against the Ordinance in accordance with Government
Code Section 36933. This Ordinance shall take effect thirty (
30) days from and after the date of its final passage.j
ADOPTED
this 11th day of ATTEST:
lf~
ci
ty Cle~ tHe ~y of Orange STATE
OF CALIFORNIA )COUNTY
OF ORANGE )CITY
OF ORANGE )I,
MARILYN J. JENSEN, 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
nTh day of SepTP.mher , 1988, and thereafter at the regular
meeting of said City Council duly held on the 11th day
of October , 1988, was duly passed and adopted by the following
vote, to wit:AYES:
COUNCIL MEMBERS: SMITH, BARRERA, COONTZ, MAYOR PEREZ, BEYER NOES:
COUNCIL MEMBERS: NONE ABSENT:
COUNCIL MEMBERS: NONE t0J"..
M~ cr~d~City
Cler of t~ C' 0 Orange 7 -
Ord. No. 40-
88
Exhibit "A"
Space above for Recorder's Use.)
RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO
AND MAIL TAX STATEMENTS TO:
The City of Orange
300 East Chapman Avenue
Orange, CA 92660
Attn: City Clerk
CITY OF ORANGE
MODEL DEVELOPMENT AGREEMENT
Date:
Submitted By:
TABLE OF CONTENTS
RECITALS
AGREEMENT
1. DEFINITIONS:
1.1 Authorizing Ordinance
1.2 City
1.3 Development
1.4 Development Approval(s) or Approval(s)
1.5 Effective Date
1.6 Existing Rules
1.7 General Plan
1.8 Property Owner
1.9 Property
1.l0 Project
1.11 Project Site
1.12 Public Improvements
2. EXHIBITS:
A. Property Description
B. Site Plan'
C. (If Applicable) Specific Planes) Document No.
D. (If Applicable) Subdivision Agreement and Final Map
No.
E.
F.
If Applicable)
If Applicable)
Permit No.
Planned District Ordinance
G. Public Improvements
H. Timing of Development
i)
3. GENERAL PROVISIONS
3.1 Property Subject to the Agreement
3.2 Duration of Agreement
3.3 Assignment
3.4 Amendment or Cancellation of Agreement
3.5 Operating Memoranda
3.6 Unforeseen Circumstances
3.7 Enforcement of Agreement
3.8 Hold Harmless
3.9 Binding Effect of Agreement
3.10 Relationship of Parties
3.11 Notices
4. REGULATION OF DEVELOPMENT
4.1 Rules, Regulations, Official Policies ("Existing
Rules")
4.2 Limitations, Reservations and Exceptions
Reservations of Authority")
4.2.1 Application of Subsequently Enacted Rules,
Regulations and Official Policies
4.2.2 Application of Subsequently Revised or
adopted Fees and/or Improvement Standards
4.2.3 State and Federal Laws, Regulations and
Decisions
a.Notice and Copies
b.Modification Conference
c.Council Hearings
4.2.4 Public Health and Safety
4.2.5 Future Discretionary Reviews
4.2.6 Full Extent of Law
ii )
4.3 Further Assurances to Property Owner Regarding
Exercise of Reservations of Authority
4.3.1
4.3.2
4.3.3
Adoption of General Plan and Preliminary
Development Plans; Further Approvals and
CEQA Compliance
Assurances to Property Owner
Administrative Findings and Burden of Proof
a. City Findings and Determinations
b. Property Owner's Burden of Proof
4.4 Vested Rights
4.5 Referenda and Moratoriums
5. DEVELOPMENT OF THE PROJECT:
5.1 Permitted Uses
5.2 Permitted Density of Development
5.3 Maximum Height and Size of Structures
5.4.1
5.4 Phasing of Construction and Completion of Project
5.4.2
5.4.3
5.4.4
5.4.5
5.4.6
Phasing of Construction
Property Owner
City
Completion of Project
Progress Reports
City to Receive Construction Contract
I Documents
6. PUBLIC IMPROVEMENTS DEVELOPMENT PROGRAM:
6.1 Public Improvement Facilities and Services
6.2 Reservations or Dedications of Land
6.3 Focused Traffic Study
6.4 Payment of Fees
Hi)
6.4.1 Transportation System Improvement Program
6.4.2 Fire Suppression
6.4.3 Capital Facilities
6.4.4 Parks
6.5 Release of Obligation
6.6 Imposition on Other Owners
7. INSURANCE:
7.1 Insurance
7.1.1 Compensation Insurance
7.1.2 Public Liability and Property Damage
Insurance
7.2 Evidence of Insurance
8. ANNUAL REVIEW:
8.1 City and Land Owner Responsibilities
8.2 Information to be Provided Property Owner
8.3 Failure of Periodic Review
9. ESTOPPEL CERTIFICATES
9.1 Estoppel Certificates
10. ENFORCED DELAY, DEFAULT, REMEDIES AND TERMINATION:
10.1 General Provisions
10.1.1 Option to Institute Legal Proceedings or to
Terminate
10.1.2 Notice of Termination
10.1.3 Waiver
10.2 Enforced Delay, Extension of Times of Performance
10.3 Institution of Legal Action
iv)
11. ENCUMBRANCES AND RELEASES ON REAL PROPERTY:
11.1 Discretion to Encumber
11.2 Entitlement to Written Notice of Default
11.3 Property Subject to Pro Rata Claims
11.4 Releases
12. MISCELLANEOUS PROVISIONS:
12.1 Rules of Construction
12.2 Severability
12.3 Entire Agreement, Waivers and Amendments
12.4 Administrative Costs
12.5 Project is a Private Undertaking
12.6 Incorporation of Recitals
12.7 Recording
v)
D EVE LOP MEN T A G R E E MEN T
THIS DEVELOPMENT AGREEMENT (hereinafter referred to as
Agreement") is made and entered into this day of
19 ,by and between the CITY OF ORANGE, a
municipal corporation ("City") and
a ("Property Owner"). City and Property
Owner are hereinafter sometimes referred to individually as a
Party" and collectively as the "Parties".
RECITALS
This Agreement is predicated upon the following facts:
A. To strengthen the public planning process, encourage
private participation in comprehensive planning and reduce the
economic risk of development, the Legislature of the State of
California adopted Government Code Sections 65864 through
65869.5 (the "Development Agreement Statute") which authorized
City to enter into binding development agreements with persons
having legal or equitable interests in real property for the
development of such property and for the purpose of
establishing certainty for both the City and the Property Owner
in the development process.
B. The City of Orange is a general law city located in
the County of Orange, State of California. The City enters
into this Agreement pursuant to the authority granted by the
Development Agreement Statute and the Orange Municipal Code
Sections
C. is the owner in fee or
otherwise retains a legal and/or equitable interest in certain
real property located in the City of Orange, County of Orange,
California, more particularly described in Exhibit "A,"
attached hereto and incorporated herein, which real property is
the subject matter of this Agreement. Said property consists
of acres on property located at/on
in the [northwest]* area of the City of Orange. Property Owner
further represents that any and all other persons holding legal
or equitable interests in the real property are to be bound by
this Agreement.
