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Resolution-PC 2016-055RESOLUTION NO. PC2016-055 A RESOLUTION OF THE PLANNING COMMISSION OF THE CITY OF ANAHEIM RECOMMENDING THAT THE CITY COUNCIL APPROVE DEVELOPMENT AGREEMENT NO. 2016- 00003 BY AND BETWEEN THE CITY OF ANAHEIM AND SAGECREST, LLC, A CALIFORNIA LIMITED LIABILITY COMPANY, AND MAKING FINDINGS IN CONNECTION THEREWITH. (DEVELOPMENT AGREEMENT NO. 2016-00003) (DEV2015-00101) WHEREAS, pursuant to the authority set forth in Section 65867 of the California Government Code and the general authority set forth in Section 65864 et seq. of the Government Code (the "Development Agreement Act"), the City's inherent power as a charter city, and the Development Agreement Act implementing procedures adopted by the City in Resolution No. 82R-565 (the "Procedures Resolution"), the City of Anaheim received a verified petition from Sagecrest. LLC, (the "Developer"), requesting that the City consider and approve a Development Agreement in the form of Development Agreement No. 2016-00003 and in conjunction with the Owner's application for the following additional entitlements, which, together with Development Agreement No. 2016-00003, are intended to permit the demolition of the existing buildings and tennis courts on that certain real property located at 415 South Anaheim Hills Road in the City of Anaheim, County of Orange, State of California and generally depicted on the map attached hereto as Exhibit A, and the development of a 60 -unit attached, single-family residential townhome project (the "Project"): (l) General Plan Amendment No. 2015-00505; (2) Reclassification No. 2015-00284; (3) Conditional Use Permit No. 2015-05832; and (4) Tentative Tract Map No. 17959 WHEREAS, General Plan Amendment No. 2015-00505, Reclassification No. 2015- 00284, Conditional Use Permit No. 2016-05832, Tentative Tract Map No. 17959 and Development Agreement No. 2016-00003 shall be referred to herein collectively as the "Proposed Entitlements"; and WHEREAS, pursuant to and in accordance with the provisions of the California Environmental Quality Act (Public Resources Code Section 21000 et seq.; herein referred to as "CEQA"), the State of California Guidelines for the Implementation of the California Environmental Quality Act (commencing with Section 15000 of Title 14 of the California Code of Regulations; herein referred to as the "CEQA Guidelines"), and the City's Local CEQA Procedure Manual, the City is the "lead agency" for the preparation and consideration of environmental documents for the Proposed Project; and -1- PC2016-055 WHEREAS, a draft Mitigated Negative Declaration was prepared in accordance with CEQA, the CEQA Guidelines and the City's Local CEQA Procedure Manual to evaluate the physical environmental impacts of the Proposed Project; and WHEREAS, in conformance with CEQA and the CEQA Guidelines, a Mitigation Monitoring Plan has been prepared for the Proposed Project and includes mitigation measures that are specific to the Proposed Project (herein referred to as "MMP No. 333"). A complete copy of MMP No. 333 is on file and can be viewed in the Planning Services Division of the City; and WHEREAS, on June 13, 2016, the Planning Commission did hold a public hearing, notice of said public hearing having been duly given as required by law and in accordance with the provisions of Chapter 18.60 of the Code, to hear and consider evidence and testimony concerning the contents and sufficiency of the Mitigated Negative Declaration and for and against the Proposed Entitlements and the Project and to investigate and make findings in connection therewith; and WHEREAS, by the adoption of a resolution concurrently with, but prior in time to, the adoption of this Resolution and pursuant to the provisions of CEQA, the State CEQA Guidelines, and the City's Local CEQA Procedure Manual, this Planning Commission found and determined and recommended that the City Council also find and determine that the Proposed Project will have a less than significant impact upon the environment with the implementation of the conditions of approval and the mitigation measures attached to that concurrent Resolution and contained in MMP No. 333 and that the City Council approve and adopt the Mitigated Negative Declaration and MMP No. 333; and WHEREAS, this Planning Commission, after due inspection, investigation and study made by itself and in its behalf, and after due consideration of and based upon all of the testimony, evidence and reports offered at said hearing, does find and determine that the proposed Development Agreement No. 2016-00003, in the form presented at this meeting, meets all of the standards and requirements set forth in the Procedures Resolution, that is: 1. The proposed Development Agreement No. 2016-00003 is consistent with the General Plan and with the goals, policies, programs and objectives specified in the General Plan; 2. The proposed Development Agreement No. 2016-00003 is compatible with the uses authorized in, and the regulations prescribed for, the applicable zoning district(s) in which the Project is and will be located; 3. The proposed Development Agreement No. 2016-00003 is compatible with the orderly development of property in the surrounding area; 4. The proposed Development Agreement No. 2016-00003 is not otherwise detrimental to the health and safety of the citizens of the City of Anaheim; and -2- PC2016-055 5. The proposed Development Agreement No. 2016-00003 constitutes a lawful, present exercise of the City's police power and authority under, is entered into pursuant to, and is in compliance with the City's charter powers, the requirements of the Development Agreement Act and the Procedures Resolution. WHEREAS, this Planning Commission determines that the evidence in the record constitutes substantial evidence to support the actions taken and the findings made in this Resolution, that the facts stated in this Resolution are supported by substantial evidence in the record, including testimony received at the public hearing, the staff presentation, the staff report and all materials in the project files. There is no substantial evidence, nor are there other facts, that detract from the findings made in this Resolution. This Planning Commission expressly declares that it considered all evidence presented and reached these findings after due consideration of all evidence presented to it. NOW, THEREFORE, BE IT RESOLVED that, based upon the aforesaid findings and determinations and based upon a thorough review of proposed Development Agreement No. 2016-00003, the Mitigated Negative Declaration, and the evidence received to date, does hereby approve and recommends that the City Council approve Development Agreement No. 2016- 00003, in the form presented at this meeting, contingent upon and subject to the approval of (1) the other Proposed Entitlements, specifically, General Plan Amendment No. 2015-00505, Reclassification No. 2015-00284, Conditional Use Permit No. 2015-05832 and Tentative Tract Map No. 17959, now pending; (2) the mitigation measures set forth in Mitigation Monitoring Plan No. 333 for the Project; and (3) the conditions of approval set forth as Exhibit A to this Resolution, which are hereby found to be a necessary prerequisite to the proposed use of the Property in order to preserve the health, safety and general welfare of the citizens of the City of Anaheim. Should any such condition, or any part thereof, be declared invalid or unenforceable by the final judgment of any court of competent jurisdiction, then this Resolution, and any approvals herein contained, shall be deemed null and void. THE FOREGOING RESOLUTION was adopted at the Planning Commission meeting of June 13, 2016. ATTEST: SECRETARY, PLANNING COMMISSION OF THE CITY OF ANAHEIM CHAIR, PLANNING COMMISSION OF THE CITY OF ANAHEIM -3- PC2016-055 STATE OF CALIFORNIA ) COUNTY OF ORANGE ) ss. CITY OF ANAHEIM ) I, Eleanor Morris, Secretary of the Planning Commission of the City of Anaheim, do hereby certify that the foregoing resolution was passed and adopted at a meeting of the Planning Commission of the City of Anaheim held on June 13, 2016, by the following vote of the members thereof: AYES: COMMISSIONERS: BOSTWICK, CALDWELL, LIEBERMAN, RAMIREZ, SEYMOUR NOES: COMMISSIONERS: NONE ABSTAIN: COMMISSIONERS: HENNINGER ABSENT: COMMISSIONERS. DALATI IN WITNESS WHEREOF, I have hereunto set my hand this 13th day of June, 2016. SECRETARY, PLANNING COMMISSION OF THE CITY OF ANAHEIM -4- PC2016-055 EXHIBIT "A" DEV NO. 2015-00101 Source: Recorded Tract Maps and/or City GIS. �J F�ec Please note the accuracy is +/- two to five feet. -5- PC2016-055 RECORDING REQUESTED BY AND, WHEN RECORDED, RETURN TO: City Clerk City of Anaheim P.O. Box 3222 Anaheim, California 92805 (SPACE ABOVE FOR RECORDER'S USE) DEVELOPMENT AGREEMENT NO. 2016-00003 BETWEEN CITY OF ANAHEIM AND SAGECREST, LLC DEFINITIONS ....................................................... 2 2. PROPERTY, PURPOSE AND INTENT......................................................................6 2.1 Property Description.......................................................................................... 6 2.2 City Objectives...................................................................................................6 2.3 Developer Objectives.........................................................................................7 2.4 Mutual Objectives..............................................................................................7 3. AGREEMENT AND ASSURANCES..........................................................................7 3.1 Agreement and Assurance on the Part of Developer.........................................7 3.2 Agreement and Assurances on the Part of the City...........................................7 10 3.2.1 Entitlement to Development.................................................................. 7 5.3.3 Termination for Failure to Cure Default .............................................. 3.2.2 Changes in Applicable Rules.................................................................7 3.2.3 Agreed Changes and Other Reserved Powers.......................................8 3.2.4 Subsequent Development.......................................................................8 5.3.5 Damages...............................................................................................11 3.2.5 Effective Development Standards..........................................................8 5.4 3.2.6 Timing and Sequencing of Development..............................................9 3.2.7 Impact Fees; Credit for Developer Installed Facilities ..........................9 3.3 Processing Fees; Extraordinary Processing Consultant Charges and 5.4.2 Specific Performance and Mandamus.................................................12 Environmental Review.......................................................................................9 6. PUBLIC BENEFITS....................................................................................................12 3.3.1 Processing Fees and Charges.................................................................9 6.1 3.3.2 Extraordinary Processing Consultant.....................................................9 3.3.3 Environmental Review.........................................................................10 Recreational Amenities Payment.....................................................................12 4. DEVELOPMENT PLAN.............................................................................................10 4.1 Vested Right to Develop Property...................................................................10 5. ANNUAL REVIEW; REIMBURSEMENT; DEFAULT; SPECIFIC PERFORMANCE........................................................................................................10 5.1 Annual Review.................................................................................................10 5.2 Reimbursement of Costs..................................................................................10 5.3 Default by Developer.......................................................................................10 5.3.1 Default..................................................................................................10 5.3.2 Notice of Default.................................................................................. 10 5.3.3 Termination for Failure to Cure Default .............................................. 11 5.3.4 Specific Perfonnance...........................................................................11 5.3.5 Damages...............................................................................................11 5.4 Default by City.................................................................................................12 5.4.1 Notice of Default..................................................................................12 5.4.2 Specific Performance and Mandamus.................................................12 6. PUBLIC BENEFITS....................................................................................................12 6.1 Increase in Property Taxes...............................................................................12 6.2 Recreational Amenities Payment.....................................................................12 7. GENERAL PROVISIONS..........................................................................................13 7.1 Date Agreement Becomes Effective................................................................13 7.2 Term.................................................................................................................13 7.2.1 Basic Term...........................................................................................13 7.2.2 Early Termination of Agreement.........................................................13 7.2.3 Automatic Termination of Agreement ................................................. 13 7.2.4 Effect of Termination...........................................................................13 7.3 Force Majeure..................................................................................................13 7.4 Applicable Law................................................................................................14 7.5 Amendments....................................................................................................14 7.6 Assignment......................................................................................................14 7.6.1 Right to Assign....................................................................................14 7.7 Mortgage Rights...............................................................................................14 7.7.1 Encumbrances on the Property and this Agreement ............................14 7.7.2 Mortgagee Protection...........................................................................15 7.7.3 Mortgagee Not Obligated....................................................................15 7.7.4 Notice of Default to Mortgagee...........................................................15 7.7.5 Bankruptcy...........................................................................................16 7.7.6 Termination Subject to Mortgagee Rights...........................................16 7.7.7 No Cancellation...................................................................................16 7.7.8 New Agreement Upon Default by Developer......................................16 7.7.9 Separate Agreement.............................................................................17 7.7.10 Material Notices...................................................................................17 7.7.11 Mortgagee Right to Assign..................................................................17 7.8 Covenants.........................................................................................................17 7.9 Implementation................................................................................................17 7.10 Relationship of the Parties...............................................................................18 7.11 Cooperation in the Event of Third Party Litigation.........................................18 7.12 Notices.............................................................................................................18 7.13 Recordation......................................................................................................19 7.14 Developer Hold Harmless................................................................................19 7.15 Successors and Assigns....................................................................................19 7.16 Severability......................................................................................................19 7.17 Waiver..............................................................................................................20 7.18 Third Party Beneficiaries.................................................................................20 7.19 Expedited Processing.......................................................................................20 7.20 Requests for Payment......................................................................................20 7.21 Entire Agreement.............................................................................................20 7.22 Conflict of Laws..............................................................................................20 7.23 Legal Advice; Neutral Interpretation; Headings and Table of Contents .........20 7.24 Counterparts.....................................................................................................21 7.25 Organization and Standing of Developer.........................................................21 DEVELOPMENT AGREEMENT NO. 2016-00003 BY AND BETWEEN THE CITY OF ANAHEIM AND SAGECREST, LLC THIS DEVELOPMENT AGREEMENT NO. 2016-00003 ("Agreement") is made and entered into as of this day of 2016, by and between the CITY OF ANAHEIM, a charter city and a municipal corporation duly organized and existing under the Constitution and the laws of the State of California ("City"), and SAGECREST, LLC, a California limited liability company ("Developer"), pursuant to the authority set forth in Section 65867 of the California Government Code, and the general authority set forth in section 65864 et seq. of the Government Code (the "Development Agreement Act"), the City's inherent power as a charter city, and the Development Agreement Act implementing procedures adopted by the City in Resolution No. 82R-565 (the "Procedures Resolution"). The definitions contained in Section l shall apply to the entire Agreement, including the following RECITALS. RECITALS A. Developer represents that it is under contract to acquire fee title to the Property, and thus has an equitable interest in the Property. Developer has proposed development of the Project, as defined below and depicted on the Site Map Exhibit A to this Agreement). B. The development of the Project by the Developer will provide sixty (60) new townhome dwelling units within the City's "RM -1" Multiple -Family Residential Zone and the Scenic Corridor (SC) Overlay Zone, which will result in certain public benefits to the City; and C. The Project will provide development fees, certain public infrastructure, private parking and other facilities needed to support the Project; and D. Developer, in consideration of the benefits and opportunities provided to Developer by the Existing Approvals and the cooperation and assistance of the City in connection therewith, will provide assurances to the City that the public infrastructure, amenities and design features of the Project are implemented in a timely manner as set forth in the Existing Approvals; and E. In order to provide certainty and render development of the Project more feasible in light of the large capital investment and time necessary to coordinate and implement the Project, Developer requires assurance from the City that the governmental entitlements contained in the Existing Approvals shall, to the extent specified herein, not be amended or supplemented or burdened with fees, burdens and exactions not otherwise permitted by this Agreement; and F. Developer also recognizes and agrees that in extending these benefits to Developer, the City must retain the Reserved Powers; and G. Concurrently with or prior to approval of this Agreement, the City has approved the following other Project Approvals applicable to the Project, which are hereinafter collectively referred to as the "Existing Approvals": (1) General Plan Amendment No. 2015-00505; (2) Reclassification No. 2015-00284; (3) Conditional Use Permit No. 2015-05832; and (4) Tentative Tract Map No. 17959. H. City and Developer desire to enter into this Agreement in order to assure development of the Property in accordance with the Existing Approvals and provide for vesting of same for the Term of the Agreement, and to assure the City of installation of the design features of the Project and public infrastructure in accordance herewith and as described in the Existing Approvals; and 1. On June 13, 2016, the Planning Commission, held a duly noticed public hearing regarding this Agreement and environmental documentation related thereto, and at the conclusion of such hearing, and after consideration of evidence and testimony submitted by City staff, the Developer and all interested parties, adopted a Resolution recommending that the City Council approve this Agreement; and J. The City hereby finds that this Agreement and the Existing Approvals are consistent with the City's General Plan, and the MND satisfies all requirements of the California Environmental Quality Act and the State CEQA Guidelines with respect to this Agreement and the Project; and K. On , 2016, the City Council held a duly noticed public hearing regarding this Agreement and, at the conclusion of the hearing, and after considering the recommendation of the Planning Commission, the evidence and testimony submitted by City staff, the Developer and all other interested parties, introduced Ordinance No. approving this Agreement on , 2016, and adopted Ordinance No. on , 2016 (herein referred to as the "Authorizing Ordinance"). NOW, THEREFORE, in consideration of the promises and mutual promises and covenants herein contained and other valuable consideration, the receipt and legal sufficiency of which are hereby acknowledged, the Parties hereto agree as follows: DEFINITIONS. 