D. The Parties desire to enter into this Agreement
relating to the Property in conformance with the provisions of
the Government Code, City Municipal Code and applicable City
rules, regulations and official policies to achieve the
development of the Project as permitted under Section 5 of this
Agreement and to provide public services, public uses and urban
infrastructure pursuant to Section 6 herein, all in the
promotion of the health, safety and general welfare of the City
of Orange.
E. Property Owner wishes to develop the Project and the
Public Improvements in exchange for the assurances herein
provided from City that Property Owner will be permitted to
proceed with such development in accordance with the terms and
conditions set forth in this Agreement.
F. City wishes to ensure the provision of
community-oriented public improvements and services and
desires to use this Agreement and the development rights
and entitlements granted herein and pursuant hereto to
achieve enhanced and accelerated levels of said public improvements
and
services.G. It is the intent of the Parties that on execution
of this Agreement Property Owner will be bound to complete
the Public Improvements in the manner and within the time
frames set forth herein and that Property Owner will be entitled
to proceed with the Project subject to necessary
Development Approvals in accordance with this Agreement and with City'
s rules, regulations and official policies governing
permitted uses, density, design, improvement and construction
standards and specifications in force on the effective date of
this
Agreement.H. The Parties acknowledge that the project[, which
will be built in phases of several years,]* may cause
adverse impacts on City's traffic conditions and on levels of
public services and facilities within City and that City may
impose mitigation measures as a condition to issuing
Development Approvals in connection with the development of the Project
in order to alleviate such impacts. In this regard,
Property Owner agrees to provide the Public Improvements as set forth
in Section 6 of this Agreement and shall conduct a focused
traffic study [upon completion of Phase I and prior to commencement
of construction of Phase II of the Project]* in order to
assess any negative impaats on City's traffic
conditions.I. In order for both City and Property Owner to
achieve their respective objectives, it is necessary that each be
as certain as possible that Property Owner will develop and
that City will permit Property Owner to develop the Project and
to construct the Public Improvements as approved by City
within the time frames set forth in this
Agreement.Illustrative
Only
09-25-88 1620n/
J. City and Property Owner will use their best efforts to
assure each other that all applications for and approvals of
grading permits, building permits or other Development
Approvals necessary for Property Owner to develop the Project
in accordance with this Agreement are sought and processed in a
timely manner.
K. On ,19 ,the Planning Commission of the
City of Orange (the "Planning Commission"), after giving notice
pursuant to Government Code Sections 65854, 65854.5 and 65856
held a public hearing on Property Owner's application for this
Agreement. On ,19 ,the City Council of the
City of Orange (the "City Council")";"" after providing public
notice as required by law, similarly held a public hearing to
consider Property Owner's application for this Agreement.
L. The Planning Commission and the City Council have found
that the Agreement is consistent with the Ge~eral Plan and any
applicable specific plan and with all other applicable plans,
rules, regulations and official policies of the City of Orange.
M. In accordance with the requirements of the California
Environmental Quality Act (Public Resources Code
Sections 21000, et seq., (CEQA), appropriate studies, analyses,
reports or documents were prepared and considered by the
Planning Commission and the City Council. The Planning
Commission and the City Council, after making appropriate
findings, certified, by Resolution No. adopted on
1988, a Final Environmental Impact Report for the Project in
compliance with CEQA. (EIR No. dated
19 ,State Clearinghouse No. ).
N. On , 1988, the City Council adopted
Ordinance No. approving this Agreement with Property
Owner. The Ordinance takes effect on , 1988.
1. DEFINITIONS: In this Agreement, unless the context
otherwise requires:
1.1 Authorizing Ordinance: "Authorizing Ordinance" means
Ordinance No. ___ ~pproving this Agreement.
1.2 City: "City" means the City of Orange, a general law
city and municipal corporation duly organized and existing
under the laws of the State of California. The "City" also
means the geographic area within the boundaries of City.
1.3 Development: "Development" or "development" means the
improvement of the Property for purposes of constructing the
structures, improvements and facilities comprising the Project
and the Public Improvements as set forth in this Agreement,
09-
25-88 1620n/2585/
including, without limitation: grading, the construction of
infrastructure and public facilities relating to the Project
and the Public Improvements whether located within or outside
the Property; the construction of any structure; and the
installation of landscaping.
1.4 Development Approval(s) or Approval(s): "Development
Approval(s)" or "Approval(s)" means site specific plans, maps,
permits and other land use entitlements of every kind and
nature approved or granted by City in connection with the
development of the Property, including, but not limited to:
site plans, tentative and final subdivision tract maps, vesting
tentative maps, parcel maps, conditional use permits and
grading, building and other similar permits, maps, plans,
licenses and entitlements.
1.5 Effective Date: "Effective Date" means the date the
Authorizing Ordinance becomes effective.
1.6 Existing Rules:
regulations and official
this Agreement.
Existing Rules" means those rules,
policies as defined in Section 5.4 of
1.7 General Plan:
of City.
General Plan" means the General Plan
1.8 Property Owner" "Property Owner" means
which owns a legal or equitable
in the Property as described in Section 1.9 and
the Property Owner's successors in interest.
a
interest
includes
1.9: "Property" "Property" means the real property which
is the subject of this Agreement, more particularly described
in Exhibit "A".
1.10: "Project" "Project" means the development of the
Property in conformance with the terms and limitations of this
Agreement and as represented by the Site Plan attached hereto
as Exhibit "B" [the Specific Plan, Final Subdivision Map
No. and Permit No. ]* and including all
mitigation measures imposed as part of the CEQA review process
and as conditions to the issuance of Development Approvals.
The Project shall consist of a total of [ square feet
of commercial office and ancillary uses or residential units]*.
1.11 Public Improvements: "Public Improvements" means
those certain lands, facilities and services to be improved,
constructed, dedicated, conveyed or provided by Property Owner
to the public pursuant to Section 6 of this Agreement and
identified in Exhibit "G".
Illustrative Only
09-
25-88 1620n/2585/
2. EXHIBITS: The following documents are referred to in this
Agreement, and attached hereto and are incorporated herein as
though set forth in full:
Exhibit
Designation Descriptions
Referred
to in Section
A. Property Description
B. Site Plan
C. (If Applicable) Specific
Plan(s) Document No. ____
D. (If Applicable) Subdivision
Agreement and Final Map No.
E.If Applicable)
No.
Permit
F.If Applicable)
District Ordinance
Planned
G. Public Improvements
H. Timing of Development
3. GENERAL PROVISIONS:
3.1 Property Subject to the Agreement: The real property
which is the subject of this Agreement (the "Propertylt) is
approximately ____ acres and is located at/on
in the City and is particularly described
in Exhibit "Alt.
3.2 Duration of Agreement: The term of this Agreement
shall be 10 years, commencing upon the effective date of
Ordinance No. ____ approving this Agreement and authorizing
its execution and shall expire on " unless
otherwise termina~ed, modified or extended by written mutual
agreement pursuant to the terms of this Agreement.
3.3 Assignment: The rights and obligations of Property
Owner under this Agreement may be transferred or assigned,
provided that City's written approval is first obtained and
further provided such transfer or assignment is made as a part
of the transfer, assignment, sale or lease of all or a portion
of the real property. Any such transfer or assignment shall be
subject to the provisions of this Agreement and any attempt to
assign or transfer any right or interest in this Agreement
except in strict compliance with this Section 3.3, shall be
null and void and of no force and effect.
09-
25-88 l620n/2585/
During the term of this Agreement, any such assignee
or transferee agrees to be bound by this Agreement and shall
observe and perform all of the duties and obligations of
Property Owner contained herein as such duties and obligations
pertain to the portion of the real property so transferred or
assigned. Property Owner shall obtain City's prior written
consent by giving to City a notice at least thirty (30) days
prior to any such sale, assignment or transfer. City may
review the financial strength and stability and development
capability and experience of the proposed assignee or
transferee and, after said review City shall not unreasonably
withhold its consent. As provided in Section 3.9 below, the
successors and assigns of Property Owner shall have all of the
same rights, benefits and obligations of Property Owner under
this Agreement with respect to the portion of the Property
which has been transferred or assigned. The Parties agree that
the notice and hearing procedures of Government Code Sections
65864 through 65869.5 shall not apply to the assignment of all
or any portion of this Agreement, which is accomplished in
conformity with this Section 3.3 and with respect to which
City's prior written consent has been obtained.
3.4 Amendment or Cancellation of Agreement: This
Agreement may be amended, or cancelled in whole or in part, by
the mutual consent of the Parties and the adoption of an
ordinance in accordance with Government Code Sections 65867,
65867.5 and 65868, and Orange Municipal Code Section
All amendments to this Agreement must be in writing signed by
the appropriate authorities of City and Property Owner, in a
form suitable for recording in the Office of the Recorder,
County of Orange.
3.5 Operating Memoranda: The Parties acknowledge that
from time to time it may be in the mutual interest of the
Parties that certain details relative to performance be
refined. Therefor, to the extent allowable by law, the Parties
retain a certain degree of flexibility with respect to those
provisions covered in general under this Agreement which do not
relate to the term, permitted uses, density or intensity of
use, height or size of buildings, provisions for reservation
and dedication of ~and, timing of development (except as
provided in Section 5.4.4), conditions, terms, restrictions and
requirements relating to subsequent discretionary actions,
development of public improvements or monetary contributions by
Property Owner or any conditions or covenants relating to the
use of the Property. When and if the Parties find it necessary
or appropriate to make changes or adjustments to such
provisions, they shall effectuate changes or adjustments
through operating memoranda in recordable form approved by the
Parties in writing which reference this Section 3.5. Upon
report to and approval by the City Council, the City Manager or
his designee shall have the authority to approve the operating
09-
25-88 1620n/2585/
memoranda pursuant to this Section on behalf of City.
operating memoranda shall require notice or hearing or
deemed to constitute an amendment to this Agreement.
No
shall be
The term ltthis Agreementlt or "Development Agreementlt
herein shall include any amendment properly approved and
executed pursuant to Section 3.4 and any changes or adjustments
by operating memoranda as set forth in this Section 3.5.
3.6 Unforeseen Circumstances: These provisions provide a
mechanism for the identification of those circumstances which
justify the modification, termination or suspension of this
Agreement. If, as a result of facts, events or circumstances
presently unknown, unforeseeable and which could not have been
known to the Parties to this Agreement, City determines that
the health and safety of City require the modification,
suspension or termination of this Agreement, City shall
a) notify Property Owner in writing of City's determination
and the reasons therefor and all facts upon which such reasons
are based; (b) forward to Property Owner, a minimum of ten (10)
days prior to the hearing, all documents relating to such
determination and reasons therefor; (c) notify Property Owner,
in writing, at least fourteen (14) days prior to the date, the
time and place of the hearing; and (d) hold a hearing on the
determination at which hearing Property Owner shall have the
right to offer witnesses, reports and oral and written
testimony, and further have the right to examine witnesses,
City staff or other persons. The hearing may be continued from
time to time as may be deemed appropriate by City. City shall
have the obligation, based upon clear and convincing evidence,
of establishing that: (i) the circumstances were unknown,
unforeseeable and could not have been known to City; (ii) the
health and safety of the community require the suspension,
modification or termination of this Agreement as opposed to any
other alternative; and (iii) City, to the extent feasible, has
provided Property Owner with an equitable program to reimburse
to Property Owner unused fees, and provided equitable
reimbursement for dedications or improvements not required by
the extent of development as of the date of such suspension,
modification or termination. In the event the City Council
should fail to make such findings then this Agreement shall not
be so terminated, modified or suspended at such time. The
unforeseen circumstances which shall cause the operation of
this provision shall not be the result of changes in state or
federal law. In the event of changes in state or federal law,
the provisions of Section 4.2.3 shall govern.
3.7 Enforcement of Agreement: Subject to revisions,
amendments or cancellation as provided in Sections 3.4, 3.5 or
3.6, this Agreement is enforceable by any Party or its
successors and assigns designated pursuant to Section 3.3,
notwithstanding a change in the applicable general or specific
plans, zoning, subdivision or building regulations adopted by
09-
25-88 l620n/2585/
City which alter or amend the Existing Rules, except as
provided in Section 4.2.
3.8 Hold Harmless: Property Owner agrees to and shall
hold City, its officers, agents, employees and representatives
harmless from liability for damage or claims for damage for
personal injury including death and claims for property damage
which may arise from the direct or indirect operations of the
Property Owner or those of its contractors, subcontractors,
agents, employees or other persons acting on his behalf which
relate to the Project. Property Owner agrees to and shall
defend City and its officers, agents, employees and
representatives from actions and claims for damages caused or
alleged to have been caused by reason of Property Owner's
activities on the Property or otherwise in connection with the
Project.
This hold harmless agreement applies to all damages and
claims for damages suffered or alleged to have been suffered by
reason of the operations referred to in this Section 3.8,
regardless of whether or not City prepared, supplied or
approved plans or specifications, or both, for the Project.
The Property Owner further agrees to indemnify, hold
harmless, pay all costs and provide a defense for City in any
action by a third party challenging the validity, applicability
or interpretation of this Agreement.
3.9 Binding Effect of Agreement: The provisions of this
Agreement shall constitute covenants which shall run with the
land and, subject to the provisions of Section 3.3, the burdens
of this Agreement bind and the benefits of this Agreement inure
to the Parties' successors and assigns. Nothing contained
herein, however, shall be construed to establish on behalf of
any partial assignee or partial transferee (except as may
otherwise be provided by subsequent written agreement between
the Parties) any right to enforce the obligation remaining
between City and Property Owner following an assignment in
accordance with the provisions of Section 3.3.