1.1 "Affiliate of Developer" or "Affiliate" means a sole proprietorship, limited liability company, partnership, limited partnership, joint venture, trust, unincorporated organization, association, corporation, institution, or any other entity owned and controlled by the Developer. 1.2 "AMC" means the Anaheim Municipal Code. 1.3 "Annual Review" means the annual review process as described in Section 5 of this Agreement. 1.4 "Applicable Rules" means (subject only to the qualifications set forth herein with respect to Fees and excluding the Reserved Powers) the rules, regulations, ordinances and officially adopted plans and policies of the City in force as of the Effective Date, including without limitation, the Existing Approvals. Notwithstanding this Section 1.4 or any other provision of this Agreement (i) all duly adopted codes, regulations, specifications and standards regarding the design and construction of public works facilities, if any, shall be those that are in effect at the time the plans for such public works facilities are being processed for approval and/or under construction, and (ii) except as expressly set forth in this Agreement with respect to Impact Fees and Processing Fees and Charges applicable to the Project, Applicable Rules shall mean and include only those Fees in effect as of the Effective Date. 1.5 "CEQA" means the California Environmental Quality Act (Cal. Public Resources Code sections 21000 et seq.), the State CEQA Guidelines (Cal. Code of Regs., Title 14, section 15000 et seq.) and City CEQA Guidelines. 1.6 "City Agency" means each and every agency, department, board. Commission, authority, employee, and/or official acting under the authority of the City that have permit, entitlement or approval authority or jurisdiction over the Project, including, without limitation, the City Council and the Planning Commission. 1.7 "City Attorney" means the City Attorney of the City. 1.8 "City Council" means the City Council of the City. 1.9 "City Manager" means the City Manager of the City. 1.10 "Conditions of Approval" means those conditions of approval for the Project adopted in connection with the granting of the Existing Approvals. 1.11 "Discretionary Action" means an action which requires the exercise of judgment, deliberation or a decision on the part of the City and/or any City Agency in the process of approving or disapproving a particular activity, as distinguished from an activity which merely requires the City and/or any City Agency to determine whether there has been compliance with statutes, ordinances or regulations. Discretionary Actions shall not include any Ministerial Permits and Approvals. 1.12 "Effective Date" means the effective date of the Authorizing Ordinance. 1.13 "Existing Approvals" means those approvals described in Recital G. 1.14 "Extraordinary Processing Consultant" means a consultant selected by the City to coordinate and expedite processing of applications for all or any Ministerial Permits and Approvals and all or any Discretionary Actions applicable to the Project at the expense of Developer. 1.15 "Fees" means any fees or charges imposed or collected by the City as of the Effective Date other than (i) impact Fees, Processing Fees and Charges and (ii) fees collected and/or imposed by the City for the benefit of public agencies other than the City. 1.16 "Final Map" means the final map for the Project. 1.17 "General Plan" means the General Plan of the City. 1.18 "Impact Fees" means impact fees, linkage fees, exactions, fair share charges or other similar impact fees or charges imposed on and in connection with new development on a city-wide basis by the City pursuant to rules, regulations, ordinances and policies of the City. Impact Fees shall not include Processing Fees and Charges, the Recreational Amenities Payment, taxes or special assessments. 1.19 "Inspections" means all field inspections and reviews by City officials during the course of construction of the Project and the processing of certificates of occupancy (permanent or temporary). 1.20 "Institutional Lender" means any of the following institutions having assets or deposits in the aggregate of not less than One Hundred Million Dollars ($100,000,000): a California chartered bank; a bank created and operated under and pursuant to the laws of the United States of America; an "incorporated admitted insurer" (as that term is used in Section 1100.1 of the California Insurance Code); a "foreign (other state) bank" (as that term is defined in Section 1700(1) of the California Financial Code); a federal savings and loan association (Cal. Fin. Code Section 8600); a commercial finance lender (within the meaning of Sections 2600 et seq. of the California Financial Code); a "foreign (other nation) bank" provided it is licensed to maintain an office in California, is licensed or otherwise authorized by another state to maintain an agency or branch office in that state, or maintains a federal agency or federal branch in any state (Section 1716 of the California Financial Code); a bank holding company or a subsidiary of a bank holding company which is not a bank (Section 3707 of the California Financial Code); a trust company, savings and loan association, insurance company, investment banker; college or university; pension or retirement fund or system, either governmental or private, or any pension or retirement fund or system of which any of the foregoing shall be trustee, provided the same be organized under the laws of the United States or of any state thereof; and a Real Estate Investment Trust, as defined in Section 856 of the Internal Revenue Code of 1986, as amended, provided such trust is listed on either the American Stock Exchange or the New York Stock Exchange. 1.21 ""Legal Description" means the legal description of the Property attached hereto as Exhibit B and incorporated herein by reference. 1.22 "Litigation" means any lawsuit (including a cross -action) filed against the City and/or Developer which challenges the validity, implementation or enforcement of, or seeks any other remedy directly relating to, all or any party of the Existing Approvals or this Agreement. 1.23 "MND" means the Mitigated Negative Declaration Development prepared to evaluate the physical environmental impacts of the Project Number 2015-00101. 1.24 "Ministerial Permits and Approvals" means the nondiscretionary permits, approvals, plans, inspections, certificates, documents and licenses required to be taken, issued or approved by the City in order for Developer to implement, develop and construct the Project and the Mitigation Measures, including without limitation, building permits, and other similar permits and approvals. 1.25 "Mitigation Measures" means those Mitigation Measures set forth in that certain Mitigation Monitoring Plan No. 333 for the Project. 1.26 "Mortgage" means an instrument or instruments securing one or more financings by the Developer with respect to the construction, development, use or operation of the Project, and includes whatever security instruments are used in the locale of the Project, including, without limitation, mortgages, deeds of trust, security deeds, and conditional deeds, as well as financing statements, security agreements and other documents required pursuant to the Uniform Commercial Code. 1.27 "Mortgagee" means one or more Institutional Lenders holding a beneficial interest and secured position under any Mortgage which have notified City, in writing, of its request for notice under the provision of Section 7.7 hereof. California. 1.28 "Official Records" means the Official Records of Orange County, 1.29 "Parties" means collectively the Developer and the City. 1.30 "Party" means any one of the Developer or the City. 1.31 "Plaintiff means any party seeking relief or compensation through Litigation, whether as plaintiff, petitioner, cross-complainant or otherwise. 1.32 "Planning Commission" means the Planning Commission of the City. 1.33 "Planning Director" means the Planning and Building Director of the City. 1.34 "Processing Fees and Charges" means all processing fees and charges required by the City including, but not limited to, fees and charges for land use applications, Project permits, building applications, building permits, grading permits, encroachment permits, tract or parcel maps, lot line adjustments, air right lots, street vacations, certificates of occupancy and other similar permits. Processing Fees and Charges shall not include Impact Fees. 1.35 "Project" means the development on the Property of sixty (60) townhome dwelling units and associated community space, as more specifically described in the Existing Approvals and as shown on the Site Map. 1.36 "Project Architect" means the architect designated by the Developer as responsible for the design and construction supervision of the Project. 1.37 "Property" means that real property Developer is under contract to purchase, which is legally described in Exhibit B hereto. 1.38 "Public Improvements" means the facilities to be improved, constructed and dedicated to (and, upon completion in accordance with this Agreement, accepted by) the City by the Developer. Public Improvements include sidewalks, all public utilities within the streets (such as electricity and water, but excluding any non -municipal utilities), paths in the public right-of-way, off-site intersection improvements (including but not limited to curbs, curb ramps, medians, signaling, traffic controls devices, signage, and striping), and all other improvements delineated on street improvement plans approved by the City Engineer for the Project during the pendency of the Project. 1.39 "Recreational Amenities Payment" means a payment to be made by Developer to the City in the amount of Two Hundred Thousand Dollars ($200,000) for use by City to provide park and recreational facilities. 1.40 "Reserved Powers" means the rights and authority excepted from this Agreement's restrictions on the City's police powers which are reserved to the City. The Reserved Powers supersede the Applicable Rules to the extent of any inconsistency and include the power to enact and implement rules, regulations, ordinances and policies after the Effective Date that may be in conflict with the Applicable Rules, which either (1) prevent or remedy conditions which the City has found to be injurious or detrimental to the public health or safety; (2) are Uniform Codes; (3) are necessary to comply with state and federal laws, rules and regulations (whether enacted previous or subsequent to the Effective Date) or to comply with a court order or judgment of a state or federal court; (4) are agreed to or consented to by Developer; (5) involve the formation of assessment districts, Mello -Roos Community Facilities Districts, special districts, maintenance districts or other similar districts formed in accordance with applicable laws provided, however, that Developer shall retain all its rights with respect to such districts pursuant to all applicable laws; or (6) are Processing Fees and Charges or City- wide fees or charges of general applicability. 1.41 "Section" means the indicated section or subsection number of this Agreement. 1.42 "Site Map" means the map of the Property which is attached thereto as Exhibit A and incorporated herein by reference. 1.43 "Term" means the period of time during which this Agreement shall be in effect and shall bind the City and Developer as provided in Section 7.2 of this Agreement. 1.44 "Uniform Codes" means those building, electrical, mechanical, fire and other similar regulations which are applicable throughout the City, including, but not limited to, the California Building Standards Codes, as adopted by the City Council and codified in Chapter 15.03 (Building Standards Codes and Administrative Provisions Pertaining to Building and Construction) of Title 15 (Buildings and Housing) of the AMC, and the California Fire Code, as adopted by the City Council and codified in Chapter 16.08 (California Fire Code) of Title 16 (Fire) of the AMC, as the same may be amended from time to time by the City. PROPERTY, PURPOSE AND INTENT. 2.1 Property Description. The Property is shown on the Site Map and described in the Legal Description. 2.2 City Objectives. The City desires that the Property be developed as provided for in the Existing Approvals to: (i) create new general fund revenues in excess of the incremental City costs associated with the Project, (ii) provide for the payment by the Developer to the City of the Recreational Amenities Payment, (iii) provide a fully integrated and coordinated development based on comprehensive planning principles; and (iv) to the extent Developer proceeds with the Project, to assure that the Project will be developed as described in the Existing Approvals. 2.3 Developer Objectives. This Agreement is necessary to assure Developer that (i) the Project will not be reduced in density, intensity or use; and (ii) the Project will not be subjected to new rules, regulations, ordinances, or official policies or delays which are not permitted by this Agreement. 2.4 Mutual Objectives. Development of the Project in accordance with this Agreement will provide the assurances required for the development of the Project in accordance with the goals and objectives set forth in the General Plan. Moreover, this Agreement provides additional assurance to the City and Developer that, should Developer proceed with the Project, the installation of necessary improvements will occur in the manner set forth in the Existing Approvals and otherwise achieve the goals and purposes for which the Development Agreement Act was enacted. The Parties believe that such an orderly, coordinated development of the Project will provide many public benefits to the City, including without limitation: delivery by the Developer to the City of the Recreational Amenities Payment, and development of under- utilized properties and uses. AGREEMENT AND ASSURANCES. 3.1 Agreement and Assurance on the Part of Developer. In consideration for the City entering into this Agreement, and as an inducement for the City to obligate itself to carry out the covenants and conditions set forth in this Agreement, and in order to effectuate the purposes and intentions set forth in Section 2 of this Agreement, should Developer proceed with the Project, Developer hereby agrees to (i) develop the Project consistent with the Existing Approvals, and (ii) deliver to the City the Recreational Amenities Payment, by the time set forth therefor in Section 6.2 of this Agreement. 3.2 Agreement and Assurances on the Part of the Cid. In consideration for Developer entering into this Agreement and delivery of the Recreational Amenities Payment and provision of other public benefits, as further set forth in Section 6 below, and as an inducement for Developer to obligate itself to carry out the covenants and conditions set forth in this Agreement, the City hereby agrees during the term as follows: 3.2.1 Entitlement to Development. Developer has a vested right to develop the Project in accordance with the Existing Approvals subject to the terms and conditions of this Agreement, the Applicable Rules and the Reserved Powers. City shall not revoke or modify the Existing Approvals. 3.2.2 Changes in Applicable Rules. 3.2.2.1 Non -Application of Changes in Applicable Rules. Any change in, or addition to, the Applicable Rules, including, without limitation, any change in any applicable general or specific plan, zoning ordinance or building regulation adopted or becoming effective after the Effective Date, including, without limitation, any such change by means or ordinance, City Charter amendment, initiative, referendum, resolution, motion, policy, order or moratorium, initiated or instituted for any reason whatsoever and adopted by the City Council, Planning Commission or City Agency, or by the electorate, as the case may be, which would, absent this Agreement, otherwise be applicable to the Project and which would conflict with the Applicable Rules or this Agreement, shall not be applied to the Project unless such changes represent an exercise of the City's Reserved Powers or are otherwise expressly allowed by this Agreement or consented to in writing by Developer. 3.2.2.2 Changes in Uniform Code. Notwithstanding any provision of this Agreement to the contrary, construction of the Project shall comply with changes occurring from time to time in the Uniform Codes pursuant to the Reserved Powers. 3.2.2.3 Changes Mandated by Federal or State Law. This Agreement shall not preclude the application to the Project of changes in, or additions to, the Applicable Rules. In the event state or federal laws or regulations prevent or preclude compliance with one or more provisions of this Agreement, such provisions shall be modified or suspended as may be necessary to comply with such state or federal laws or regulations. 3.2.2.4 Special Taxes and Assessments. Developer shall have the right, to the extent permitted by law, to protest, oppose and vote against any and all special taxes, assessments, levies, charges and/or fees imposed with respect to any assessment districts, Mello -Roos Community Facilities Districts, maintenance districts or other similar districts which would include the Property or the Project. 3.2.3 Agreed Changes and Other Reserved Powers. This Agreement shall not preclude application to the Project of rules, regulations, ordinances and officially adopted plans and policies otherwise in conflict with the Applicable Rules if (i) agreed to in writing by Developer, or (ii) result from the Reserved Powers. 3.2.4 Subsequent Development. The City shall not require Developer to obtain any approvals or permits for the development of the Project other than those permits or approvals which are required by the Applicable Rules or the Reserved Powers. 