3.10 Relationship of Parties: It is understood that the
contractual relationship between City and Property Owner is
such that Property Owner is an independent contractor and not
an agent of City.
3.11 Notices: All notices, demands and correspondence
required or provided for under this Agreement shall be in
writing and delivered in person or dispatched by certified
mail, postage prepaid. Notice required to be given to City
shall be addressed as follows:
09-
25-88 1620n/2585/
The City of Orange
300 East Chapman Avenue
Orange, California 92666
Attn: City Manager
With a copy to:
The City of Orange
300 East Chapman Avenue
Orange, California 92666
Attn: City Attorney
Notices required to be given to Property Owner shall be
addressed as follows:
Attention:Project Manager
A Party may change its address by giving notice in writing
to the other Party. Thereafter, notices, demands and other
pertinent correspondence shall be addressed and transmitted to
the new address. Notice shall be deemed given upon personal
delivery or, if mailed, five (5) business days following
deposit in the United States mail.
4. REGULATION OF DEVELOPMENT:
4.1 Rules, Regulations, Official Policies (ltExisting
Rules"): City rules, regulations, ordinances, laws, general
plans, and official policies governing permitted uses, density,
design, improvement, and construction standards and
specifications for development of the Property pursuant to this
Agreement (herein called the ltExisting Ruleslt) shall be those
in force and effect as of the Effective Date. Property Owner
shall prepare and obtain approval by the City of a Final
Development Plan for the development of the Property prior to
filing for any discretionary permits, including subdivision
permits. Upon approval by City, the final Development Plan
shall constitute and become a part of the Existing Rules and
the Property Owner shall comply with the Final Development Plan
and all future Development Approvals as part of the Project.
4.2 Limitations, Reservations and Exceptions
ltReservations of Authoritylt): Notwithstanding anything to the
contrary set forth in Section 4.1 hereinabove, in addition to
the Existing Rules, the following rules, regulations and
official policies adopted by City hereafter or by the state or
federal government as provided in Section 4.3 (collectively
referred to herein as ltReservations of Authoritylt) shall apply
to and govern the development of the Property:
09-
25-88 1620n/2585/
4.2.1 Application of Subsequently Enacted Rules,
Regulations and Official Policies: City may, hereafter, during
the term of this Agreement apply such subsequently enacted or
modified rules, regulations, ordinances, laws, general or
specific plans, and official policies which are not in conflict
with those in effect on the Effective Date and application of
which would not prevent development in accordance with
Section 5.
4.2.2 Application of Subsequently Revised or
Adopted Fees and/or Improvement Standards: City fees,
including without limitation, application fees, processing
fees, utility connection fees, inspection fees, TSIP fees, fire
suppression fees, park fees, and capital facilities fees, and
improvement standards as set forth in City's subdivision
regulations and construction standards and specifications that
are revised during the term of this Agreement shall apply to
the development of the Property pursuant to this Agreement
provided that: (1) such fees, standards and specifications
apply to substantially all public works and/or development
proposals within City and (2) their application to the Property
is prospective only as to applications for building and other
development permits or approvals of tentative subdivision maps
not yet accepted for processing.
4.2.3 State and Federal Laws, Regulations and
Decisions: Existing and future state and federal laws,
regulations and decisions, together with city laws,
regulations, plans, policies, programs and actions, or
inaction, specifically mandated and required by changes in
state or federal laws, regulations or decisions are controlling
shall apply to the development of the Property pursuant to the
following provisions:
a. Notice and Copies: In the event that
existing state or federal laws, regulations or decisions or
such laws, regulations or decisions enacted or adjudicated
after the Effective Date or the action or inaction of any other
affected governmental jurisdiction prevent or preclude
compliance with any provision of this Agreement or require
changes in any Development Approvals or programs or actions of
City, each Party shall provide the other Party with: 1)
written notice of such state or federal restriction; 2) a copy
of such law, regulation or decision, and 3) a statement of
conflict with the provisions of this Agreement or Approvals,
programs or actions and of the proposed course of action of the
Party giving the notice to modify or suspend this Agreement,
Approvals, programs or action as may be necessary to comply
with such state or federal laws, regulations or decisions.
09-
25-88 1620n/2585/
b. Modification Conference: The Parties shall,
within thirty (30) days, meet and confer in good faith in a
reasonable attempt to modify this Agreement, Apprcvals,
programs or actions if necessary to comply with such federal or
state law, regulation or decision.
c. Council Hearings: Regardless of whether the
Parties reach an agreement on the effect of such federal or
state law regulation or decision upon this Agreement,
Approvals, programs or actions, the matter shall be scheduled
for hearing before the City Council. Ten (10) days' written
notice of such hearing shall be given, pursuant to Government
Code Section 65854.5 and Orange Municipal Code Section
The City Council, at such hearing, shall determine the exact
modification or suspension which shall be necessitated by such
federal or state law or regulation. Property Owner, at the
hearing, shall have the right to offer oral and written
testimony. Any modification or suspension shall be taken by
the affirmative vote of not less than a majority of the
authorized voting members of the City Council. Any suspension
or modification may be subject to judicial review in
conformance with Section 10.3 of this Agreement. In the event
of such modification or suspension pursuant to Section 4.2.3,
this Agreement shall remain in full force and effect to the
extent that performance of the remaining provisions would not
be inconsistent with the interest and purposes of this
Agreement.
4.2.4 Public Health and Safety: Rules, regulations and
official policies which are adopted by City, which may be in
conflict with the Existing Rules and the application of which
to the development of the Property is reasonably necessary in
order to protect the public health and safety shall apply to
the development of the Property subject to the provisions of
Section 3.6.
4.2.5 Future Discretionary Reviews: City shall retain
its discretionary powers in reviewing applications for future
Development Approvals not yet granted on the Effective Date,
provided that the reviews be applied in a manner that is
consistent with this Agreement and the Existing Rules and
provided future discretionary approvals or conditions do not
materially interfere with the development of the Project or the
land uses, densities or intensities of use, or other matters
permitted by this Agreement. Except as provided herein, future
discretionary approvals, including, but not limited to,
rezonings, tentative and parcel map approvals, plot plans and
plan development approvals, shall be consistent with the
Existing Rules and the goals identified in applicable plans,
City ordinances, resolutions and policies regulating the use of
09-
25-88 l620n/2585/
land in effect on the Effective Date. City shall not impose
conditions upon future discretionary reviews or approvals which
are inconsistent with this Agreement.
City may, in accordance with the limitations contained in
Public Resources Code Section 21082.2 and as may be authorized
by Existing Rules conduct an environmental review of future
discretionary Approvals in connection with the development of
the Project and/or the Public Improvements. City may, as a
result of such review and as may be authorized by law, impose
additional mitigation measures to mitigate significant adverse
environmental effects which were not identified or considered
mitigated, or found to be infeasible to mitigate, at the time
of approval of plans or permits and the environmental impact
report (EIR No. ___) prepared in connection with the
development of the Property.
4.2.6 Full Extent of Law: The Parties acknowledge and
agree that City is restricted in its authority to limit its
police power by contract and that the foregoing limitations,
reservations and exceptions are intended to reserve to City all
of its police power which cannot be so limited.
Notwithstanding the foregoing, this Agreement shall be
construed, contrary to its stated terms if necessary, to
reserve to City all such power and authority which cannot be
restricted by contract.
4.3 Further Assurances to Property Owner Regarding
Exercise of Reservations of Authority.
4.3.1 Adoption of General Plan and Preliminary
Development Plans; Further Approvals and CEQA Compliance: In
preparing and/or adopting the General Plan, [Preliminary
Development Plans, Specific Plan and Planned
District OrdinanceJ* and this Development Agreement, and in
granting the existing Development Approvals, [including
Subdivision Agreement and Final Map No. , and
Permit No. ]* City considered the health, safety and
welfare of the existing and future residents and populations of
City and prepared in this regard an environmental impact report
ltEIRlt), including,EIR No. dated ,19 ,
State Clearinghouse No. ~s well as traffic impact reports
and other studies.
The Parties acknowledge that the allocation of
development within the Property as part of future Development
Approvals is subject to various considerations pursuant to the
Existing Rules and as set forth in Section 4.2.5. Further,
Parties acknowledge that in certain instances, the development
of the Property may be restricted and adversely affected by
future rules, regulations and official policies adopted by City
as provided in Sections 4.2.1 through 4.2.6.
Illustrative Only
09-
25-88 l620n/2585/
City and Property Owner agree that EIR No. and the
obligations of Property Owner under this Agreement to--
incorporate mitigation measures as part of the Project
constitute full and complete mitigation of any identified
adverse environmental impacts generated by the Project. City
and Property Owner acknowledge that further environmental
studies, analyses, reports and documents may be required in
connection with future Development Approvals as provided in
Section 4.2.5. It is acknowledged that this Agreement
provides assurances to Property Owner with respect to the
Existing Rules which will apply to the development of the
Property and that prior to and as a condition precedent to
construction of any portion of the Project or Public
Improvements, all government permits and approvals shall be
obtained as required by the Existing Rules and the rules and
regulations adopted, in accordance with and as provided in
Section4.2, and all environmental studies, analyses, reports
and other documents shall be prepared and completed therefor
in full and strict compliance with CEQA and other applicable
regulations.
4.3.2 Assurances to Property Owner: The Parties
further acknowledge that the public benefits to be provided by
Property Owner to City pursuant to this Agreement including,
without limitation, the participation by Property Owner in the
accelerated and coordinated completion of the Public
Improvements and the financing and construction thereof are in
consideration for and reliance upon assurances that the
Property can be developed in accordance with the Existing Rules
and the terms and conditions of this Agreement. Accordingly,
while recognizing that the development of the Property may be
affected by exercise of the Reservations of Authority and the
requirement that Property Owner participate in future public
improvements as set forth in Section 6, Property Owner is
concerned that normally the courts extend to local agencies
significant deference in the adoption of land use regulations
which might permit City to attempt to apply inconsistent rules,
regulations, or official policies in the future under the guise
of the Reservations of Authority or the City's authority to
require Property Owner's participation under Section 6.
Accordingly, Property Owner desires assurances that City will
not inequitably further restrict or limit the development of
the Property in conflict with the provisions of this Agreement
except in strict accordance with the Reservations of Authority.
4.3.3 Administrative Findings and Burden of Proof:
a. City Findings and Determinations: As a condition
precedent to adopting any rule, regulation or official policy
or taking any action requiring the action or approval of the
City Council which is in conflict with the Existing Rules,
after providing Property Owner with reasonable notice and an
opportunity to be heard, City shall make specific findings and
09-
25-88 l620n/2585/
determinations as to the basis for applying such rules,
regulations or official policies to the development of the
Property in accordance with Section 4.2.
b. Property Owner's Burden of Proof: As a condition
precedent to any claim by Property Owner that a proposed rule,
regulation or official policy does not comply with the
Reservations of Authority and, therefore, cannot be applied to
and govern the development of the Property (whether in a
judicial proceeding or otherwise), Property Owner shall raise
the claim no later than the time at which application of the
proposed rule, regulation or official policy is considered and
shall present all information then in its possession upon which
it shall rely or present in any judicial proceeding, including,
but not limited to, information regarding Property Owner's
reasonable economic expectations with respect to the completion
of the Project in accordance with the Existing Rules taking
into consideration technical, financing, market and other
factors and, in addition, shall provide at such time any
further information regarding Property Owner's economic
expectations reasonably requested by City. In the event that
the proposed rule, regulation or official policy is of a kind
that is not heard by or appealable to the City Council and
provided that Property Owner is given reasonable prior written
notice, as a condition precedent to any such claim, Property
Owner shall raise the claim and provide the above information
as a protest to the agent or representative of City
promulgating or applying the proposed regulation or official
policy.
4.4 Vested Rights: Property Owner is provided and assured
the vested right to proceed with development of the Property in
accordance with the terms of this Agreement and, subject to the
provisions of Section 4.2, to require that the rules,
regulations and official policies of City applicable to and
governing the development approval process relating to the
Project during the term hereof shall be as provided in Section
4.1.
4.5 Referenda and Moratorium: It is the express intent of
City and Property 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 Public
Improvements or affecting Development Approvals which are
issued by City, subject only to the Reservations of Authority
provided in Section 4.2 and the terms of this Agreement.
09-
25-88 l620n/2585/
5. DEVELOPMENT OF THE PROPERTY:
5.1 Permitted Uses. The Property shall be used and
developed only for [residential, industrial, commercial,
recreational, open space and municipal] purposes as described
in Exhibit ltBlt and more particularly set forth in the [Specific
Plan Tentative/Final Subdivision Map No. , Permit No.
and/or Planned District Ordinance approved by
the City and attached hereto as Exhibit(s)
lt It.]* The Property
may also be used and developed in accordance with future
Development Approvals and as additionally authorized by
amendments, if any, hereafter entered into in accordance with
Section 3.4 herein relating to the amendment of this Agreement.
5.2 Permitted Density of Development: The Property shall
be developed consistent with the density or level of intensity
as set forth in this Agreement and as indicated in Development
Approvals or other regulatory devices with a total maximum of
square feet of building space and approximately
parking stalls or residential units].*
5.3 Maximum Height and Size of Structures: The maximum
height and size of structures to be constructed upon the
Property shall be governed by this Agreement and by Development
Approvals with the maximum height of stories.