3.2.5 Effective Development Standards. The City agrees that with respect to the Project it is bound to pen -nit development of the Project in accordance with the Existing Approvals including without limitation, the uses, intensity and density as permitted by the Existing Approvals, subject to the Applicable Rules, Reserved Powers and this Agreement. Moreover, the City hereby agrees that it will not unreasonably withhold any Discretionary Action which must be issued by the City in order for the Project to proceed, provided that Developer reasonably and satisfactorily complies with all City-wide standard procedures and policies of the City for processing any such Discretionary Action and pays any applicable Processing Fees and Charges. The City shall accept and timely process, in the normal manner for processing such matters as may then be applicable, all applications for further approvals with respect to the Project called for or required under this Agreement, 3.2.6 Timing and Sequencing of Development. The Project shall be completed in one construction phase, including all general grading, site preparation, utility lines and infrastructure. The Parties acknowledge that Developer cannot at this time predict when or the rate at which the Property will be developed. Such decisions depend upon numerous factors which are not within the control of Developer, such as market demand, interest rates, competition and other similar factors. Because the California Supreme Court held in Pardee Construction Co. v. City of Camarillo (1984) 37 Cal.3d 455, that the failure of the parties therein to provide for the timing of development resulted in a later adopted initiative restricting the timing of development to prevail over such parties' agreement, it is the Parties' intent to cure that deficiency by expressly acknowledging and providing that Developer shall have the right to develop the Property, or to not develop the Property, in such order and such rate and at such time as Developer deems appropriate within the exercise of its subjective business judgment in its sole and absolute discretion; provided, however, that upon commencement of any work related to the development or construction of the Project, or any portion thereof, the Developer shall diligently prosecute the same to completion without substantial interruption in accordance with applicable permits and requirements under this Agreement, subject to Force Majeure. In the event an ordinance, resolution or other measure, referendum, or initiative is enacted, whether by action of the City or otherwise, which relates to the rate, amount, timing, or sequencing of the development or construction of the Project on all or any part of the Property or the implementation or construction of the Mitigation Measures, City agrees, to the maximum extent pennitted by law, that such ordinance, resolution or other measure shall not apply to the Project, the Property or this Agreement, unless such changes are adopted pursuant to the City's exercise of its Reserved Powers or other applicable provisions of this Agreement. 3.2.7 Impact Fees; Credit for Developer Installed Facilities. The Project shall be subject to the Impact Fees and crediting provisions related thereto in force at the time of application and as may be amended from time to time and are not restricted or limited in any way by this Agreement. Nothing contained herein shall be construed to prohibit the City from imposing fees, taxes or assessments on the Property which are unrelated to the approval or implementation of the Project. 3.3 Processing Fees; Extraordinary Processing Consultant Charges and Environmental Review. 3.3.1 Processing Fees and Charges. Developer shall pay all Processing Fees and Charges for Ministerial Permits and Approvals and Inspections at the rate in effect at the time they are sought. 3.3.2 Extraordinary Processing Consultant. Developer may request that the City engage an Extraordinary Processing Consultant to coordinate and expedite the processing of actions required through the Ministerial Permits and Approvals and all Discretionary Actions applicable to the Project. If so requested and the City deems it necessary, in its sole discretion, it will engage such Extraordinary Processing Consultant and the Developer shall reimburse the City for the costs of such Extraordinary Processing Consultant in accordance with the terms of Section 7.20 hereof. 3.3.3 Environmental Review. The City has conducted extensive environmental review of the Project and has adopted the Mitigation Measures. The City intends that Ministerial Permits and Approvals are not actions subject to requirements for further environmental review pursuant to CEQA. 4. DEVELOPMENT PLAN. 4.1 Vested Right to Develop Property. Subject to the terms of this Agreement, Developer shall have a vested right to develop the Property in accordance with, and to receive the benefits set forth and provided in, the Existing Approvals. In the absence of a default by Developer, City shall not revoke, rescind, impede or thwart any of the Existing Approvals. 5. ANNUAL REVIEW; REIMBURSEMENT: DEFAULT; SPECIFIC PERFORMANCE. 5.1 Annual Review. During the Term and so long as this Agreement is in effect, Developer shall initiate and the City shall conduct an Annual Review of Developer's compliance with this Agreement and the Procedures Resolution. Such Annual Review shall be limited in scope to determining good faith compliance with the provisions of this Agreement. The Annual Review shall be initiated and conducted in accordance with the Procedures Resolution. 5.2 Reimbursement of Costs. Developer shall pay to City in advance, the Application Fee for Annual Review required by the City's Procedures Resolution on each occasion that Developer submits its evidence for the Annual Review. Developer shall also reimburse the City for its actual costs, reasonably and necessarily incurred or any legal or financing consultant cost necessary to accomplish review of amendments pursuant to Section 7.5 of this Agreement. Such reimbursement shall be due within thirty (30) days after receipt of invoice from the City. 5.3 Default by Developer. 5.3.1 Default. In the event the City reasonably determines that Developer has failed to perform any of its obligations under this Agreement, or that any such obligations are not performed in a timely manner, the City may pursue only those remedies expressly provided for in this Agreement; provided, however, that the City's right to compel specific performance of the obligations of Developer under this Agreement shall be subject to the limitations set forth in Section 5.3.4. Further, the City shall have no right to monetary damages except as set forth in Section 5.4.2. 5.3.2 Notice of Default. In the event the City reasonably determines that Developer is in default of any of its obligations under this Agreement, the City shall send a notice of such alleged default(s) to Developer in which the allegations of default shall be set forth in sufficient detail to enable Developer to ascertain the specific actions necessary to cure the alleged default(s). Upon receipt of a notice of default, Developer shall promptly commence to cure the identified default(s) at the earliest reasonable time after receipt of such notice but in no event more than thirty (30) days after receipt of notice and shall complete the cure of (i) any monetary default(s) not later than thirty (30) days after the receipt of such notice of default, and (ii) any non -monetary default(s) not later than ninety (90) days after the receipt of such notice of default or such longer period as necessary to cure default as agreed to by City in its sole discretion. The Parties may mutually agree in writing to extend the time periods set forth in this Section. 5.3.3 Termination for Failure to Cure Default. If after the cure period provided for in Section 5.3.2 has lapsed and the Planning Director reasonably finds and determines that Developer remains in default, the Planning Director shall make a report to the City Council concerning such default and the City Council may thereafter proceed to modify or terminate this Agreement in accordance with the Procedures set forth in Sections 7.2 and 7.3 of the Procedures Resolution. 5.3.4 Specific Performance. Except as provided in this Section 5.3.4, the City shall have no right under this Agreement to seek a remedy of specific performance with respect to the Project in the event of an abandonment of the Project after construction has commenced. The City's right to seek specific performance to compel completion of the Project (including portions of the Project) in the event of such abandonment after construction has commenced shall be specifically limited to (i) compelling Developer, at the election of the City in its sole discretion, to complete or demolish any uncompleted improvements located on public property initiated in connection with the Project with the choice of whether to demolish or complete such improvements and the method of such demolition or completion of such improvements to be selected by the City in its sole discretion, and (ii) compelling Developer, at the election of the City in its sole discretion, to complete or make safe and secure any uncompleted improvements located on the Property with the choice of whether to demolish, complete or secure such improvements and the method of such demolition, completion and securing of such improvements to be selected by Developer in its sole discretion. The City's specific performance remedy shall include the right to require dedication to the City of the improvements located on public property upon completion together with conveyance of real property as contemplated by this Agreement. Prior to Commencement of Construction, Developer shall post a performance bond or other security in an amount and form reasonably satisfactory to the City Attorney to guarantee demolition or securing of such uncompleted improvements located on public property and/or located on the Property. The Developer's contractor's performance bond from a creditworthy bonding company assigned to the City is a performance bond that will be acceptable to City. Nothing in this Section 5.3.4 shall limit the City's enforcement of all applicable provisions of the Applicable Rules, Existing Approvals, Mitigation Measures, and Uniform Code for any portion of the Project then or thereafter constructed (e.g., requiring Developer to build sewer laterals required under Applicable Rules to serve the Project actually completed), termination of this Agreement in accordance with the provisions hereof notwithstanding. In addition, nothing in this Section shall limit or restrict in any way the City's monetary remedies as provided for in Section 5.4.2 hereof. 5.3.5 Damages. The City shall have the right to recover (1) actual damages only (and not consequential, punitive or special damages, each of which is hereby expressly waived) for (a) the Developer's failure to pay sums to the City as and when due under this Agreement, but subject to any express conditions for such payment set forth in this Agreement, and (b) the Developer's failure to make payment due under any indemnity in this Agreement, (2) any and all damages relating to the Developer's failure to construct Public Improvements in accordance with City -approved plans and specifications and in accordance with all applicable laws (but only to the extent that the City first collects against any security, including but not limited to bonds, for such Public Improvements), and (3) attorney's fees and costs when awarded by an arbitrator or a court with jurisdiction. For purposes of the foregoing, "actual damages" shall mean the actual amount of the sum due and owing under this Agreement, with interest as provided by law, together with such judgment collection activities as may be ordered by the judgment and no additional sums. 5.4 Default by City. 5.4.1 Notice of Default. In the event the Developer reasonably determines that the City is in default of any of its obligations under this Agreement, the Developer shall send a notice of such alleged default(s) to the City in which the allegations of default shall be set forth in sufficient detail to enable the City to ascertain the specific actions necessary to cure the alleged default(s). Upon receipt of written notice of default from Developer, the City shall promptly commence to cure the identified default(s) at the earliest reasonable time after receipt of the notice of default and shall complete the cure of such default(s) not later than sixty (60) days after receipt of the notice of default or such longer period as necessary to cure default as agreed to by the Developer in its sole discretion. The Parties may mutually agree in writing to extend the time periods set forth in this Section. 5.4.2 Specific Performance and Mandamus. It is acknowledged by the Parties that the City would not have entered into this Agreement if it were to be liable in damages under or with respect to this Agreement or the application thereof. In addition, the Parties agree that monetary damages are not an adequate remedy for Developer if the City should be determined to be in default under this Agreement. The Parties further agree that specific performance and mandamus shall be Developer's only remedies under this Agreement and Developer may not seek monetary damages in the event of a default by the City under this Agreement. Developer covenants not to sue for or claim any monetary damages in the event of a default by the City under this Agreement (including without limitation special, incidental or consequential damages) and expressly waives its right to recover damages under this Agreement. Developer may seek specific performance of City's obligations under this Agreement or a writ of mandate pursuant to Code of Civil Procedure sections 1085 or 1094.5, as applicable, to compel the City to take or refrain from taking any action, or to modify any action taken, that is necessary to effectuate the terms of this Agreement only after serving written notice of the alleged default(s) on City and lapse of the period given for City to cure such default(s), all in accordance with Section 5.4.1, and for so long as City remains in default of its obligations under this Agreement. 6. PUBLIC BENEFITS. 6.1 Increase in Property Taxes. The Project will generate significant additional property taxes. 6.2 Recreational Amenities Payment. Developer shall deliver to the City the Recreational Amenities Payment in the amount of Two Hundred Thousand and No/100 Dollars ($200,000.00), which payment shall be paid to the City prior and as a condition precedent to the City's approval of the Final Map. Said amount shall be used by the City, in its sole discretion, to fund certain public park and recreational improvements which may be constructed by the City near the Project. 7. GENERAL PROVISIONS. 7.1 Date Agreement Becomes Effective. This Agreement shall become effective on the Effective Date. 7.2 Term. 7.2.1 Basic Term. The Term of this Agreement shall commence on the Effective Date of this Agreement and shall extend for a period of five (5) years after the Effective Date, unless extended or earlier terminated as provided herein. 7.2.2 Early Termination of Agreement. This Agreement is terminable: (i) by mutual written agreement of the Parties; or (ii) by either Party following an uncured default by the other Party under this Agreement, subject to the procedures and limitations set forth in this Agreement; or (iii) upon the occurrence of the entry of a final judgment or issuance of a final order, after all appeals have been exhausted, directed to the City as a result of any lawsuit filed against the City to set aside, withdraw or abrogate the approval of the City Council of this Agreement; or (iv) if termination occurs pursuant to the provisions of the Procedures Resolution and such termination is so intended thereby. 7.2.3 Automatic Termination of Agreement. If not already terminated by reason of any other provision in this Agreement, or for any other reason, this Agreement shall automatically terminate and be of no further force and effect upon completion of the Project pursuant to the terms of this Agreement and any further amendments thereto and the issuance of all occupancy permits and acceptance by the City of all dedications and improvements as required by the development of the Project. 7.2.4 Effect of Termination. Following expiration of the Term, early termination pursuant to Section 7.2.2 above, or automatic termination pursuant to Section 7.2.3, this Agreement shall be of no further force and effect, except for any provisions which, by their express terms, survive the expiration or termination of this Agreement. 7.3 Force Majeure: Extension of Time of Performance. In addition to specific provisions of this Agreement, whenever a period of time is designated within which either Party hereto is required to do or complete any act, matter or thing, both the time for the doing or completion thereof and the Term of this Agreement and the specific obligation hereunder shall be extended by a period of time equal to the number of days which such Party is prevented from, or is unreasonably interfered with the doing or completion of such act, matter or thing because of the following causes, which causes are beyond the reasonable control of the Party to be excused including: war, terrorist acts, insurrection; strikes; walk -outs; riots; floods; earthquakes; fires; unavoidable casualties; acts of God; Litigation and administrative proceedings which are brought against the Project by a third party (not including any administrative proceedings contemplated by this Agreement in the normal course of affairs such as the Annual Review); restrictions imposed or mandated by other governmental entities ("Governmental Restrictions"); enactment of conflicting state or federal laws or regulations ("Conflicting Laws"); judicial decisions ("Judicial Decisions"); or similar bases for excused performance which is not within the reasonable control of the Party to be excused (financial inability excepted). This Section shall not be applicable to, bankruptcy or receivership initiated by or on behalf of Developer or, if not dismissed within ninety (90) days, by any third parties against Developer. A Party wishing to invoke this Section shall notify in writing the other Party of that intention within thirty (30) days of the commencement of any such cause for delay and shall, at that time, specify the reasons therefor, the provisions of this Agreement that will be delayed as a result, and the period of such extension, if known, or, if not known, the party's best estimate thereof. The failure to so notify the other Party within that period as to the cause for delay shall constitute a waiver of any right to later rely upon this Section with respect to that cause. In the event any such extension continues for more than one hundred eighty (180) days, any Party not then in Default of its obligations hereunder, shall be entitled to terminate this Agreement upon written notice to the other and, in that event, the Parties shall have no further obligations hereunder. 7.4 Applicable Law. This Agreement shall be construed and enforced in accordance with the laws of the State of California, and the venue for any legal actions brought by any Party with respect to this Agreement shall be the County of Orange, State of California, for state actions, and the Orange County Division of the Central District of California for any federal actions. 7.5 Amendments. This Agreement may be amended from time to time in writing in accordance with Government Code section 65868 and the Procedures Resolution. 7.6 Assi ng ment. 7.6.1 Right to Assign. Developer shall have the right to sell, mortgage, hypothecate, assign or transfer this Development Agreement, and any and all of its rights, duties and obligations hereunder, to any person, partnership, joint venture, firm or corporation at any time during the term of this Agreement, provided that any such sale, mortgage, hypothecation, assignment or transfer must be pursuant to a sale, assignment or other transfer of the interest of Developer in the Property (or a portion thereof), which, prior to Developer's acquisition of fee title to the Property shall mean and refer to Developer's equitable interest in the Property. In the event of any such sale, mortgage, hypothecation, assignment or transfer, (a) Developer shall notify the City of such event and the name of the transferee, together with the corresponding entitlements being transferred to such transferee and (b) the agreement between Developer and such transferee shall provide that the transferee shall be liable for the performance of all obligations of Developer pursuant to this Agreement and the Existing Approvals with respect to Developer's interest in the Property (or portion thereof) so transferred. Upon the express written assumption of any and all of the obligations of Developer under this Agreement by such transferee, the transfer shall, without any act of or concurrence by the City, relieve Developer of its legal duty to perform said obligations under this Agreement with respect to Developer's interest in the Property (or portion thereof), so transferred, except to the extent Developer is in default under the terms of this Agreement. 7.7 Mortgage Rights. 7.7.1 Encumbrances on the Property and this Agreement. The Parties hereto agree that this Agreement shall not prevent or limit Developer, in any manner, at Developer's sole and absolute discretion, from encumbering the Property or any portion thereof or any improvements thereon with any Mortgage. Developer is hereby given the express right, in addition to any other rights herein granted, to grant a Mortgage on its interests in this Agreement or any part or parts thereof, under one or more Mortgages and to assign this Agreement as collateral security for any such Mortgage. 7.7.2 Mortgagee Protection. This Agreement shall be superior and senior to the lien of any Mortgage. Notwithstanding the foregoing, no breach of this Agreement shall defeat, render invalid, diminish, or impair the lien of any Mortgage made in good faith and for value, and any acquisition or acceptance of title or any right or interest in or with respect to the Property or any portion thereof, or to this Agreement, by a Mortgagee (whether pursuant to foreclosure, lease termination or otherwise) shall upon written election by the Mortgagee within sixty (60) days after receipt of such right, title or interest, be subject to all of the terms and conditions of this Agreement and any such Mortgagee who takes title to the Property or any portion thereof, or to this Agreement, shall also be entitled to the rights and obligations arising under this Agreement. 7.7.3 Mortgagee Not Obligated. Notwithstanding the provisions of this Section 7.7, a Mortgagee will not have any rights, obligations or duties pursuant to the terms set forth in this Agreement to perform the obligations of Developer or other affirmative covenants of Developer hereunder or to guarantee such performance, unless such Mortgagee expressly assumes the rights and obligations of the Developer and except that (i) the Mortgagee shall upon written election by the Mortgagee within sixty (60) days after receipt of such right, title or interest, have no right to develop the Project without fully complying with the terms of this Agreement, and (ii) to the extent that any covenant to be performed by Developer is a condition to the performance of any covenant by the City, the performance thereof shall continue to be a condition precedent to the City's performance hereunder. Although not obligated to do so, upon written election by the Mortgagee within sixty (60) days after receipt of such right, title or interest, any Mortgagee may do any act or thing required by Developer hereunder, and do any act or thing which may be necessary and properly done in the performance and observance of the agreements, covenants and conditions hereof to prevent termination of this Agreement in accordance with Section 7.7.4. Any Mortgagee and its agents and contractors shall have full access to the Property for purposes of accomplishing any of the foregoing. Any of the foregoing done by any Mortgagee shall be as effective to prevent a termination of this Agreement as if the same would have been done by the Developer. 7.7.4 Notice of Default to Mortgagee: Right of Mortgagee to Cure. Each Mortgagee shall, upon written request to City be entitled to receive written notice from the City of the result of the Annual Review and of any default by Developer of its obligations set forth in this Agreement simultaneously with the delivery of such notices to the Developer. Each Mortgagee shall have the right, but not an obligation, to cure such default within ninety (90) days after receipt of such notice or, if such default can only be remedied or cured by such Mortgagee upon obtaining possession of the Property, such Mortgagee shall have the right to seek or obtain possession with diligence and continuity through a receiver or otherwise, and to remedy or cure such default within ninety (90) days after obtaining possession, and, except in case of emergency or to protect the public health or safety as determined by the City in its reasonable discretion, City may not exercise any of its remedies set forth in this Agreement until expiration of such ninety (90) day period whether commencing upon receipt of notice or upon obtaining possession of the interests covered by a Mortgage, as applicable; provided, however, that in the case of a default which cannot with diligence be remedied or cured or the remedy or cure of which cannot be commenced within such ninety (90) day period, the Mortgagee shall have such additional time as is reasonably necessary to remedy or cure such default. Any notice of termination delivered in violation of this Section 7.7.4 shall be rendered void. In any case where, sixty (60) days after receipt by the Mortgagee of the notice of the Developer's default, the holder of any Mortgage creating a lien or encumbrance upon the Property, or any part thereof, has not exercised the option to cure, or, if it has exercised the option, is not proceeding diligently with the cure, the City may proceed with termination of this Agreement and any further obligations of City hereunder. 7.7.5 Bankruptcy. Notwithstanding the foregoing provisions of this Section 7.7, if any Mortgagee is prohibited from commencing or prosecuting foreclosure or other appropriate proceedings in the nature thereof by any injunction issued by any court or by reason of any action by any court having jurisdiction of any bankruptcy or insolvency proceeding involving Developer, the times specified in Section 7.7.4 for commencing or prosecuting foreclosure or other proceedings shall be extended for the period of the prohibition. In addition, if this Agreement is rejected or otherwise terminated in connection with any such proceeding, then upon the request of any mortgagee, a new development agreement upon the same terms and conditions set forth in this Agreement may be entered into between such Mortgagee and City. 7.7.6 Termination Subject to Mortga eg e Rights. All rights of the City to terminate this Agreement, vis-a-vis the Mortgagee, as a result of the occurrence of any default shall be subject to, and conditioned upon, the City having first given to each Mortgagee written notice of the default as required under 7.7.4 above, and all Mortgagees having failed to remedy such default or acquire Developer's interests hereunder, or having failed to commence foreclosure or other appropriate proceedings in the nature thereof as set forth in Section 7.7.4 above. 7.7.7 No Cancellation. There shall be no cancellation, surrender or modification of this Agreement by joint action of the Parties without a minimum of ninety (90) days prior written notice to each Mortgagee who has requested such notice. 7.7.8 New Agreement Upon Default by Developer. City agrees that in the event of termination of this Agreement by reason of a default by Developer, the City will enter into a new development agreement with the most senior Mortgagee whose Mortgage encumbers this Agreement requesting a new development agreement for the remainder of the term of this Agreement, such new agreement being effective as of the date of such termination, and containing such terms, provisions, covenants and agreements as herein contained, provided: (a) The senior Mortgagee shall make written request upon City for such new development agreement within thirty (30) days after the date of termination; (b) The senior Mortgagee shall pay to the City at the time of the execution and delivery of such new development agreement any and all sums which would, at the time of the execution and delivery thereof, be due and unpaid pursuant to this Agreement but for its termination; including any expenses, attorneys' fees and costs, to which the City was subjected by reason of such default; (c) The senior Mortgagee shall perform and observe all covenants herein contained on Developer's part to be performed, and shall further remedy any other conditions which Developer was obligated to perform under the terms of this Agreement, and to the extent that same are curable or may be performed by the senior Mortgagee; and (d) Notwithstanding anything to the contrary expressed or implied elsewhere in this Agreement, any new development agreement made pursuant to this Section shall be superior to any Mortgage to the same extent as this Agreement. 7.7.9 Separate Agreement. The City shall, upon request, execute, acknowledge and deliver to each Mortgagee an agreement prepared at the sole cost and expense of the Developer (including related legal fees incurred by the City), in form satisfactory to each Mortgagee and City, between City, Developer and the Mortgagee(s), confinning all of the provisions hereof and/or such other documents containing terms and provisions customarily required by Institutional Lenders in connection with such financing, provided, however, the City shall not be obligated to approve any terms that would impair or adversely affect the rights and obligations of the City, or otherwise amend this Agreement and/or the obligations of the Developer as set forth in this Agreement 7.7.10 Material Notices. The Developer shall give all Mortgagees notice of any Litigation and the parties hereby consent to intervention in such Litigation by the Mortgagee. In the event any Mortgagee shall not elect to intervene or become a party to the proceedings, such Mortgagee shall be provided notice and a copy of any award or decision made in connection therewith. 7.7.11 Mortg_a eg a Right to Assign. Foreclosure of any Mortgage, or any sale thereunder, whether by judicial proceedings or by virtue of any power contained in the Mortgage, or any conveyance of the interest of Developer hereunder to any Mortgagee or its designee through, or in lieu of, foreclosure or other appropriate proceedings in the nature thereof, shall not require the consent of the City or constitute a breach of any provision of or a default under this Agreement; and upon such foreclosure, sale or conveyance, the City will recognize the purchaser or other transferee in connection therewith as the Developer hereunder. 7.8 Covenants. The provisions of this Agreement shall constitute covenants which run with the land comprising the Property for the benefit thereof and as a burden thereon, and the burdens and benefits hereof shall bind and inure to the benefit of all assignees, transferees and successors to the parties. 7.9 Implementation. Upon satisfactory completion by Developer of all required applications and payment of applicable Processing Fees and Charges, including the fee for processing this Agreement, if Developer proceeds with the Project, the City and Developer shall commence and diligently process all required steps necessary for the implementation of this Agreement and development of the Project in accordance with the terms of this Agreement. Developer shall, in a timely manner, provide the City with all documents, plans and other information necessary for the City to carry out its processing obligations hereunder. 7.10 Relationship of the Parties. It is specifically understood and agreed by and between the Parties hereto that the Project is a private development, that neither Party is acting as the agent of the other in any respect hereunder, and that each Party is an independent contracting entity with respect to the terms, covenants and conditions contained in this Agreement. The only relationship between the City and the Developer is that of a government entity regulating the development of private property and the owner of such private property. Further, the City and Developer hereby renounce the existence of any form of joint venture or partnership between them and agree that nothing herein or in any document executed in connection herewith shall be construed as making the City and Developer joint venturers or partners. 7.11 Cooperation in the Event of Third Party Litigation. In the event legal action is instituted by a third party, including any other governmental entity or official challenging the validity or enforceability of any provision of this Agreement, or the Existing Approvals vested pursuant to this Agreement, other actions taken pursuant to CEQA, or any other action by either Party in properly performing hereunder, the Parties hereby agree to affirmatively cooperate with each other in defending said action and the validity of each provision of this Agreement; provided, however, that Developer agrees to and shall defend, indemnify, save and hold the City and its elected and appointed representatives, boards, commissions, offices, agents, employees, consultants and attorney's (collectively, the "City" in this section 7.11) harmless from any and all claims, costs and liability, including without limitation, court costs and attorneys' fees awarded to any party, to the extent they result from any such Litigation, and shall reimburse the City for its actual costs in defense of the action or proceeding, including, but not limited to the time and expenses of the City Attorney's Office and any consultants. As the indemnifying Party and provided that Developer demonstrates to City, to City's reasonable satisfaction, that Developer has the financial wherewithal to indemnify the City hereunder at the time of any such Litigation, Developer shall at all times retain final authority and control over all documents to be filed in such Litigation and notwithstanding the provisions of this Section 7.11, the City shall be deemed to have waived its rights to be indemnified hereunder if the City settles any Litigation, in whole or in part, or files any documents in such Litigation without Developer's prior written approval, which approval shall not be unreasonably withheld. This section shall survive any judgment invalidating all or any part of this Agreement. The Developer shall be entitled to choose legal counsel to defend against any such legal action and shall pay any attorneys' fees awarded against the City or the Developer, or both, resulting from any such legal action. The Developer shall be entitled to any award of attorneys' fees arising out of any such legal action. 7.12 Notices. Any notice or communication required hereunder between the City and Developer must be in writing, and may be given either personally, by registered or certified mail, return receipt requested or by overnight courier. If given by registered or certified mail, the same shall be deemed to have been delivered and received on the first to occur of (i) actual receipt by any of the addresses designated below as the Party to whom notices are to be sent, or (ii) five (5) days after a registered or certified letter containing such notice, properly addressed, with postage prepaid, is deposited in the United States mail. If personally delivered or delivered by courier, a notice shall be deemed to have been delivered when received by the Party to whom it is addressed. Any Party hereby may at any time, by giving ten (10) day's written notice to the other Party hereto, designate any other address in substitution of the address, or any additional address, to which such notice or communication shall be given. Such notices or communications shall be given to the Parties at their addresses set forth below: If to City: City Clerk City of Anaheim 200 South Anaheim Blvd., 2nd Floor Anaheim, CA 92805 If to Developer: Greg McCafferty Sagecrest, LLC 2400 East Katella Anaheim, CA 92806 With Copies to: City Attorney City of Anaheim 200 South Anaheim Blvd., Suite 356 Anaheim, CA 92805 With Copies to: John A. Ramirez, Esq. Rutan & Tucker, LLP 611 Anton Blvd, 14th Floor Costa Mesa, CA 92626 7.13 Recordation. The City's Clerk shall record a copy of this Agreement with the Registrar -Recorder of Orange County within ten (10) business days following the later to occur of (i) execution by both parties, or (ii) the Effective Date of the Authorizing Ordinance. To the extent that the Property consists of property under Lease by Developer, this Agreement shall encumber only the leasehold interest and shall not constitute an encumbrance upon the estate in fee. 7.14 Developer Hold Harmless. Developer hereby agrees to and shall indemnify, save, hold harmless and defend the City, and its elected and appointed representatives, boards, commissions, officers, agents, employees, consultants and attorneys (collectively, the "City" in this Section 7.14), from any and all claims, costs, and liability of any kind which may arise, directly or indirectly, from any of Developer's acts or omissions under, related to, or in any respect connected with this Agreement and/or the development, of the Property and/or the Project, and/or Developer's activities on the Property (or the activities of the Developer's employees, contractors, subcontractors, agents, representatives, or independent contractors on the Property), including without limitation the construction of the Project. Nothing in this Section shall be construed to mean that Developer shall hold the City harmless and/or defend it to the extent that such claims, costs or liability arise from the negligent acts, or negligent failure to act, on the part of the City. City agrees that it shall fully cooperate with Developer in the defense of any matter in which Developer is defending and/or holding the City harmless and at no cost to City. Notwithstanding anything in this Agreement which is or appears to be to the contrary, the obligations set forth herein shall survive the Term, termination or earlier expiration of this Agreement. 7.15 Successors and Assigns. Subject to the limitations on transfer set forth in this Agreement, all of the provisions, agreements, rights, powers, standards, terms, covenants and obligations contained in this Agreement shall be binding upon and shall inure to the benefit of the Parties, and their respective successors (by merger, consolidation or otherwise), assigns and transferees, and all persons or entities acquiring the Property or any portion thereof or any interest therein, whether by sale, operation of law, or in any manner whatsoever. 7.16 Severability. if any provisions, conditions, or covenants of this Agreement, or the application thereof to any circumstances of either Party, shall be held invalid or unenforceable, the remainder of this Agreement or the application of such provision, condition, or covenant to persons or circumstances other than those as to whom or which it is held invalid or unenforceable shall not be affected thereby and shall be valid and enforceable to the fullest extent permitted by law. 7.17 Waiver. No waiver of any provision of this Agreement shall be effective unless in writing and signed by the Party against whom enforcement of a waiver is sought and such waiver refers expressly to the Section containing the waived provision. No waiver of any right or remedy in respect of any occurrence or event shall be deemed a waiver of any right or remedy in respect of any other occurrence or event. 7.18 Third Party Beneficiaries. There are no third party beneficiaries to this Agreement and this Agreement is not intended, and shall not be construed to benefit or be enforceable by any other persons or entities other than the Parties. 7.19 Expedited Processing. Developer and City agree to cooperate in the expedited processing of any legal action seeking mandamus, specific performance, declaratory relief or injunctive relief, to set court dates at the earliest practicable date(s) and not cause delay in the prosecution/defense of the action, provided such cooperation shall not require any Party to waive any rights. 7.20 Requests for Payment. Except for the Recreational Amenities Payment, with respect to any requests by the City for payment of amounts due under this Agreement, Developer retains its right to review any invoices or requests for payments submitted by the City pursuant to this Agreement. Developer shall review and reasonably approve such invoices or requests for payment or shall identify any disputed amounts within twenty (20) days after receipt. At Developer's request, the City shall provide Developer with reasonable information or back-up materials supporting such invoices or requests for payment at City offices, with reasonable notice, during business hours. In the event of any disputed invoices or requests for payment, Developer shall timely pay all amounts not disputed. 7.21 Entire Agreement. This Agreement and the documents, agreements and exhibits referenced herein or attached hereto set forth and contain the entire understandings and agreements of the parties, and there are no oral or written representations, understandings or ancillary covenants, undertakings or agreements which are not contained or expressly referred to herein and no testimony or evidence of any such representations, understandings, or covenants shall be admissible in any proceedings of any kind or nature to interpret or determine the provisions or conditions of this Agreement. 