5.4 Phasing of Construction and Completion of Project:
5.4.1 Phasing of Construction: The Project will
be developed [in ___ phases as described herein and]* in the
time frames set forth in Exhibit ltHlt. [Phase I will consist of
and as designated on the Site Plan
attached hereto as Exhibit ltBlt. Phase I will have a total of
square feet of building space or residential
units.]* Property Owner agrees to begin construction [of
Phase 1 of the Project]* within () years after the
execution of this Agreement provided that all necessary permits
and approvals are obtained. [It is expected that Phase I will
be completed by ____, but in no event shall Phase I be
completed later than .]*
Phase II of the Project will consist of and
as designated in Exhibit ltClt. Phase II
will have a total of square feet of building space or
residential units. Property Owner agrees to complete
construction of Phase II by , but in any event within
the term of this Agreement. ]*
Illustrative Only
09-
25-88 l620n/2585/
5.4.2 Property Owner: Any construction and
development activity on the Property initiated by Property
Owner shall be phased in the manner in accordance with the time
frames and conditions set forth in Section 5.4.1 through 5.4.7
and in Exhibit ltHlt. Property Owner agrees to exercise due
diligence and submit to City applications for all such
necessary permits and approvals in accordance with applicable
City procedures and Existing Rules.
5.4.3 City: City hereby agrees that it will
accept from Property Owner for processing and review all
development applications for development permits or other
entitlements for the use of the real property in accordance
with this Agreement, provided that said applications are
submitted in accordance with City procedures and Existing
Rules.
5.4.4 Completion of Project: Property Owner
agrees to diligently prosecute to completion the construction
of the Project and to complete construction within the term of
this Agreement subject to possible extensions in accordance
with the provisions herein. Improvements scheduling, dates, or
times of performance by either Party hereto may be subject to
revision from time to time due to factors which cannot be
predicted and which are not within the control of the Parties,
such as market orientation and demand, interest rates and
competition. Any such revision must be mutually agreed to by
the Parties in writing referencing this Section 5.4.4 and in
recordable form. Such revisions are deemed to be within the
framework of this Agreement as presently drafted and executed
and do not constitute amendments requiring new notice and
hearing under local law.
5.4.5 Progress Reports: Property Owner shall make
reports to the City Council in such detail and at such times as
the City Manager of City reasonably requests of the progress of
construction until the Project and the Public Improvements are
complete.
5.4.6 City to Receive Construction Contract
Documents: Property Owner shall furnish City copies of all
Project construction contracts and documents.
6. PUBLIC IMPROVEMENTS DEVELOPMENT PROGRAM:
6.1 Public Improvement Facilities and Services: The
Property Owner and its successors and assigns shall be
financially responsible for and shall construct all public and
quasi-public improvements on or adjacent to the Property
which are necessary to support the development of the Project.
More specifically, the Property Owner and its successors in
interest shall be financially responsible for the design
and construction of the Public Improvements described
in Exhibit ltGlt, attached hereto and incorporated herein.
Property
09-25-88 l620n/
Owner and its successors and assigns further agree to provide
the public improvements, facilities and services as may be
required as mitigation measures pursuant to the CEQA review
process and by future Development Approvals, or studies
prepared as part of the development approval process as
required by this Agreement and the Existing Rules.
6.2 Reservations and Dedications of Land: Property Owner
shall provide additional reservations or dedications of
portions of the Property not identified in Exhibit ltHlt as may,
from time to time, be required by the City in accordance with
or as a part of Development Approvals, traffic and other
required studies, and/or environmental review. All
reservations and dedications shall be without cost to the City
and are to be imposed in accordance with this Agreement and the
EXisting Rules.
6.3 Focused Traffic Study: [After completion of Phase I
of the Project and prior to commencement of construction of
Phase II,]* Property Owner shall conduct a focused traffic
study to identify any adverse impacts on City's traffic
conditions resulting from the Project. Property Owner agrees
to comply with and perform all mitigation measures necessary to
alleviate such adverse impacts as defined pursuant to such
study.
6.4 Payment of Fees: Property Owner agrees to pay City
all fees required by City in connection with the construction
capital facilities and services necessary to serve the
Project. The fees shall be paid to City by Property Owner or
its successors or assigns, at the time required in accordance
with this Agreement and applicable City procedures and Existing
Rules.
6.4.1 Transportation System Improvement Program:
In order to assist City in providing enhanced area-wide
traffic circulation, Property Owner shall pay to City such fees as
the City has established for such purpose in accordance
with Ordinance No. adopted by the City Council
on
19__ Transportation System Improvement Program fees shall
be charged as an amount based on square footage for each
bUilding permit issued for the Project. Said fee shall be
adjusted annually to reflect the percentage of construction
cost increase or decrease as published by the Engineering
News Record Construction Cost Index published on or about the
first day of June of each year (ltE.N.R.
Adjustmentlt).6.4.2 Fire Suppression: In order to assistCityinprovidingfiresuppressionservicesandequipmentto
serve the Project, Property Owner agrees to pay to the City such
fees as the City may establish for such purposes in accordance
with Illustrative
Only
09-25-88 1620n/
the Fire Suppression Facilities Plan established and adopted by
City. City agrees that any fees imposed by City hereunder
shall be determined in accordance with the provision of
Chapter 5 of Title 7 of California Government Code commencing
with Section 66000 et seq. Said fees shall be adjusted
annually in accordance with the E.N.R. Adjustment.
6.4.3 Capital Facilities: In order to assist City
in providing certain capital facilities to serve the Project,
which facilities shall include the Police Facility,
the Orange Library Branch, and the
Community Center, Property Owner agrees to pay to the City such
fees as the City may establish for such purpose in accordance
with the Capital Facilities Fee Program established and adopted
by the City. City agrees that any fees imposed by City
hereunder shall be determined in accordance with the provision
of Chapter 5 of Title 7 of the California Government Code
commencing with Section 66000 et seq. Said fees shall be
adjusted annually in accordance with the E.N.R. Adjustment.
Applicable to residential projects only)
6.4.4 Parks: In order to provide to City funds
for the acquisition and development of park and recreational
sites, Property Owner shall pay to City such fees as the City
has established for such purpose in accordance with Ordinance
No. adopted by the City Council on __, 1988.
Park fees shall be charged as an amount based on the number of
dwelling units for each bUilding permit issued for the
Project. Property Owner may dedicate such property or
facilities in lieu of the payment of Park Fees as may be
required by City in accordance with City's Park Fee Program.
Said fees shall be adjusted annually in accordance with the
E.N.R. Adjustment.
6.5 Release of Obligation: Upon the payment of fees by
Property Owner or its successors in interest, City shall
release the lots to which said fees are applicable from the
obligations of this Agreement. This is to be accomplished by
the City providing a writing consenting to the release of
obligation for said lot or lots to be recorded.