7.22 Conflict of Laws. With the exception of the Force Majeure provisions set forth in Section 7.3 hereof, it is agreed by the Parties that the obligations and conditions contained in the Existing Approvals and Mitigation Measures govern the development of the Property. To the extent that any provisions of this Agreement may conflict with any of the obligations, conditions or mitigations imposed on Developer pursuant to the Existing Approvals and Mitigation Measures, the Existing Approvals and Mitigation Measures shall govern. 7.23 Legal Advice; Neutral Interpretation; Headings and Table of Contents. Each Party has received independent legal advice from its attorneys with respect to the advisability of executing this Agreement and the meaning of the provisions hereof. The provisions of this Agreement shall be construed as to their fair meaning, and not for or against any Party based upon any attribution to such Party as the source of the language in question. The headings and table of contents used in this Agreement are for the convenience of reference only and shall not be used in construing this Agreement. 7.24 Counterparts. This Agreement is executed in six duplicate originals, each of which is deemed to be an original. 7.25 Organization and Standing of Developer. Developer is a limited liability company duly organized, qualified and validly existing and in good standing under the laws of the State of California, and has all requisite power and authority to enter into and perform its obligations under this Agreement. All consents or approvals of Developer's members required in connection with the execution and delivery by the Developer of this Agreement will have been obtained and delivered to the City. [Remainder of page intentionally left blank. Signatures appear on next page.] IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as of the date first written below. Dated: ATTEST: LINDA N. ANDAL, CITY CLERK APPROVED AS TO FORM: Theodore J. Reynolds Assistant City Attorney "CITY" CITY OF ANAHEIM, a municipal corporation and charter city M. "DEVELOPER" SAGECREST, LLC, a California limited liability company By: Gregory McCafferty Its: Member Joshua Haskins Its: Member A Notary Public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document. State of California County of On , before me, (insert name and title of the officer) Notary Public, personally appeared who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Signature (Seal) A Notary Public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document. State of California County of On , before me, (insert name and title of the officer) Notary Public, personally appeared , who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Signature (Seal) A Notary Public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document. State of California County of Orange On , before me, (insert name and title of the officer) Notary Public, personally appeared who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Signature (Seal) EXHIBIT "A" SITE MAP TENTATIVE TRACT TTM No. . . 415 SOUTH ANAHEIM "ILLS ROAD, ANAHEIM HILLS. 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"a $/LEiECI{� ® TCNTATIYL TRACT MAP TTM No. 17959 N8 6WIH I11M0Y MLLE AOAO. ANANDN HILLS. CF Barr ARK Ne. aaa-ssa-ea . 1 clic OF ANAHOM COUNTY OF 0RANO6. _CALIFORNIA USA EXHIBIT "B" LEGAL DESCRIPTION LEGAL DESCRIPTION OF THE PROPERTY THE LAND REFERRED TO HEREIN BELOW IS SITUATED IN THE CITY OF ANAHEIM, IN THE COUNTY OF ORANGE, STATE OF CALIFORNIA, AND IS DESCRIBED AS FOLLOWS: PARCEL 2 OF PARCEL MAP NO. 88-335, AS PER MAP FILED IN BOOK 245 PAGES 11 TO 18 INCLUSIVE OF PARCEL MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY. EXCEPT THEREFROM ALL OIL, OIL RIGHTS, NATURAL GAS RIGHTS, MINERAL RIGHTS, AND OTHER HYDROCARBON SUBSTANCES BY WHATEVER NAME KNOWN, TOGETHER WITH APPURTENANT RIGHTS THERETO, WITHOUT, HOWEVER, ANY RIGHT TO ENTER UPON THE SURFACE OF SAID LAND NOR ANY PORTION OF THE SUBSURFACE LYING ABOVE A DEPTH OF 500 FEET, AS RESERVED BY TEXACO ANAHEIM HILLS, INC., A CORPORATION, IN THE CORPORATION GRANT DEED RECORDED JANUARY 4, 1983, AS INSTRUMENT NO. 83-002464, OF OFFICIAL RECORDS. APN: 363-472-03 RECORDING REQUESTED BY AND, WHEN RECORDED, RETURN TO: City Clerk City of Anaheim P.O. Box 3222 Anaheim, California 92805 (SPACE ABOVE FOR RECORDER'S USE) DEVELOPMENT AGREEMENT NO. 2016-00003 BETWEEN CITY OF ANAHEIM AND SAGECREST, LLC 1. DEFINITIONS...............................................................................................................2 2. PROPERTY, PURPOSE AND INTENT......................................................................6 Annual Review.................................................................................................10 2.1 Property Description.......................................................................................... 6 2.2 City Objectives................................................................................................... 6 2.3 Developer Objectives......................................................................................... 7 2.4 Mutual Objectives.............................................................................................. 7 3. AGREEMENT AND ASSURANCES..........................................................................7 3.1 Agreement and Assurance on the Part of Developer.........................................7 5.3.2 Notice of Default..................................................................................10 3.2 Agreement and Assurances on the Part of the City ........................................... 7 3.2.1 Entitlement to Development.................................................................. 7 3.2.2 Changes in Applicable Rules................................................................. 7 3.2.3 Agreed Changes and Other Reserved Powers ....................................... 8 3.2.4 Subsequent Development....................................................................... 8 3.2.5 Effective Development Standards.......................................................... 8 3.2.6 Timing and Sequencing of Development .............................................. 9 3.2.7 Impact Fees; Credit for Developer Installed Facilities .......................... 9 3.3 Processing Fees; Extraordinary Processing Consultant Charges and 5.4.2 Specific Performance and Mandamus.................................................12 Environmental Review.......................................................................................9 6. PUBLIC 3.3.1 Processing Fees and Charges................................................................. 9 3.3.2 Extraordinary Processing Consultant.....................................................9 Increase in Property Taxes...............................................................................12 3.3.3 Environmental Review.........................................................................10 6.2 4. DEVELOPMENT PLAN.............................................................................................10 4.1 Vested Right to Develop Property...................................................................10 5. ANNUAL REVIEW; REIMBURSEMENT; DEFAULT; SPECIFIC PERFORMANCE........................................................................................................10 5.1 Annual Review.................................................................................................10 5.2 Reimbursement of Costs..................................................................................10 5.3 Default by Developer.......................................................................................10 5.3.1 Default..................................................................................................10 5.3.2 Notice of Default..................................................................................10 5.3.3 Termination for Failure to Cure Default..............................................11 5.3.4 Specific Performance...........................................................................11 5.3.5 Damages...............................................................................................11 5.4 Default by City.................................................................................................12 5.4.1 Notice of Default..................................................................................12 5.4.2 Specific Performance and Mandamus.................................................12 6. PUBLIC BENEFITS....................................................................................................12 6.1 Increase in Property Taxes...............................................................................12 6.2 Recreational Amenities Payment.....................................................................12 7. GENERAL PROVISIONS..........................................................................................13 7.1 Date Agreement Becomes Effective................................................................13 7.2 Term.................................................................................................................13 7.2.1 Basic Term...........................................................................................13 7.2.2 Early Termination of Agreement.........................................................13 7.2.3 Automatic Termination of Agreement.................................................13 7.2.4 Effect of Termination...........................................................................13 7.3 Force Majeure..................................................................................................13 7.4 Applicable Law................................................................................................14 7.5 Amendments....................................................................................................14 7.6 Assignment......................................................................................................14 7.6.1 Right to Assign....................................................................................14 7.7 Mortgage Rights...............................................................................................14 7.7.1 Encumbrances on the Property and this Agreement ............................14 7.7.2 Mortgagee Protection...........................................................................15 7.7.3 Mortgagee Not Obligated....................................................................15 7.7.4 Notice of Default to Mortgagee...........................................................15 7.7.5 Bankruptcy...........................................................................................16 7.7.6 Termination Subject to Mortgagee Rights...........................................16 7.7.7 No Cancellation...................................................................................16 7.7.8 New Agreement Upon Default by Developer......................................16 7.7.9 Separate Agreement.............................................................................17 7.7.10 Material Notices...................................................................................17 7.7.11 Mortgagee Right to Assign..................................................................17 7.8 Covenants.........................................................................................................17 7.9 Implementation................................................................................................17 7.10 Relationship of the Parties...............................................................................18 7.11 Cooperation in the Event of Third Party Litigation.........................................18 7.12 Notices.............................................................................................................18 7.13 Recordation......................................................................................................19 7.14 Developer Hold Harmless................................................................................19 7.15 Successors and Assigns....................................................................................19 7.16 Severability......................................................................................................19 7.17 Waiver..............................................................................................................20 7.18 Third Party Beneficiaries.................................................................................20 7.19 Expedited Processing....................................................................................... 20 7.20 Requests for Payment......................................................................................20 7.21 Entire Agreement.............................................................................................20 7.22 Conflict of Laws..............................................................................................20 7.23 Legal Advice; Neutral Interpretation; Headings and Table of Contents .........20 7.24 Counterparts.....................................................................................................21 7.25 Organization and Standing of Developer.........................................................21 DEVELOPMENT AGREEMENT NO. 2016-00003 BY AND BETWEEN THE CITY OF ANAHEIM AND SAGECREST, LLC THIS DEVELOPMENT AGREEMENT NO. 2016-00003 ("Agreement") is made and entered into as of this day of 2016, by and between the CITY OF ANAHEIM, a charter city and a municipal corporation duly organized and existing under the Constitution and the laws of the State of California ("City"), and SAGECREST, LLC, a California limited liability company ("Developer"), pursuant to the authority set forth in Section 65867 of the California Government Code, and the general authority set forth in section 65864 et seq. of the Government Code (the "Development Agreement Act"), the City's inherent power as a charter city, and the Development Agreement Act implementing procedures adopted by the City in Resolution No. 82R-565 (the "Procedures Resolution"). The definitions contained in Section 1 shall apply to the entire Agreement, including the following RECITALS. RECITALS A. Developer represents that it is under contract to acquire fee title to the Property, and thus has an equitable interest in the Property. Developer has proposed development of the Project, as defined below and depicted on the Site Map (Exhibit A to this Agreement). B. The development of the Project by the Developer will provide sixty (60) new townhome dwelling units within the City's "RM -1" Multiple -Family Residential Zone and the Scenic Corridor (SC) Overlay Zone, which will result in certain public benefits to the City; and C. The Project will provide development fees, certain public infrastructure, private parking and other facilities needed to support the Project; and D. Developer, in consideration of the benefits and opportunities provided to Developer by the Existing Approvals and the cooperation and assistance of the City in connection therewith, will provide assurances to the City that the public infrastructure, amenities and design features of the Project are implemented in a timely manner as set forth in the Existing Approvals; and E. In order to provide certainty and render development of the Project more feasible in light of the large capital investment and time necessary to coordinate and implement the Project, Developer requires assurance from the City that the governmental entitlements contained in the Existing Approvals shall, to the extent specified herein, not be amended or supplemented or burdened with fees, burdens and exactions not otherwise permitted by this Agreement; and F. Developer also recognizes and agrees that in extending these benefits to Developer, the City must retain the Reserved Powers; and G. Concurrently with or prior to approval of this Agreement, the City has approved the following other Project Approvals applicable to the Project, which are hereinafter collectively referred to as the "Existing Approvals": (1) General Plan Amendment No. 2015-00505; (2) Reclassification No. 2015-00284; (3) Conditional Use Permit No. 2015-05832; and (4) Tentative Tract Map No. 17959. H. City and Developer desire to enter into this Agreement in order to assure development of the Property in accordance with the Existing Approvals and provide for vesting of same for the Term of the Agreement, and to assure the City of installation of the design features of the Project and public infrastructure in accordance herewith and as described in the Existing Approvals; and I. On June 13, 2016, the Planning Commission, held a duly noticed public hearing regarding this Agreement and environmental documentation related thereto, and at the conclusion of such hearing, and after consideration of evidence and testimony submitted by City staff, the Developer and all interested parties, adopted a Resolution recommending that the City Council approve this Agreement; and J. The City hereby finds that this Agreement and the Existing Approvals are consistent with the City's General Plan, and the MND satisfies all requirements of the California Environmental Quality Act and the State CEQA Guidelines with respect to this Agreement and the Project; and K. On 2016, the City Council held a duly noticed public hearing regarding this Agreement and, at the conclusion of the hearing, and after considering the recommendation of the Planning Commission, the evidence and testimony submitted by City staff, the Developer and all other interested parties, introduced Ordinance No. approving this Agreement on , 2016, and adopted Ordinance No. on , 2016 (herein referred to as the "Authorizing Ordinance"). NOW, THEREFORE, in consideration of the promises and mutual promises and covenants herein contained and other valuable consideration, the receipt and legal sufficiency of which are hereby acknowledged, the Parties hereto agree as follows: 1. DEFINITIONS. 1.1 "Affiliate of Developer" or "Affiliate" means a sole proprietorship, limited liability company, partnership, limited partnership, joint venture, trust, unincorporated organization, association, corporation, institution, or any other entity owned and controlled by the Developer. 1.2 "AMC" means the Anaheim Municipal Code. 1.3 "Annual Review" means the annual review process as described in Section 5 of this Agreement. 1.4 "Applicable Rules" means (subject only to the qualifications set forth herein with respect to Fees and excluding the Reserved Powers) the rules, regulations, ordinances and officially adopted plans and policies of the City in force as of the Effective Date, including without limitation, the Existing Approvals. Notwithstanding this Section 1.4 or any other provision of this Agreement (i) all duly adopted codes, regulations, specifications and standards regarding the design and construction of public works facilities, if any, shall be those that are in effect at the time the plans for such public works facilities are being processed for approval and/or under construction, and (ii) except as expressly set forth in this Agreement with respect to Impact Fees and Processing Fees and Charges applicable to the Project, Applicable Rules shall mean and include only those Fees in effect as of the Effective Date. 1.5 "CEQA" means the California Environmental Quality Act (Cal. Public Resources Code sections 21000 et seq.), the State CEQA Guidelines (Cal. Code of Regs., Title 14, section 15000 et seq.) and City CEQA Guidelines. 1.6 "City Agency" means each and every agency, department, board. Commission, authority, employee, and/or official acting under the authority of the City that have permit, entitlement or approval authority or jurisdiction over the Project, including, without limitation, the City Council and the Planning Commission. 1.7 "City Attorney" means the City Attorney of the City. 1.8 "City Council" means the City Council of the City. 1.9 "City Manager'' means the City Manager of the City. 1.10 "Conditions of Approval" means those conditions of approval for the Project adopted in connection with the granting of the Existing Approvals. 1.11 "Discretionary Action" means an action which requires the exercise of judgment, deliberation or a decision on the part of the City and/or any City Agency in the process of approving or disapproving a particular activity, as distinguished from an activity which merely requires the City and/or any City Agency to determine whether there has been compliance with statutes, ordinances or regulations. Discretionary Actions shall not include any Ministerial Permits and Approvals. 1.12 "Effective Date" means the effective date of the Authorizing Ordinance. 1.13 "Existing Approvals" means those approvals described in Recital G. 1.14 "Extraordinary Processing Consultant" means a consultant selected by the City to coordinate and expedite processing of applications for all or any Ministerial Permits and Approvals and all or any Discretionary Actions applicable to the Project at the expense of Developer. 1.15 "Fees" means any fees or charges imposed or collected by the City as of the Effective Date other than (i) Impact Fees, Processing Fees and Charges and (ii) fees collected and/or imposed by the City for the benefit of public agencies other than the City. 1.16 "Final Map" means the final map for the Project. 1.17 "General Plan" means the General Plan of the City. 1.18 "Impact Fees" means impact fees, linkage fees, exactions, fair share charges or other similar impact fees or charges imposed on and in connection with new development on a city-wide basis by the City pursuant to rules, regulations, ordinances and policies of the City. Impact Fees shall not include Processing Fees and Charges, the Recreational Amenities Payment, taxes or special assessments. 1.19 "Inspections" means all field inspections and reviews by City officials during the course of construction of the Project and the processing of certificates of occupancy (permanent or temporary). 1.20 "Institutional Lender" means any of the following institutions having assets or deposits in the aggregate of not less than One Hundred Million Dollars ($100,000,000): a California chartered bank; a bank created and operated under and pursuant to the laws of the United States of America; an "incorporated admitted insurer" (as that term is used in Section 1100.1 of the California Insurance Code); a "foreign (other state) bank" (as that term is defined in Section 1700(1) of the California Financial Code); a federal savings and loan association (Cal. Fin. Code Section 8600); a commercial finance lender (within the meaning of Sections 2600 et seq. of the California Financial Code); a "foreign (other nation) bank" provided it is licensed to maintain an office in California, is licensed or otherwise authorized by another state to maintain an agency or branch office in that state, or maintains a federal agency or federal branch in any state (Section 1716 of the California Financial Code); a bank holding company or a subsidiary of a bank holding company which is not a bank (Section 3707 of the California Financial Code); a trust company, savings and loan association, insurance company, investment banker; college or university; pension or retirement fund or system, either governmental or private, or any pension or retirement fund or system of which any of the foregoing shall be trustee, provided the same be organized under the laws of the United States or of any state thereof, and a Real Estate Investment Trust, as defined in Section 856 of the Internal Revenue Code of 1986, as amended, provided such trust is listed on either the American Stock Exchange or the New York Stock Exchange. 1.21 ""Legal Description" means the legal description of the Property attached hereto as Exhibit B and incorporated herein by reference. 1.22 "Litigation" means any lawsuit (including a cross -action) filed against the City and/or Developer which challenges the validity, implementation or enforcement of, or seeks any other remedy directly relating to, all or any party of the Existing Approvals or this Agreement. 1.23 "MND" means the Mitigated Negative Declaration Development prepared to evaluate the physical environmental impacts of the Proj ect Number 2015-00101. 1.24 "Ministerial Permits and Approvals" means the nondiscretionary permits, approvals, plans, inspections, certificates, documents and licenses required to be taken, issued or approved by the City in order for Developer to implement, develop and construct the Project and the Mitigation Measures, including without limitation, building permits, and other similar permits and approvals. 1.25 "Mitigation Measures" means those Mitigation Measures set forth in that certain Mitigation Monitoring Plan No. 333 for the Project. 1.26 "Mortgage" means an instrument or instruments securing one or more financings by the Developer with respect to the construction, development, use or operation of the Project, and includes whatever security instruments are used in the locale of the Project, including, without limitation, mortgages, deeds of trust, security deeds, and conditional deeds, as well as financing statements, security agreements and other documents required pursuant to the Uniform Commercial Code. 1.27 "Mortgagee" means one or more Institutional Lenders holding a beneficial interest and secured position under any Mortgage which have notified City, in writing, of its request for notice under the provision of Section 7.7 hereof. California. 1.28 "Official Records" means the Official Records of Orange County, 1.29 "Parties" means collectively the Developer and the City. 1.30 "Party" means any one of the Developer or the City. 1.31 "Plaintiff means any party seeking relief or compensation through Litigation, whether as plaintiff, petitioner, cross-complainant or otherwise. 1.32 "Planning Commission" means the Planning Commission of the City. 1.33 "Planning Director" means the Planning and Building Director of the City. 1.34 "Processing Fees and Charges" means all processing fees and charges required by the City including, but not limited to, fees and charges for land use applications, Project permits, building applications, building permits, grading permits, encroachment permits, tract or parcel maps, lot line adjustments, air right lots, street vacations, certificates of occupancy and other similar permits. Processing Fees and Charges shall not include Impact Fees. 1.35 "Project" means the development on the Property of sixty (60) townhome dwelling units and associated community space, as more specifically described in the Existing Approvals and as shown on the Site Map. 1.36 "Project Architect" means the architect designated by the Developer as responsible for the design and construction supervision of the Project. 1.37 "Property" means that real property Developer is under contract to purchase, which is legally described in Exhibit B hereto. 1.38 "Public Improvements" means the facilities to be improved, constructed and dedicated to (and, upon completion in accordance with this Agreement, accepted by) the City by the Developer. Public Improvements include sidewalks, all public utilities within the streets (such as electricity and water, but excluding any non -municipal utilities), paths in the public right-of-way, off-site intersection improvements (including but not limited to curbs, curb ramps, medians, signaling, traffic controls devices, signage, and striping), and all other improvements delineated on street improvement plans approved by the City Engineer for the Project during the pendency of the Project. 1.39 "Recreational Amenities Payment" means a payment to be made by Developer to the City in the amount of Two Hundred Thousand Dollars ($200,000) for use by City to provide park and recreational facilities. 1.40 "Reserved Powers" means the rights and authority excepted from this Agreement's restrictions on the City's police powers which are reserved to the City. The Reserved Powers supersede the Applicable Rules to the extent of any inconsistency and include the power to enact and implement rules, regulations, ordinances and policies after the Effective Date that may be in conflict with the Applicable Rules, which either (1) prevent or remedy conditions which the City has found to be injurious or detrimental to the public health or safety; (2) are Uniform Codes; (3) are necessary to comply with state and federal laws, rules and regulations (whether enacted previous or subsequent to the Effective Date) or to comply with a court order or judgment of a state or federal court; (4) are agreed to or consented to by Developer; (5) involve the formation of assessment districts, Mello -Roos Community Facilities Districts, special districts, maintenance districts or other similar districts formed in accordance with applicable laws provided, however, that Developer shall retain all its rights with respect to such districts pursuant to all applicable laws; or (6) are Processing Fees and Charges or City- wide fees or charges of general applicability. 1.41 "Section" means the indicated section or subsection number of this Agreement 1.42 "Site Map" means the map of the Property which is attached thereto as Exhibit A and incorporated herein by reference. 1.43 "Term" means the period of time during which this Agreement shall be in effect and shall bind the City and Developer as provided in Section 7.2 of this Agreement. 1.44 "Uniform Codes" means those building, electrical, mechanical, fire and other similar regulations which are applicable throughout the City, including, but not limited to, the California Building Standards Codes, as adopted by the City Council and codified in Chapter 15.03 (Building Standards Codes and Administrative Provisions Pertaining to Building and Construction) of Title 15 (Buildings and Housing) of the AMC, and the California Fire Code, as adopted by the City Council and codified in Chapter 16.08 (California Fire Code) of Title 16 (Fire) of the AMC, as the same may be amended from time to time by the City. 2. PROPERTY, PURPOSE AND INTENT. 2.1 Property Description. The Property is shown on the Site Map and described in the Legal Description. 2.2 City Objectives. The City desires that the Property be developed as provided for in the Existing Approvals to: (i) create new general fund revenues in excess of the incremental City costs associated with the Project, (ii) provide for the payment by the Developer to the City of the Recreational Amenities Payment, (iii) provide a fully integrated and coordinated development based on comprehensive planning principles; and (iv) to the extent Developer proceeds with the Project, to assure that the Project will be developed as described in the Existing Approvals. 2.3 Developer Objectives. This Agreement is necessary to assure Developer that (i) the Project will not be reduced in density, intensity or use; and (ii) the Project will not be subjected to new rules, regulations, ordinances, or official policies or delays which are not permitted by this Agreement. 2.4 Mutual Objectives. Development of the Project in accordance with this Agreement will provide the assurances required for the development of the Project in accordance with the goals and objectives set forth in the General Plan. Moreover, this Agreement provides additional assurance to the City and Developer that, should Developer proceed with the Project, the installation of necessary improvements will occur in the manner set forth in the Existing Approvals and otherwise achieve the goals and purposes for which the Development Agreement Act was enacted. The Parties believe that such an orderly, coordinated development of the Project will provide many public benefits to the City, including without limitation: delivery by the Developer to the City of the Recreational Amenities Payment, and development of under- utilized properties and uses. 3. AGREEMENT AND ASSURANCES. 3.1 Agreement and Assurance on the Part of Developer. In consideration for the City entering into this Agreement, and as an inducement for the City to obligate itself to carry out the covenants and conditions set forth in this Agreement, and in order to effectuate the purposes and intentions set forth in Section 2 of this Agreement, should Developer proceed with the Project, Developer hereby agrees to (i) develop the Project consistent with the Existing Approvals, and (ii) deliver to the City the Recreational Amenities Payment, by the time set forth therefor in Section 6.2 of this Agreement. 3.2 Agreement and Assurances on the Part of the City. In consideration for Developer entering into this Agreement and delivery of the Recreational Amenities Payment and provision of other public benefits, as further set forth in Section 6 below, and as an inducement for Developer to obligate itself to carry out the covenants and conditions set forth in this Agreement, the City hereby agrees during the term as follows: 3.2.1 Entitlement to Development. Developer has a vested right to develop the Project in accordance with the Existing Approvals subject to the terms and conditions of this Agreement, the Applicable Rules and the Reserved Powers. City shall not revoke or modify the Existing Approvals. 3.2.2 Changes in Applicable Rules. 3.2.2.1 Non -Application of Changes in Applicable Rules. Any change in, or addition to, the Applicable Rules, including, without limitation, any change in any applicable general or specific plan, zoning ordinance or building regulation adopted or becoming effective after the Effective Date, including, without limitation, any such change by means or ordinance, City Charter amendment, initiative, referendum, resolution, motion, policy, order or moratorium, initiated or instituted for any reason whatsoever and adopted by the City Council, Planning Commission or City Agency, or by the electorate, as the case may be, which would, absent this Agreement, otherwise be applicable to the Project and which would conflict with the Applicable Rules or this Agreement, shall not be applied to the Project unless such changes represent an exercise of the City's Reserved Powers or are otherwise expressly allowed by this Agreement or consented to in writing by Developer. 3.2.2.2 Changes in Uniform Code. Notwithstanding any provision of this Agreement to the contrary, construction of the Project shall comply with changes occurring from time to time in the Uniform Codes pursuant to the Reserved Powers. 3.2.2.3 Changes Mandated by Federal or State Law. This Agreement shall not preclude the application to the Project of changes in, or additions to, the Applicable Rules. In the event state or federal laws or regulations prevent or preclude compliance with one or more provisions of this Agreement, such provisions shall be modified or suspended as may be necessary to comply with such state or federal laws or regulations. 3.2.2.4 Special Taxes and Assessments. Developer shall have the right, to the extent permitted by law, to protest, oppose and vote against any and all special taxes, assessments, levies, charges and/or fees imposed with respect to any assessment districts, Mello -Roos Community Facilities Districts, maintenance districts or other similar districts which would include the Property or the Project. 3.2.3 Agreed Changes and Other Reserved Powers. This Agreement shall not preclude application to the Project of rules, regulations, ordinances and officially adopted plans and policies otherwise in conflict with the Applicable Rules if (i) agreed to in writing by Developer, or (ii) result from the Reserved Powers. 3.2.4 Subsequent Development. The City shall not require Developer to obtain any approvals or permits for the development of the Project other than those permits or approvals which are required by the Applicable Rules or the Reserved Powers. 3.2.5 Effective Development Standards. The City agrees that with respect to the Project it is bound to permit development of the Project in accordance with the Existing Approvals including without limitation, the uses, intensity and density as permitted by the Existing Approvals, subject to the Applicable Rules, Reserved Powers and this Agreement. Moreover, the City hereby agrees that it will not unreasonably withhold any Discretionary Action which must be issued by the City in order for the Project to proceed, provided that Developer reasonably and satisfactorily complies with all City-wide standard procedures and policies of the City for processing any such Discretionary Action and pays any applicable Processing Fees and Charges. The City shall accept and timely process, in the normal manner for processing such matters as may then be applicable, all applications for further approvals with respect to the Project called for or required under this Agreement, 3.2.6 Timing and Sequencing of Development. The Project shall be completed in one construction phase, including all general grading, site preparation, utility lines and infrastructure. The Parties acknowledge that Developer cannot at this time predict when or the rate at which the Property will be developed. Such decisions depend upon numerous factors which are not within the control of Developer, such as market demand, interest rates, competition and other similar factors. Because the California Supreme Court held in Pardee Construction Co. v. City of Camarillo (1984) 37 Cal. 3d 455, that the failure of the parties therein to provide for the timing of development resulted in a later adopted initiative restricting the timing of development to prevail over such parties' agreement, it is the Parties' intent to cure that deficiency by expressly acknowledging and providing that Developer shall have the right to develop the Property, or to not develop the Property, in such order and such rate and at such time as Developer deems appropriate within the exercise of its subjective business judgment in its sole and absolute discretion; provided, however, that upon commencement of any work related to the development or construction of the Project, or any portion thereof, the Developer shall diligently prosecute the same to completion without substantial interruption in accordance with applicable permits and requirements under this Agreement, subject to Force Majeure. In the event an ordinance, resolution or other measure, referendum, or initiative is enacted, whether by action of the City or otherwise, which relates to the rate, amount, timing, or sequencing of the development or construction of the Project on all or any part of the Property or the implementation or construction of the Mitigation Measures, City agrees, to the maximum extent permitted by law, that such ordinance, resolution or other measure shall not apply to the Project, the Property or this Agreement, unless such changes are adopted pursuant to the City's exercise of its Reserved Powers or other applicable provisions of this Agreement. 3.2.7 Impact Fees, Credit for Developer Installed Facilities. The Project shall be subject to the Impact Fees and crediting provisions related thereto in force at the time of application and as may be amended from time to time and are not restricted or limited in any way by this Agreement. Nothing contained herein shall be construed to prohibit the City from imposing fees, taxes or assessments on the Property which are unrelated to the approval or implementation of the Project. 3.3 Processing Fees; Extraordinary Processing Consultant Charges and Environmental Review. 3.3.1 Processing Fees and Charges. Developer shall pay all Processing Fees and Charges for Ministerial Permits and Approvals and Inspections at the rate in effect at the time they are sought. 3.3.2 Extraordinary Processing Consultant. Developer may request that the City engage an Extraordinary Processing Consultant to coordinate and expedite the processing of actions required through the Ministerial Permits and Approvals and all Discretionary Actions applicable to the Project. If so requested and the City deems it necessary, in its sole discretion, it will engage such Extraordinary Processing Consultant and the Developer shall reimburse the City for the costs of such Extraordinary Processing Consultant in accordance with the terms of Section 7.20 hereof. 3.3.3 Environmental Review. The City has conducted extensive environmental review of the Project and has adopted the Mitigation Measures. The City intends that Ministerial Permits and Approvals are not actions subject to requirements for further environmental review pursuant to CEQA. 4. DEVELOPMENT PLAN. 4.1 Vested Right to Develop Property. Subject to the terms of this Agreement, Developer shall have a vested right to develop the Property in accordance with, and to receive the benefits set forth and provided in, the Existing Approvals. In the absence of a default by Developer, City shall not revoke, rescind, impede or thwart any of the Existing Approvals. 5. ANNUAL REVIEW, REIMBURSEMENT, DEFAULT, SPECIFIC PERFORMANCE. 5.1 Annual Review. During the Term and so long as this Agreement is in effect, Developer shall initiate and the City shall conduct an Annual Review of Developer's compliance with this Agreement and the Procedures Resolution. Such Annual Review shall be limited in scope to determining good faith compliance with the provisions of this Agreement. The Annual Review shall be initiated and conducted in accordance with the Procedures Resolution. 