6.6 Imposition on Other Owners: In order to finance
capital facilities described in part of Exhibit ltGlt Citywilluseitsbesteffortstocollectlikeorsimilarfees, to
those which are being paid by Property Owner pursuant to this
Agreement, from other property owners in the area. This will
be done in order that Property Owner will not be placed in an
unfair, disadvantageous or noncompetitive situation.
7. INSURANCE:
7.1 Insurance: Before commencing work pursuant to any
City approved permit on the Project, Property Owner shall
09-
25-88 1620n/2585/
obtain the insurance required under this paragraph and receive
the approval of the City Attorney as to form, amount and
carrier. Property Owner shall maintain the insurance during
the term of this Agreement. The insurance as provided by the
Property Owner and by each contractor and subcontractor
performing work on the Project shall be primary and not
contributing with any coverage maintained by City and shall
name City and its elective and appointive boards, commissions,
officers, agents, employees and representatives as an
additional insureds.
7.1.1 Compensation Insurance: Property Owner
shall maintain workers' compensation insurance for all persons
employed at the site of the Project. Property Owner shall
require each contractor and subcontractor similarly to provide
workers' compensation insurance for their respective
employees. Property Owner agrees to indemnify City for damage
resulting from Property Owner's failure to take out and
maintain such insurance.
7.1.2 Public Liability and Property Damage
Insurance: Property Owner shall maintain public liability
insurance in an amount not less than Dollars
for injuries (including death) to anyone
1) person and subject to the same limit of anyone (1)
occurrence.
7.2 Evidence of Insurance: Property Owner shall furnish
City concurrently with the execution of this Agreement
satisfactory evidence of the insurance required. Property
Owner shall also provide evidence that the carrier is required
to give City at least ten (10) days prior written notice of the
cancellation or reduction in coverage of a policy.
8. ANNUAL REVIEW:
8.1 City and Land Owner Responsibilities: City shall, at
least every twelve (12) months during the term of this
Agreement, review the extent of good faith substantial
compliance by Property Owner with the terms of this Agreement.
Pursuant to Government Code Section 65865.1 and Orange
Municipal Code Section , Property Owner shall have the
duty to demonstrate its good faith compliance with the terms of
this Agreement at such periodic review. Property Owner agrees
to furnish such evidence of good faith compliance as City in
the exercise of its discretion may require. Either Party may
address any requirements of this Agreement during the review.
However, ten (10) days' written notice of any requirement to be
addressed shall be made by the requesting Party. If at time of
review an issue not previously identified in writing is
required to be addressed, the review at the request of either
Party shall be continued to afford sufficient time for analysis
and preparation.
09-
25-88 l620n/2585/
8.2 Information to be Provided Property Owner: City
shall, to such an extent as is practical, deposit in the mail
to Property Owner a copy of staff reports and related exhibits
concerning contract performance a minimum of ten (10) calendar
days prior to any such review or action upon this Agreement by
the Planning Commission or the City Council.
8.3 Failure of Periodic Review: City's failure to review
at least annually Property Owner's compliance with the terms
and conditions of this Agreement shall not constitute or be
asserted by either Party as a breach by the other Party of this
Agreement.
9. ESTOPPEL CERTIFICATES:
9.1 Estoppel Certificates: Either Party may at any time,
and from time to time, deliver written notice to the other
Party requesting the other Party certify in writing that to the
knowledge of the certifying Party:
a) This Agreement is in full force and effect and is a
binding obligation of the Parties.
b) This Agreement has not been amended or modified and,
if so amended, to identify the amendments.
c) No default in the performance of the requesting
party's obligations under this Agreement exist or, if in
default, the nature and amount of any default.
d) Upon completion of the Project and the Public
Improvements in accordance with the terms of this Agreement,
that performance of this Agreement is complete and the
obligations hereunder have been satisfied.
A Party receiving a request hereunder shall execute and
return the certificate within thirty (30) days following
receipt thereof. The City Manager shall have the right to
execute any certificate requested by Property Owner on behalf
of City.
10. ENFORCED DELAY, DEFAULT, REMEDIES AND TERMINATION:
10.1 General Provisions: In the event of default or
breach of this Agreement or of any of its terms or conditions,
the Party alleging such default or breach shall give the
breaching Party not less than thirty (30) days Notice of
Default in writing which may be delivered by certified mail.
The time of notice shall be measured from the date deposited in
the mail, if sent by certified mailing; otherwise, the date of
notice shall be the date notice is received. The Notice of
Default shall specify the nature of the alleged default, and,
where appropriate, the manner and period of time in which said
09-
25-88 l620n/2585/
default may be satisfactorily cured. During any period of
curing, the Party charged shall not be considered in default
for the purposes of termination or institution of legal
proceedings. If the default is cured, then no default shall
exist and the noticing Party shall take no further action.
10.1.1 Option to Institute Legal Proceedings or to
Terminate: After proper notice and the expiration of said cure
period, the noticing Party to this Agreement, at its option,
may institute legal proceedings pursuant to Section 10.3 or
give Notice of Intent to Terminate this Agreement pursuant to
Government Code Section 65868. Following Notice of Intent to
Terminate, the matter shall then be scheduled for consideration
and review by the City Council, within thirty (30) days, in the
manner set forth in Government Code Sections 65865, 65867 and
65868.
10.1.2 Notice of Termination: Following
consideration of the evidence presented before the City
Council, either Party alleging a default by the other Party
may, at its option, give written Notice of Termination of this
Agreement to the other Party by certified mail. Such Notice of
Termination shall be effective, unless superseded or overruled
by the ruling of a court of competent jurisdiction, upon
deposit in the mail of the certified mailing to the defaulting
Party; provided that either Party may seek review by a court of
competent jurisdiction of any purported termination.
10.1.3 Waiver: Failure or delay in giving Notice of
Default pursuant to this Section 10.1.3 shall not constitute a
waiver of any default. Except as otherwise expressly provided
in this Agreement, any failure or delay by the other Party in
asserting any of its rights or remedies as to any default shall
not operate as a waiver of any default or of any such rights or
remedies or deprive such Party of its right to institute and
maintain any actions or proceedings which it may deem necessary
to protect, assert or enforce any such rights or remedies.
10.2 Enforced Delay, Extension of Time of Performance: In
addition to specific provisions of this Agreement, performance
by either Party hereunder shall not be deemed to be in default
where delays or defaults are due to war, insurrection, strikes,
walk-outs, riots, floods, earthquakes, fires, casualties,
acts of God, governmental restrictions imposed or mandated
by governmental entities other than City, enactment of
conflicting state or federal laws or regulations, new or
supplementary environmental regulations, litigation, or similar bases
for excused performance. If written notice of such delay is
given to City within thirty (30) days of the commencement of
such delay, an extension of time for such cause shall be granted
in writing for the period of the enforced delay, or longer as
may
09-25-88 1620n/
be mutually agreed upon. Such an extension shall commence to
run from the time of commencement of cause.