5.2 Reimbursement of Costs. Developer shall pay to City in advance, the Application Fee for Annual Review required by the City's Procedures Resolution on each occasion that Developer submits its evidence for the Annual Review. Developer shall also reimburse the City for its actual costs, reasonably and necessarily incurred or any legal or financing consultant cost necessary to accomplish review of amendments pursuant to Section 7.5 of this Agreement. Such reimbursement shall be due within thirty (30) days after receipt of invoice from the City. 5.3 Default by Developer. 5.3.1 Default. In the event the City reasonably determines that Developer has failed to perform any of its obligations under this Agreement, or that any such obligations are not performed in a timely manner, the City may pursue only those remedies expressly provided for in this Agreement; provided, however, that the City's right to compel specific performance of the obligations of Developer under this Agreement shall be subject to the limitations set forth in Section 5.3.4. Further, the City shall have no right to monetary damages except as set forth in Section 5.4.2. 5.3.2 Notice of Default. In the event the City reasonably determines that Developer is in default of any of its obligations under this Agreement, the City shall send a notice of such alleged default(s) to Developer in which the allegations of default shall be set forth in sufficient detail to enable Developer to ascertain the specific actions necessary to cure the alleged default(s). Upon receipt of a notice of default, Developer shall promptly commence to cure the identified default(s) at the earliest reasonable time after receipt of such notice but in no event more than thirty (30) days after receipt of notice and shall complete the cure of (i) any monetary default(s) not later than thirty (30) days after the receipt of such notice of default, and (ii) any non -monetary default(s) not later than ninety (90) days after the receipt of such notice of default or such longer period as necessary to cure default as agreed to by City in its sole discretion. The Parties may mutually agree in writing to extend the time periods set forth in this Section. 5.3.3 Termination for Failure to Cure Default. If after the cure period provided for in Section 5.3.2 has lapsed and the Planning Director reasonably finds and determines that Developer remains in default, the Planning Director shall make a report to the City Council concerning such default and the City Council may thereafter proceed to modify or terminate this Agreement in accordance with the Procedures set forth in Sections 7.2 and 7.3 of the Procedures Resolution. 5.3.4 Specific Performance. Except as provided in this Section 5.3.4, the City shall have no right under this Agreement to seek a remedy of specific performance with respect to the Project in the event of an abandonment of the Project after construction has commenced. The City's right to seek specific performance to compel completion of the Project (including portions of the Project) in the event of such abandonment after construction has commenced shall be specifically limited to (i) compelling Developer, at the election of the City in its sole discretion, to complete or demolish any uncompleted improvements located on public property initiated in connection with the Project with the choice of whether to demolish or complete such improvements and the method of such demolition or completion of such improvements to be selected by the City in its sole discretion, and (ii) compelling Developer, at the election of the City in its sole discretion, to complete or make safe and secure any uncompleted improvements located on the Property with the choice of whether to demolish, complete or secure such improvements and the method of such demolition, completion and securing of such improvements to be selected by Developer in its sole discretion. The City's specific performance remedy shall include the right to require dedication to the City of the improvements located on public property upon completion together with conveyance of real property as contemplated by this Agreement. Prior to Commencement of Construction, Developer shall post a performance bond or other security in an amount and form reasonably satisfactory to the City Attorney to guarantee demolition or securing of such uncompleted improvements located on public property and/or located on the Property. The Developer's contractor's performance bond from a creditworthy bonding company assigned to the City is a performance bond that will be acceptable to City. Nothing in this Section 5.3.4 shall limit the City's enforcement of all applicable provisions of the Applicable Rules, Existing Approvals, Mitigation Measures, and Uniform Code for any portion of the Project then or thereafter constructed (e.g., requiring Developer to build sewer laterals required under Applicable Rules to serve the Project actually completed), termination of this Agreement in accordance with the provisions hereof notwithstanding. In addition, nothing in this Section shall limit or restrict in any way the City's monetary remedies as provided for in Section 5.4.2 hereof. 5.3.5 Damages. The City shall have the right to recover (1) actual damages only (and not consequential, punitive or special damages, each of which is hereby expressly waived) for (a) the Developer's failure to pay sums to the City as and when due under this Agreement, but subject to any express conditions for such payment set forth in this Agreement, and (b) the Developer's failure to make payment due under any indemnity in this Agreement, (2) any and all damages relating to the Developer's failure to construct Public Improvements in accordance with City -approved plans and specifications and in accordance with all applicable laws (but only to the extent that the City first collects against any security, including but not limited to bonds, for such Public Improvements), and (3) attorney's fees and costs when awarded by an arbitrator or a court with jurisdiction. For purposes of the foregoing, "actual damages" shall mean the actual amount of the sum due and owing under this Agreement, with interest as provided by law, together with such judgment collection activities as may be ordered by the judgment and no additional sums. 5.4 Default by City. 5.4.1 Notice of Default. In the event the Developer reasonably determines that the City is in default of any of its obligations under this Agreement, the Developer shall send a notice of such alleged default(s) to the City in which the allegations of default shall be set forth in sufficient detail to enable the City to ascertain the specific actions necessary to cure the alleged default(s). Upon receipt of written notice of default from Developer, the City shall promptly commence to cure the identified default(s) at the earliest reasonable time after receipt of the notice of default and shall complete the cure of such default(s) not later than sixty (60) days after receipt of the notice of default or such longer period as necessary to cure default as agreed to by the Developer in its sole discretion. The Parties may mutually agree in writing to extend the time periods set forth in this Section. 5.4.2 Specific Performance and Mandamus. It is acknowledged by the Parties that the City would not have entered into this Agreement if it were to be liable in damages under or with respect to this Agreement or the application thereof. In addition, the Parties agree that monetary damages are not an adequate remedy for Developer if the City should be determined to be in default under this Agreement. The Parties further agree that specific performance and mandamus shall be Developer's only remedies under this Agreement and Developer may not seek monetary damages in the event of a default by the City under this Agreement. Developer covenants not to sue for or claim any monetary damages in the event of a default by the City under this Agreement (including without limitation special, incidental or consequential damages) and expressly waives its right to recover damages under this Agreement. Developer may seek specific performance of City's obligations under this Agreement or a writ of mandate pursuant to Code of Civil Procedure sections 1085 or 1094.5, as applicable, to compel the City to take or refrain from taking any action, or to modify any action taken, that is necessary to effectuate the terms of this Agreement only after serving written notice of the alleged default(s) on City and lapse of the period given for City to cure such default(s), all in accordance with Section 5.4.1, and for so long as City remains in default of its obligations under this Agreement. 6. PUBLIC BENEFITS. 6.1 Increase in Property Taxes. The Project will generate significant additional property taxes. 6.2 Recreational Amenities Payment. Developer shall deliver to the City the Recreational Amenities Payment in the amount of Two Hundred Thousand and No/100 Dollars ($200,000.00), which payment shall be paid to the City prior and as a condition precedent to the City's approval of the Final Map. Said amount shall be used by the City, in its sole discretion, to fund certain public park and recreational improvements which may be constructed by the City near the Project. 7. GENERAL PROVISIONS. 7.1 Date Agreement Becomes Effective. This Agreement shall become effective on the Effective Date. 7.2 Term 7.2.1 Basic Term. The Term of this Agreement shall commence on the Effective Date of this Agreement and shall extend for a period of five (5) years after the Effective Date, unless extended or earlier terminated as provided herein. 7.2.2 Early Termination of Agreement. This Agreement is terminable: (i) by mutual written agreement of the Parties; or (ii) by either Party following an uncured default by the other Party under this Agreement, subject to the procedures and limitations set forth in this Agreement; or (iii) upon the occurrence of the entry of a final judgment or issuance of a final order, after all appeals have been exhausted, directed to the City as a result of any lawsuit filed against the City to set aside, withdraw or abrogate the approval of the City Council of this Agreement; or (iv) if termination occurs pursuant to the provisions of the Procedures Resolution and such termination is so intended thereby. 7.2.3 Automatic Termination of Agreement. If not already terminated by reason of any other provision in this Agreement, or for any other reason, this Agreement shall automatically terminate and be of no further force and effect upon completion of the Project pursuant to the terms of this Agreement and any further amendments thereto and the issuance of all occupancy permits and acceptance by the City of all dedications and improvements as required by the development of the Project. 7.2.4 Effect of Termination. Following expiration of the Term, early termination pursuant to Section 7.2.2 above, or automatic termination pursuant to Section 7.2.3, this Agreement shall be of no further force and effect, except for any provisions which, by their express terms, survive the expiration or termination of this Agreement. 7.3 Force Majeure: Extension of Time of Performance. In addition to specific provisions of this Agreement, whenever a period of time is designated within which either Party hereto is required to do or complete any act, matter or thing, both the time for the doing or completion thereof and the Term of this Agreement and the specific obligation hereunder shall be extended by a period of time equal to the number of days which such Party is prevented from, or is unreasonably interfered with the doing or completion of such act, matter or thing because of the following causes, which causes are beyond the reasonable control of the Party to be excused including: war, terrorist acts, insurrection; strikes; walk -outs; riots; floods; earthquakes; fires; unavoidable casualties; acts of God; Litigation and administrative proceedings which are brought against the Project by a third party (not including any administrative proceedings contemplated by this Agreement in the normal course of affairs such as the Annual Review); restrictions imposed or mandated by other governmental entities ("Governmental Restrictions"); enactment of conflicting state or federal laws or regulations ("Conflicting Laws"); judicial decisions ("Judicial Decisions"); or similar bases for excused performance which is not within the reasonable control of the Party to be excused (financial inability excepted). This Section shall not be applicable to, bankruptcy or receivership initiated by or on behalf of Developer or, if not dismissed within ninety (90) days, by any third parties against Developer. A Party wishing to invoke this Section shall notify in writing the other Party of that intention within thirty (30) days of the commencement of any such cause for delay and shall, at that time, specify the reasons therefor, the provisions of this Agreement that will be delayed as a result, and the period of such extension, if known, or, if not known, the party's best estimate thereof. The failure to so notify the other Party within that period as to the cause for delay shall constitute a waiver of any right to later rely upon this Section with respect to that cause. In the event any such extension continues for more than one hundred eighty (180) days, any Party not then in Default of its obligations hereunder, shall be entitled to terminate this Agreement upon written notice to the other and, in that event, the Parties shall have no further obligations hereunder. 7.4 Applicable Law. This Agreement shall be construed and enforced in accordance with the laws of the State of California, and the venue for any legal actions brought by any Party with respect to this Agreement shall be the County of Orange, State of California, for state actions, and the Orange County Division of the Central District of California for any federal actions. 7.5 Amendments. This Agreement may be amended from time to time in writing in accordance with Government Code section 65868 and the Procedures Resolution. 7.6 Assignment. 7.6.1 Right to Assign. Developer shall have the right to sell, mortgage, hypothecate, assign or transfer this Development Agreement, and any and all of its rights, duties and obligations hereunder, to any person, partnership, joint venture, firm or corporation at any time during the term of this Agreement, provided that any such sale, mortgage, hypothecation, assignment or transfer must be pursuant to a sale, assignment or other transfer of the interest of Developer in the Property (or a portion thereof), which, prior to Developer's acquisition of fee title to the Property shall mean and refer to Developer's equitable interest in the Property. In the event of any such sale, mortgage, hypothecation, assignment or transfer, (a) Developer shall notify the City of such event and the name of the transferee, together with the corresponding entitlements being transferred to such transferee and (b) the agreement between Developer and such transferee shall provide that the transferee shall be liable for the performance of all obligations of Developer pursuant to this Agreement and the Existing Approvals with respect to Developer's interest in the Property (or portion thereof) so transferred. Upon the express written assumption of any and all of the obligations of Developer under this Agreement by such transferee, the transfer shall, without any act of or concurrence by the City, relieve Developer of its legal duty to perform said obligations under this Agreement with respect to Developer's interest in the Property (or portion thereof), so transferred, except to the extent Developer is in default under the terms of this Agreement. 7.7 Mortgage Rights. 7.7.1 Encumbrances on the Property and this Agreement. The Parties hereto agree that this Agreement shall not prevent or limit Developer, in any manner, at Developer's sole and absolute discretion, from encumbering the Property or any portion thereof or any improvements thereon with any Mortgage. Developer is hereby given the express right, in addition to any other rights herein granted, to grant a Mortgage on its interests in this Agreement or any part or parts thereof, under one or more Mortgages and to assign this Agreement as collateral security for any such Mortgage. 7.7.2 Mortgagee Protection. This Agreement shall be superior and senior to the lien of any Mortgage. Notwithstanding the foregoing, no breach of this Agreement shall defeat, render invalid, diminish, or impair the lien of any Mortgage made in good faith and for value, and any acquisition or acceptance of title or any right or interest in or with respect to the Property or any portion thereof, or to this Agreement, by a Mortgagee (whether pursuant to foreclosure, lease termination or otherwise) shall upon written election by the Mortgagee within sixty (60) days after receipt of such right, title or interest, be subject to all of the terms and conditions of this Agreement and any such Mortgagee who takes title to the Property or any portion thereof, or to this Agreement, shall also be entitled to the rights and obligations arising under this Agreement. 7.7.3 Mortgagee Not Obligated. Notwithstanding the provisions of this Section 7.7, a Mortgagee will not have any rights, obligations or duties pursuant to the terms set forth in this Agreement to perform the obligations of Developer or other affirmative covenants of Developer hereunder or to guarantee such performance, unless such Mortgagee expressly assumes the rights and obligations of the Developer and except that (i) the Mortgagee shall upon written election by the Mortgagee within sixty (60) days after receipt of such right, title or interest, have no right to develop the Project without fully complying with the terms of this Agreement, and (ii) to the extent that any covenant to be performed by Developer is a condition to the performance of any covenant by the City, the performance thereof shall continue to be a condition precedent to the City's performance hereunder. Although not obligated to do so, upon written election by the Mortgagee within sixty (60) days after receipt of such right, title or interest, any Mortgagee may do any act or thing required by Developer hereunder, and do any act or thing which may be necessary and properly done in the performance and observance of the agreements, covenants and conditions hereof to prevent termination of this Agreement in accordance with Section 7.7.4. Any Mortgagee and its agents and contractors shall have full access to the Property for purposes of accomplishing any of the foregoing. Any of the foregoing done by any Mortgagee shall be as effective to prevent a termination of this Agreement as if the same would have been done by the Developer. 7.7.4 Notice of Default to Mortgagee: Right of Mortgagee to Cure. Each Mortgagee shall, upon written request to City be entitled to receive written notice from the City of the result of the Annual Review and of any default by Developer of its obligations set forth in this Agreement simultaneously with the delivery of such notices to the Developer. Each Mortgagee shall have the right, but not an obligation, to cure such default within ninety (90) days after receipt of such notice or, if such default can only be remedied or cured by such Mortgagee upon obtaining possession of the Property, such Mortgagee shall have the right to seek or obtain possession with diligence and continuity through a receiver or otherwise, and to remedy or cure such default within ninety (90) days after obtaining possession, and, except in case of emergency or to protect the public health or safety as determined by the City in its reasonable discretion, City may not exercise any of its remedies set forth in this Agreement until expiration of such ninety (90) day period whether commencing upon receipt of notice or upon obtaining possession of the interests covered by a Mortgage, as applicable; provided, however, that in the case of a default which cannot with diligence be remedied or cured or the remedy or cure of which cannot be commenced within such ninety (90) day period, the Mortgagee shall have such additional time as is reasonably necessary to remedy or cure such default. Any notice of termination delivered in violation of this Section 7.7.4 shall be rendered void. In any case where, sixty (60) days after receipt by the Mortgagee of the notice of the Developer's default, the holder of any Mortgage creating a lien or encumbrance upon the Property, or any part thereof, has not exercised the option to cure, or, if it has exercised the option, is not proceeding diligently with the cure, the City may proceed with termination of this Agreement and any further obligations of City hereunder. 