10.3 Institution of Legal Action: In addition to any
other rights or remedies, either Party may institute legal
action to cure, correct or remedy any default, to enforce any
covenants or agreements herein or to enjoin any threatened or
attempted violation thereof; or to obtain any remedies
consistent with the purpose of this Agreement. Such legal
actions must be instituted in the Superior Court of the County
of Orange, State of California, or in the Federal District
Court in the Central District of California.
11. ENCUMBRANCES AND RELEASES ON REAL PROPERTY:
11.1 Discretion to Encumber: The Parties hereto agree
that this Agreement shall not prevent or limit Property Owner,
in any manner, at Property Owner's sole discretion, from
encumbering the Property or any portion of any improvement
thereon by any mortgage, deed of trust or other security device
securing financing with respect to the Property. City
acknowledges that the lenders providing such financing may
require certain modifications and City agrees, upon request,
from time to time, to meet with Property Owner and/or
representatives of such lenders to negotiate in good faith any
such request for modification. City further agrees that it
will not unreasonably withhold its consent to any such
requested modification so long as the modifications do not
materially alter this Agreement.
11.2 Entitlement to Written Notice of Default: The
mortgagee of a mortgage or beneficiary of a deed of trust, and
their successors and assigns, or any mortgage or deed of trust
encumbering the Property, or any part thereof, which mortgagee,
beneficiary, successor or assign has requested notice in
writing received by City, shall be entitled to receive written
notification from City of any default by Property Owner in the
performance of Property Owner's obligations under this
agreement which is not cured within thirty (30) days.
11.3 Propert~ Subject to Pro Rata Claims: Any mortgagee
who comes into possession of the Property, or any part thereof,
pursuant to foreclosure of the mortgage or deed of trust, or
deed in lieu of such foreclosure, shall take the Property, or
part thereof, subject to any pro rata claims for payments or
charges against the Property, or part thereof secured by such
mortgage which accrue prior to the time such mortgagee comes
into possession of the Property, or part thereof.
11.4 Releases: City hereby covenants and agrees that upon
completion of Serrano Avenue and payment of all fees required
under this Agreement with respect to the Property, or any
09-
25-88 l620n/2585/
portion thereof, City shall execute and deliver to County
Recorder appropriate release or releases of further obligations
in form and substance acceptable to the County Recorder or as
may otherwise be necessary to effect such release.
12. MISCELLANEOUS PROVISIONS:
12.1 Rules of Construction: The singular includes the
plural; the masculine gender includes the feminine; ltshalllt is
mandatory, and ltmaylt is permissive.
Any reference to any section of this Agreement cited
without a decimal includes all sections following the cited
section. For example, a reference to Section 6 includes 6.1,
6.2, 6.3, 6.4, 6.4.1, et seq.
If there is more than one (1) signer of this Agreement,
their obligations are joint and several.
The time limits set forth in this Agreement may be extended
by mutual consent of the Parties in accordance with the
procedures for adoption of an agreement.
12.2 Severability: The Parties hereto agree that the
provisions are severable. If any provision of this Agreement
is held invalid, the remainder of this Agreement shall be
effective and shall remain in full force and effect unless
amended or modified by mutual consent of the Parties.
12.3 Entire Agreement, Waivers and Amendments: This
Agreement constitutes the entire understanding and agreement of
the Parties. This Agreement integrates all of the terms and
conditions mentioned herein or incidental hereto, and
supersedes all negotiation or previous agreements between the
Parties with respect to all or any part of the subject matter
hereof. All waivers of the provisions of this Agreement must
be in writing and signed by the appropriate authorities of City
or of Property Owner.
12.4 Administrative Costs: Property Owner agrees that a
reasonable amount ~f the application fees for this Agreement
and the fees imposed pursuant to the provisions set forth
herein may be used by City to offset administrative costs
incurred by City in administering this Agreement.
12.5 Project is a Private Undertaking: It is specifically
understood and agreed to by and between the Parties hereto
that: (1) the Project is a private development; (2) City has
no interest or responsibilities for or duty to third parties
concerning any improvements until such time and only until such
time that City accepts the same pursuant to the provisions of
this Agreement or in connection with the various subdivision
09-
25-88 1620n/2585/
map approvals; (3) Property Owner shall have full power over
and exclusive control of the Property subject only to the
limitations and obligations of Property Owner under this
Agreement; and (4) the contractual relationship between City
and Property Owner is such that Property Owner is an
independent contractor and not an agent of City.
12.6 Incorporation of Recitals: The recitals are
specifically incorporated into this Agreement.
12.7
Agreement
of Orange
effective
Recording: The City Clerk shall cause a copy of this
to be recorded with the Office of the County Recorder
County, California within ten (10) days following the
date of this Agreement.
IN WITNESS WHEREOF, this Agreement has been executed
by the Parties on the day and year first above written, as
authorized by Ordinance No. of the City Council.
ORANGE, a municipal
Dated:By:
ATTEST:
City Clerk
APPROVED AS TO FORM:
City Attorney
a
Property Owner)
By:
Its:
By:
Its:
09-
25-88 1620n/2585/
STATE OF CALIFORNIA )
ss.
COUNTY OF ORANGE )
On this day of , in the year
19__,
before me, the undersigned, a Notary Public in and for
said State, personally appeared
personally known to me (or proved to me on the basis of
satisfactory evidence) to be the person who executed this
instrument as the Mayor of the CITY OF ORANGE and acknowledged
to me that said City executed it.
WITNESS my hand and official seal.
SEAL)
09-
25-88 1620n/
STATE OF CALIFORNIA
ss.
COUNTY OF ORANGE
On , before me, the undersigned, a
Notary Public in and for said State, personally appeared
personally known to me or proved
to me on the basis of satisfactory evidence to be the person
who executed the within instrument as the President, and
personally known to me or proved to
me on the basis of satisfactory evidence to be the person who
executed the within instrument as the Secretary of
IDM Corporation, the Corporation that executed the within
instrument and acknowledged to me that such corporation
executed the within instrument pursuant to its bylaws or a
resolution of its Board of Directors.
WITNESS my hand and official seal.
SEAL)
09-
25-88 1620n/
EXHIBIT ltAlt
Property Description
To Be Inserted]
09-
25-88 1620n/
EXHIBIT ltB"
Site Plan
To Be Inserted]
09-
25-88 1620n/
09-
25-88 1620n/
2585/000
EXHIBIT ltC"Specific Plan,
Document No.To
EXHIBIT "Dlt
Subdivision Agreement and Final Map. No.
To Be Inserted]
09-
25-88 l620n/
09-
25-88 1620n/
2585/000
EXHIBIT ltElt
Permit No.To
09-
25-88 1620n/
2585/000
EXHIBIT ltFlt Planned
District Ordinance To
EXHIBIT ltGlt
Public Improvements
To Be Inserted]
09-
25-88 l620n/
EXHIBIT "H"
Timing of Development
To Be Inserted]
09-
25-88 1620n/