7.7.5 Bankruptcy. Notwithstanding the foregoing provisions of this Section 7.7, if any Mortgagee is prohibited from commencing or prosecuting foreclosure or other appropriate proceedings in the nature thereof by any injunction issued by any court or by reason of any action by any court having jurisdiction of any bankruptcy or insolvency proceeding involving Developer, the times specified in Section 7.7.4 for commencing or prosecuting foreclosure or other proceedings shall be extended for the period of the prohibition. In addition, if this Agreement is rejected or otherwise terminated in connection with any such proceeding, then upon the request of any mortgagee, a new development agreement upon the same terms and conditions set forth in this Agreement may be entered into between such Mortgagee and City. 7.7.6 Termination Subject to Mortgagee Rights. All rights of the City to terminate this Agreement, vis-a-vis the Mortgagee, as a result of the occurrence of any default shall be subject to, and conditioned upon, the City having first given to each Mortgagee written notice of the default as required under 7.7.4 above, and all Mortgagees having failed to remedy such default or acquire Developer's interests hereunder, or having failed to commence foreclosure or other appropriate proceedings in the nature thereof as set forth in Section 7.7.4 above. 7.7.7 No Cancellation. There shall be no cancellation, surrender or modification of this Agreement by joint action of the Parties without a minimum of ninety (90) days prior written notice to each Mortgagee who has requested such notice. 7.7.8 New Agreement Upon Default by Developer. City agrees that in the event of termination of this Agreement by reason of a default by Developer, the City will enter into a new development agreement with the most senior Mortgagee whose Mortgage encumbers this Agreement requesting a new development agreement for the remainder of the term of this Agreement, such new agreement being effective as of the date of such termination, and containing such terms, provisions, covenants and agreements as herein contained, provided: (a) The senior Mortgagee shall make written request upon City for such new development agreement within thirty (30) days after the date of termination; (b) The senior Mortgagee shall pay to the City at the time of the execution and delivery of such new development agreement any and all sums which would, at the time of the execution and delivery thereof, be due and unpaid pursuant to this Agreement but for its termination; including any expenses, attorneys' fees and costs, to which the City was subjected by reason of such default; (c) The senior Mortgagee shall perform and observe all covenants herein contained on Developer's part to be performed, and shall further remedy any other conditions which Developer was obligated to perform under the terms of this Agreement, and to the extent that same are curable or may be performed by the senior Mortgagee; and (d) Notwithstanding anything to the contrary expressed or implied elsewhere in this Agreement, any new development agreement made pursuant to this Section shall be superior to any Mortgage to the same extent as this Agreement. 7.7.9 Separate Agreement. The City shall, upon request, execute, acknowledge and deliver to each Mortgagee an agreement prepared at the sole cost and expense of the Developer (including related legal fees incurred by the City), in form satisfactory to each Mortgagee and City, between City, Developer and the Mortgagee(s), confirming all of the provisions hereof and/or such other documents containing terms and provisions customarily required by Institutional Lenders in connection with such financing, provided, however, the City shall not be obligated to approve any terms that would impair or adversely affect the rights and obligations of the City, or otherwise amend this Agreement and/or the obligations of the Developer as set forth in this Agreement 7.7.10 Material Notices. The Developer shall give all Mortgagees notice of any Litigation and the parties hereby consent to intervention in such Litigation by the Mortgagee. In the event any Mortgagee shall not elect to intervene or become a party to the proceedings, such Mortgagee shall be provided notice and a copy of any award or decision made in connection therewith. 7.7.11 Mortgagee Right to Assign. Foreclosure of any Mortgage, or any sale thereunder, whether by judicial proceedings or by virtue of any power contained in the Mortgage, or any conveyance of the interest of Developer hereunder to any Mortgagee or its designee through, or in lieu of, foreclosure or other appropriate proceedings in the nature thereof, shall not require the consent of the City or constitute a breach of any provision of or a default under this Agreement; and upon such foreclosure, sale or conveyance, the City will recognize the purchaser or other transferee in connection therewith as the Developer hereunder. 7.8 Covenants. The provisions of this Agreement shall constitute covenants which run with the land comprising the Property for the benefit thereof and as a burden thereon, and the burdens and benefits hereof shall bind and inure to the benefit of all assignees, transferees and successors to the parties. 7.9 Implementation. Upon satisfactory completion by Developer of all required applications and payment of applicable Processing Fees and Charges, including the fee for processing this Agreement, if Developer proceeds with the Project, the City and Developer shall commence and diligently process all required steps necessary for the implementation of this Agreement and development of the Project in accordance with the terms of this Agreement. Developer shall, in a timely manner, provide the City with all documents, plans and other information necessary for the City to carry out its processing obligations hereunder. 7.10 Relationship of the Parties. It is specifically understood and agreed by and between the Parties hereto that the Project is a private development, that neither Party is acting as the agent of the other in any respect hereunder, and that each Party is an independent contracting entity with respect to the terms, covenants and conditions contained in this Agreement. The only relationship between the City and the Developer is that of a government entity regulating the development of private property and the owner of such private property. Further, the City and Developer hereby renounce the existence of any form of joint venture or partnership between them and agree that nothing herein or in any document executed in connection herewith shall be construed as making the City and Developer joint venturers or partners. 7.11 Cooperation in the Event of Third Party Litigation. In the event legal action is instituted by a third party, including any other governmental entity or official challenging the validity or enforceability of any provision of this Agreement, or the Existing Approvals vested pursuant to this Agreement, other actions taken pursuant to CEQA, or any other action by either Party in properly performing hereunder, the Parties hereby agree to affirmatively cooperate with each other in defending said action and the validity of each provision of this Agreement; provided, however, that Developer agrees to and shall defend, indemnify, save and hold the City and its elected and appointed representatives, boards, commissions, offices, agents, employees, consultants and attorney's (collectively, the "City" in this section 7.11) harmless from any and all claims, costs and liability, including without limitation, court costs and attorneys' fees awarded to any party, to the extent they result from any such Litigation, and shall reimburse the City for its actual costs in defense of the action or proceeding, including, but not limited to the time and expenses of the City Attorney's Office and any consultants. As the indemnifying Party and provided that Developer demonstrates to City, to City's reasonable satisfaction, that Developer has the financial wherewithal to indemnify the City hereunder at the time of any such Litigation, Developer shall at all times retain final authority and control over all documents to be filed in such Litigation and notwithstanding the provisions of this Section 7.11, the City shall be deemed to have waived its rights to be indemnified hereunder if the City settles any Litigation, in whole or in part, or files any documents in such Litigation without Developer's prior written approval, which approval shall not be unreasonably withheld. This section shall survive any judgment invalidating all or any part of this Agreement. The Developer shall be entitled to choose legal counsel to defend against any such legal action and shall pay any attorneys' fees awarded against the City or the Developer, or both, resulting from any such legal action. The Developer shall be entitled to any award of attorneys' fees arising out of any such legal action. 7.12 Notices. Any notice or communication required hereunder between the City and Developer must be in writing, and may be given either personally, by registered or certified mail, return receipt requested or by overnight courier. If given by registered or certified mail, the same shall be deemed to have been delivered and received on the first to occur of (i) actual receipt by any of the addresses designated below as the Party to whom notices are to be sent, or (ii) five (5) days after a registered or certified letter containing such notice, properly addressed, with postage prepaid, is deposited in the United States mail. If personally delivered or delivered by courier, a notice shall be deemed to have been delivered when received by the Party to whom it is addressed. Any Party hereby may at any time, by giving ten (10) day's written notice to the other Party hereto, designate any other address in substitution of the address, or any additional address, to which such notice or communication shall be given. Such notices or communications shall be given to the Parties at their addresses set forth below: If to City: City Clerk City of Anaheim 200 South Anaheim Blvd., 2"d Floor Anaheim, CA 92805 If to Developer: Greg McCafferty Sagecrest, LLC 2400 East Katella Anaheim, CA 92806 With Copies to: City Attorney City of Anaheim 200 South Anaheim Blvd., Suite 356 Anaheim, CA 92805 With Copies to: John A. Ramirez, Esq. Rutan & Tucker, LLP 611 Anton Blvd, 14th Floor Costa Mesa, CA 92626 7.13 Recordation. The City's Clerk shall record a copy of this Agreement with the Registrar -Recorder of Orange County within ten (10) business days following the later to occur of (i) execution by both parties, or (ii) the Effective Date of the Authorizing Ordinance. To the extent that the Property consists of property under Lease by Developer, this Agreement shall encumber only the leasehold interest and shall not constitute an encumbrance upon the estate in fee. 7.14 Developer Hold Harmless. Developer hereby agrees to and shall indemnify, save, hold harmless and defend the City, and its elected and appointed representatives, boards, commissions, officers, agents, employees, consultants and attorneys (collectively, the "City" in this Section 7.14), from any and all claims, costs, and liability of any kind which may arise, directly or indirectly, from any of Developer's acts or omissions under, related to, or in any respect connected with this Agreement and/or the development, of the Property and/or the Project, and/or Developer's activities on the Property (or the activities of the Developer's employees, contractors, subcontractors, agents, representatives, or independent contractors on the Property), including without limitation the construction of the Project. Nothing in this Section shall be construed to mean that Developer shall hold the City harmless and/or defend it to the extent that such claims, costs or liability arise from the negligent acts, or negligent failure to act, on the part of the City. City agrees that it shall fully cooperate with Developer in the defense of any matter in which Developer is defending and/or holding the City harmless and at no cost to City. Notwithstanding anything in this Agreement which is or appears to be to the contrary, the obligations set forth herein shall survive the Term, termination or earlier expiration of this Agreement. 7.15 Successors and Assigns. Subject to the limitations on transfer set forth in this Agreement, all of the provisions, agreements, rights, powers, standards, terms, covenants and obligations contained in this Agreement shall be binding upon and shall inure to the benefit of the Parties, and their respective successors (by merger, consolidation or otherwise), assigns and transferees, and all persons or entities acquiring the Property or any portion thereof or any interest therein, whether by sale, operation of law, or in any manner whatsoever. 7.16 Severability. If any provisions, conditions, or covenants of this Agreement, or the application thereof to any circumstances of either Party, shall be held invalid or unenforceable, the remainder of this Agreement or the application of such provision, condition, or covenant to persons or circumstances other than those as to whom or which it is held invalid or unenforceable shall not be affected thereby and shall be valid and enforceable to the fullest extent permitted by law. 7.17 Waiver. No waiver of any provision of this Agreement shall be effective unless in writing and signed by the Party against whom enforcement of a waiver is sought and such waiver refers expressly to the Section containing the waived provision. No waiver of any right or remedy in respect of any occurrence or event shall be deemed a waiver of any right or remedy in respect of any other occurrence or event. 7.18 Third Party Beneficiaries. There are no third party beneficiaries to this Agreement and this Agreement is not intended, and shall not be construed to benefit or be enforceable by any other persons or entities other than the Parties. 7.19 Expedited Processing. Developer and City agree to cooperate in the expedited processing of any legal action seeking mandamus, specific performance, declaratory relief or injunctive relief, to set court dates at the earliest practicable date(s) and not cause delay in the prosecution/defense of the action, provided such cooperation shall not require any Party to waive any rights. 7.20 Requests for Payment. Except for the Recreational Amenities Payment, with respect to any requests by the City for payment of amounts due under this Agreement, Developer retains its right to review any invoices or requests for payments submitted by the City pursuant to this Agreement. Developer shall review and reasonably approve such invoices or requests for payment or shall identify any disputed amounts within twenty (20) days after receipt. At Developer's request, the City shall provide Developer with reasonable information or back-up materials supporting such invoices or requests for payment at City offices, with reasonable notice, during business hours. In the event of any disputed invoices or requests for payment, Developer shall timely pay all amounts not disputed. 7.21 Entire Agreement. This Agreement and the documents, agreements and exhibits referenced herein or attached hereto set forth and contain the entire understandings and agreements of the parties, and there are no oral or written representations, understandings or ancillary covenants, undertakings or agreements which are not contained or expressly referred to herein and no testimony or evidence of any such representations, understandings, or covenants shall be admissible in any proceedings of any kind or nature to interpret or determine the provisions or conditions of this Agreement. 7.22 Conflict of Laws. With the exception of the Force Majeure provisions set forth in Section 7.3 hereof, it is agreed by the Parties that the obligations and conditions contained in the Existing Approvals and Mitigation Measures govern the development of the Property. To the extent that any provisions of this Agreement may conflict with any of the obligations, conditions or mitigations imposed on Developer pursuant to the Existing Approvals and Mitigation Measures, the Existing Approvals and Mitigation Measures shall govern. 7.23 Legal Advice, Neutral Interpretation, Headings and Table of Contents. Each Party has received independent legal advice from its attorneys with respect to the advisability of executing this Agreement and the meaning of the provisions hereof. The provisions of this Agreement shall be construed as to their fair meaning, and not for or against any Party based upon any attribution to such Party as the source of the language in question. The headings and table of contents used in this Agreement are for the convenience of reference only and shall not be used in construing this Agreement. 7.24 Counterparts. This Agreement is executed in six duplicate originals, each of which is deemed to be an original. 7.25 Organization and Standing of Developer. Developer is a limited liability company duly organized, qualified and validly existing and in good standing under the laws of the State of California, and has all requisite power and authority to enter into and perform its obligations under this Agreement. All consents or approvals of Developer's members required in connection with the execution and delivery by the Developer of this Agreement will have been obtained and delivered to the City. [Remainder of page intentionally left blank. Signatures appear on next page.] IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as of the date first written below. Dated: ATTEST: LINDA N. ANDAL, CITY CLERK IM APPROVED AS TO FORM: Theodore J. Reynolds Assistant City Attorney "CITY" CITY OF ANAHEIM, a municipal corporation and charter city "DEVELOPER" SAGECREST, LLC, a California limited liability company Un Gregory McCafferty Its: Member go Joshua Haskins Its: Member A Notary Public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document. State of California County of On before me, , (insert name and title of the officer) Notary Public, personally appeared who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Signature (Seal) A Notary Public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document. State of California County of On before me, , (insert name and title of the officer) Notary Public, personally appeared who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Signature (Seal) A Notary Public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document. State of California County of Orange On , before me, (insert name and title of the officer) Notary Public, personally appeared who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Signature (Seal) EXHIBIT "A" SITE MAP TTM No. 17959 415 SOUTH ANAHEIM HILLS ROAD, ANAHEIM HILLS, CA 92807 A.P.N. No. 363-472-03 VICINITY MAPMi iwl glawl.,�. Is ------------------------------ m _ ----- — L------------------- —._._ — 155 :+—• ` y �No O F-��i."5..� FFc c Tc SECTION A•A (NfS) -- R d : RxE xaw.T urAnw ©,^°me ui :'ePiwm rxF muana: � ora«„r.T i.,xc *�.ECE xoxx'omdn�T IVT.. v .i 8r'a"maw x u«o ............. wgTnc wnwr u�E UR=xcx_ rcv P:�'ui aT UIE nxewa�.:ea �ac;a c� scAtx NCF7M1 Ilk I HAM I JONIF ?l LAND DEVELOPMENT, INC. SAGECREST TENTATIVE TRACT - FOR CONDOMNNM PURPO6E8 2ND SUBMITTAL DATE: JUNE, 2016 N'O TENTATIVE TRACT MAP TM�ax TTM No. 17959 SOIRH AIIAHOM HILLS ROAD, ANAHOM HILLS, CA l2T07 �¢ APN No. 353 42-03 CITY OF ANAHEIM COUNTY OF ORANGE, CALIFORNIA USA 1 EXHIBIT "B" LEGAL DESCRIPTION LEGAL DESCRIPTION OF THE PROPERTY THE LAND REFERRED TO HEREIN BELOW IS SITUATED IN THE CITY OF ANAHEIM, IN THE COUNTY OF ORANGE, STATE OF CALIFORNIA, AND IS DESCRIBED AS FOLLOWS: PARCEL 2 OF PARCEL MAP NO. 88-335, AS PER MAP FILED IN BOOK 245 PAGES 11 TO 18 INCLUSIVE OF PARCEL MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY. EXCEPT THEREFROM ALL OIL, OIL RIGHTS, NATURAL GAS RIGHTS, MINERAL RIGHTS, AND OTHER HYDROCARBON SUBSTANCES BY WHATEVER NAME KNOWN, TOGETHER WITH APPURTENANT RIGHTS THERETO, WITHOUT, HOWEVER, ANY RIGHT TO ENTER UPON THE SURFACE OF SAID LAND NOR ANY PORTION OF THE SUBSURFACE LYING ABOVE A DEPTH OF 500 FEET, AS RESERVED BY TEXACO ANAHEIM HILLS, INC., A CORPORATION, IN THE CORPORATION GRANT DEED RECORDED JANUARY 4, 1983, AS INSTRUMENT NO. 83-002464, OF OFFICIAL RECORDS. APN: 363-472-03